Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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 in Ocampo 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 inLansang 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; 17the 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 " 24in 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:

xxxxxxxxx

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.

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; 17the 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 " 24in 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.

Footnotes

** The Philippine presidency under the 1935 Constitution was patterned in large measure
after the American presidency. But at the outset, it must be pointed out that the Philippine
government established under the constitutions of 1935, 1973 and 1987 is a unitary
government with general powers unlike that of the United States which is a federal
government with limited and enumerated powers. Even so, the powers of the president of the
United States have through the years grown, developed and taken shape as students of that
presidency have demonstrated.

FERNAN, C. J.:

1 From the speech "Restrictions on Human Rights-States of Emergency, National Security,

Public Safety and Public Order" delivered at the Lawasia Seminar on Human Rights, Today
and Tomorrow: The Role of Human Rights Commissions and Other Organs, at the Manila
Hotel on August 27, 1988.

CRUZ, J.

1 In addition, he invokes the right as a basic human right recognized by the Universal
Declaration ration of Human Rights. ni

2 S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency Situations:
Under development, Catastrophies and Armed Conflicts, The International Dimensions of
Human Rights, Vol. 1 Unesco, 1982, pp. 175-204.

3 P. Hassan, The Word "Arbitrary" as used in the Universal Declaration of Human Rights:
"Illegal or Unjust", 10 Harv Int. L.J., p. 225 (1969). 4 FC Newman and IC Vasak Civil and
Political Rights, The International Dimensions of Human Rights, pp. 135-166.

4 F.C. Newman and K.Vasak and Poitical Rights, The International Dimensions of Human
Rights, pp. 135-166.5as to whether the U.S. Federal Government will allow Mr. Marcos to
leave the United States, is beyond the issues in this case; similarly, as to how the Philippine
government should deal with Mr. Marcos upon his return is also outside of the issues in this
case.

5 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States,
is beyond the issues in this case; similarly, as to how the Philippine Government should deal
with Mr. Marcos upon his return is also outside of the issues in this case.

SARMIENTO, J.:

1 Decision, 4.

2 See supra, 1-4.

3 Supra, 2.

4 CONST., art. Ill, see. 6.

5 Decision, supra, 18; emphasis in the original.

6 Supra, 20-21.

7 Supra, 21-22.

* But see Cruz, J., Dissenting.

8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).

9 Republic v. Quasha, No L-30299, Aug. 17, 1972, 46 SCRA 160,169.

10 CONST., supra.

11 Supra.

12 CONST. (1973), art. IV, sec. 5.

13 Supra.

14 See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 263

(1987 ED.)

15 CONST. (1987), art III, sec. 6, supra.

16 See Supra ,Aart VII, sec 18.

17 See Go Tek v. Deportation Board , No. L-23846, September 9, 1977, 79 scra 17.

18 See Lansang v. Garcia, Nos. L-33964, 33965, 33973, 33982, 34004, 34013, 34039, 34265,
and 34339, December 11, 1971, 42 SCRA 448, 480.
19 Decision, supra, 21.

20 Supra.

21 Supra.

22 Supra, 22.

23 Abraham ("Ditto") Sarmiento, Jr., then Editor-in-Chief, Philippine Collegian (1975-1976),

official student organ of the University of the philippines. He was detained in the military
stockade for commoncriminals from Jan. to Aug, 1976.

24 SPI No. 79-347 ("For: Violation of Presidential Decree No. 90 and Article 142 of the
Revised Penal Code, as amended the JG.R. No. 54180, Diosdado Macapagal, Rogaciano M.
Mercado, Manuel A. Concordia, and Abraham F. Sarmiento, Petitioners, vs- The Preliminary
Investigating Panel in SPI No. 79-347 [Hamilton B. Dimaya Brigadier General, AFP, The
Judge Advocate General, Chairman; Leon 0. Ridao Colonel, JAGS GSC Deputy Judge
Advocate General, Member; and Amor B. Felipe, Colonel, JAGS (GSC) Executive Officer,
Member], and the Minister of National Defense, Respondent Supreme Court.

25 See Santos v. The Special Commottee on Travel, et al., G.R. No. L-45748, June 28, 1977,
of which the undersigned was the counsel of the petitioner.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 88211 October 27, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M.

ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO
E. MARCOS, NICANOR 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.

RESOLUTION

EN BANC:

In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7),
dismissed the petition, after finding that the President did not act arbitrarily or with grave
abuse of discretion in determining that the return of former President Marcos and his family at
the present time and under present circumstances pose a threat to national interest and
welfare and in prohibiting their return to the Philippines. On September 28, 1989, former
President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said:

In the interest of the safety of those who will take the death of Mr. Marcos in widely and
passionately conflicting ways, and for the tranquility of the state and order of society, the
remains of Ferdinand E. Marcos will not be allowed to be brought to our country until such
time as the government, be it under this administration or the succeeding one, shall otherwise
decide. [Motion for Reconsideration, p. 1; Rollo, p, 443.]

On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the
following major arguments:

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.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 121234 August 23, 1995

HUBERT J. P. WEBB, petitioner,

vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of
Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON
L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO
FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE
AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque,
Branch 274, respondents, LAURO VIZCONDE, intervenor.

G.R. No. 121245 August 23, 1995

MICHAEL A. GATCHALIAN, petitioner,

vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of
Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON
L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF
INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of
the Regional Trial Court of Paraaque, Branch 274, respondents.

G.R. No. 121297 August 23, 1995

ANTONIO L. LEJANO, petitioner,

vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of
Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON
L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO
FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE
AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque,
Branch 274,respondents.

PUNO, J.:

Before the Court are petitions for the issuance of the extraordinary writs of certiorari,
prohibition and mandamuswith application for temporary restraining order and preliminary
injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by
respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2)
enjoin the respondents from conducting any proceeding in the aforementioned criminal case;
and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1

From the records of the case, it appears that on June 19, 1994, the National Bureau of
Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners
Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime
of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors
headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary
investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N.
Vizconde; 4 her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their
home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila.

During the preliminary investigation, the NBI presented the following: (1) the sworn statement
dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the
commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the
Webb family in the persons of Nerissa E. Rosales and Mila S.Gaviola; 8 (3) the sworn-statement
of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines
Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his
co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of
Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime
at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde
maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an
engineer. The autopsy reports of the victims were also submitted and they showed that Carmela
had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital
examination of Carmela confirmed the presence of spermatozoa. 11

Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for
Production And Examination of Evidence and Documents for the NBI to produce the
following:

(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and
stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;

(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan,
M.D.;

(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7,
1991);

(d) Photographs of fingerprints lifted from the Vizconde residence taken during the
investigation;

(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;

(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated
September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;

(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro
(other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police
agencies;
(h) transmittal letter to the NBI, including the report of the investigation conducted by
Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;

(i) The names of NBI officials/agents composing the Task Force Jecares, including their
respective positions and duties;

(j) Statements made by other persons in connection with the crime charged.

The motion was granted by the DOJ Panel and the NBI submitted photocopies of the
documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This
compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of
Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn
statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr.,
produced a copy of said original in compliance with a subpoena duces tecum. The original
was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It
appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal
Bureau of Investigation (FBI) Report despite his request for its production.

Petitioner Webb claimed during the preliminary investigation that he did not commit the crime
at bar as he went to the United States on March 1, 1991 and returned to the Philippines on
October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia
Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further
support his defense, he submitted documentary evidence that he bought a bicycle and a 1986
Toyota car while in the United States on said dates 14 and that he was issued by the State of
California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted
the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing
certain records tending to confirm, among others, his arrival at San Francisco, California on March
9, 1991 as a passenger in United Airlines Flight No. 808.

The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony
Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn
statements, responses, and a motion to dismiss denying their complicity in the rape-killing of
the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their
counter-affidavits though they were served with subpoena in their last known address. 17In his
sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29,
1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends,
Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed
that his co-petitioner Lejano was with him.

On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to
hold respondents for trial" and recommending that an Information for rape with homicide be
filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding
Information 19 against petitioners and their co-accused with the Regional Trial Court of Paraaque.
The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by
respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing
judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11,
1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his
impartiality considering his employment with the NBI before his appointment to the bench. The
case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants
of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb
voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig.
Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their
petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino
gravely abused their discretion when they failed to conduct a preliminary examination before
issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its
discretion in holding that there is probable cause to charge them with the crime of rape with
homicide; (3) the DOJ Panel denied them their constitutional right to due process during their
preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative
when it failed to charge Jessica Alfaro in the Information as an accused.

We find the petitions bereft of merit.

Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22,
1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer
on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn
statements. They assail her credibility for her misdescription of petitioner Webb's hair as
semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not
examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn
statements of the witnesses for the NBI.

We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule

112 provides that a preliminary investigation should determine " . . . whether there is a
sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional
Trial Court has been committed and that the respondent is probably guilty thereof, and should
be held for trial." Section 3 of the same Rule outlines the procedure in conducting a
preliminary investigation, thus:

Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information

for an offense cognizable by the Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following manner:

(a) The complaint shall state the known address of the respondent and be accompanied by
affidavits of the complainant and his witnesses as well as other supporting documents, in
such number of copies as there are respondents, plus two (2) copies for the official file. The
said affidavits shall be sworn to before any fiscal, state prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, a notary public, who must
certify that he personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the
respondent, attaching thereto a copy of the complaint, affidavits and other supporting
documents. Within ten (10) days from receipt thereof, the respondent shall submit
counter-affidavits and other supporting documents. He shall have the right to examine all
other evidence submitted by the complainant.

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall
also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall
be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating officer shall base his
resolution on the evidence presented by the complainant.

(e) If the investigating officer believes that there are matters to be clarified, he may set a
hearing to propound clarificatory questions to the parties or their witnesses, during which the
parties shall be afforded an opportunity to be present but without the right to examine or
cross-examine. If the parties so desire, they may submit questions to the investigating officer
which the latter may propound to the parties or witnesses concerned.

(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall
resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the
investigating officer shall determine whether or not there is sufficient ground to hold the
respondent for trial.

Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the
respondent for trial, he shall prepare the resolution and corresponding information. He shall
certify under oath that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses, that there is reasonable ground to believe that a
crime has been committed and that the accused is probably guilty thereof . . ."

The need to find probable cause is dictated by the Bill of Rights which protects "the right of the
people to be secure in their persons . . . against unreasonable searches and seizures of
whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person,
and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause
to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law
reiterate that they are facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed by the person sought to be
arrested. 22 Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent
and cautious man. 24 The terms are legally synonymous and their reference is not to a person with
training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought
to be emphasized that in determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of our technical rules of evidence of which his
knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men
have an abundance.

Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused
its discretion when it found probable cause against the petitioners. Petitioners belittle the
truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner
Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2)
sworn statement, thus: 26

xxx xxx xxx

To illustrate, the following are some examples of inconsistencies in the two sworn statements
of Alfaro:

On whether Alfaro knew Carmela before the incident in question

First Affidavit: She had NOT met Carmela before June 29, 1991.

Second Affidavit: "I met her in a party sometime in February, 1991."

On whether Alfaro saw the dead bodies

First Affidavit: She did not see the three dead persons on that night. She just said "on the
following day I read in the newspaper that there were three persons who were killed . . ."

Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the
bed, bloodied, and in the floor, I saw Hubert on top of Carmela."

On the alleged rape of Carmela Vizconde

First Affidavit: She did not see the act of rape.

Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping,
her mouth gagged and she was moaning and I saw tears on her eyes."

On how Webb, Lejano, and Ventura entered the Vizconde house

First Affidavit: "by jumping over the fence, which was only a little more than a meter high."

Second Affidavit: They "entered the gate which was already open."

On whether Alfaro entered the Vizconde house

First Affidavit: She never entered the house.

Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen."

In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies
did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27

xxx xxx xxx

As regards the admissibility of Alfaro's statements, granting for purposes of argument merely
that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be
taken as evidence to show the probability of the co-conspirator's participation in the
commission of the crime (see People vs. Lumahang, 94 Phil. 1084).

Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct

evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior
agreement be demonstrable since, in the nature of things, criminal undertakings are only
rarely documented by agreements in writing. Thus, conspiracy may be inferred from the
conduct of the accused before, during and after the commission of the crime, showing that the
several accused had acted in concert or in unison with each other, evincing a common
purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted;
People vs. Molleda, 86 SCRA 699).

Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn
statements. InAngelo, the Court refused to discredit the testimony of a witness accusing
therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed
to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court
continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to
discredit the entire testimony of the witness.

On August 7, 1995, another counsel for respondent Webb submitted his memorandum
suggesting that the instant complaint "should not be decided within the month to give time to
the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert
Webb . . . and to check on our U.S.-based witnesses."

In said memorandum, counsel for respondent Webb calls for the application of the
maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements,
among others. This is untenable. As held in Angelo:

There is no rule of law which prohibits a court from crediting part of the testimony of a witness
as worthy of belief and from simultaneously rejecting other parts which the court may find
incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone
a general rule of law which is universally applicable. It is not a legal presumption either. It is
merely a latinism describing the conclusion reached by a court in a particular case after
ascribing to the evidence such weight or lack of weight that the court deemed proper.

In the case before us, complainant reasoned out that Alfaro was then having reservations
when she first executed the first statement and held back vital information due to her natural
reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two
sworn statements have been sufficiently explained especially specially so where there is no
showing that the inconsistencies were deliberately made to distort the truth. Consequently,
the probative value of Alfaro's testimony deserves full faith and credit. As it has been often
noted, ex parte statements are generally incomplete because they are usually executed when
the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the
import of her statement and to narrate in full the incidents which transpired (People vs.
Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there
is no dispute that a crime has been committed and what is clear before us is that the totality of
the evidence submitted by the complainant indicate a prima faciecase that respondents
conspired in the perpetration of the imputed offense.

We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of
counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was
planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting
sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos
J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo
Biong. The Panel assayed their statements as follows: 29

xxx xxx xxx

According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991,
between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room
with two male visitors. She knew it because she and her co-housemaid, Loany, were
instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert
and was later told by then Congressman Webb that Hubert was in the United States.

While Mila S. Gaviola, another former housemaid of the Webb family and who served as a
laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on
June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she
entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that
early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants,
already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered
clothes and brought them together with the clothes of the other members of the family to the
laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she
was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she
finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go
up to the stockroom near Hubert's room to see what he was doing. In the said stockroom,
there is a small door going to Hubert's room and in that door there is a small opening where
she used to see Hubert and his friends sniffing on something. She observed Hubert was quite
irritated, uneasy, and walked to and from inside his room.

On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back
at around 4:00 in the same afternoon and went inside his room using the secret door of the
house. It was the last time that she saw Hubert until she left the Webb family.

On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the
morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take
the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby,
he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb
answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew
Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He
observed that the man whom Freddie Webb referred to as his son, was of the same height as
Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He
(son of Webb) was then wearing a striped white jacket. When he and his children were
already inside the plane, he did not see Freddie anymore, but he noticed his son was seated
at the front portion of the economy class. He never noticed Freddie Webb's son upon their
arrival in San Francisco. He claims that, while watching the television program "DONG PUNO
LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when
she described Hubert as "moreno" and small built, with a height of five feet and seven inches
tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts
because such description does not fit the physical traits of the son of Freddie, who left with
him for United States on the same flight and date.

Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for
almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their
relationship started in February, 1991 until she broke up with him in September 1993. She
recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the
canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall.

At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque
police told Biong that he has a phone call. Before Biong went to the radio room, she was
instructed to take him over and after somebody won the game, she followed Biong at the radio
room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin
kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon
lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen
apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a
male passenger sitting at the backseat and parked near the canteen. After it made some
signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then,
they left. She was not able to recognize the male passenger because the window of the taxi
was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he
immediately washed his hands and face, and took his handkerchief from his pocket which he
threw at the trash can. She asked him why he threw his handkerchief and he answered,
"Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang
inang mga batang iyon, pinahirapan nila ako."

Biong later invited her for breakfast, but they first went to his office where she observed him
doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan,
another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF,
imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of
Capt. Don Bartolome who offered to accompany him and with whom she asked permission to
go with them. Before they proceeded to the place where the killings happened, she asked
Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon."
She was surprised because Galvan never told him the place of the incident.

As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to
contact the victim's relatives, while the security guard fetched the barangay chairman and the
president of the Homeowners Association. When all these persons were already in the house,
Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong
took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt.
Bartolome went out of the room and proceeded to the dining area. On top of the dining table,
she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the
room and proceeded to the front door to remove the chain lock; asked the keys from the
housemaid and it was only then that the main door was opened. Biong noticed a stone in front
of the broken glass of the door and requested Capt. Bartolome to go inside the servant's
quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the
handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came
out of the room and told Biong that he can hear the sound of the glass being broken. At the
garage, Biong also noticed same marks on the hood of the car.

On the following day, at around 12:00 noon, Biong arrived in her house together with the
Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from
his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's
license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace,
and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry
items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow
restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at
the Paraaque Police Station an imported brown leather jacket, which the latter claimed to
have been given to him by the person who called him up in the early morning of June 30,
1991.

Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She
observed that Biong seemed not interested in pursuing the investigation of the Vizconde case.
In fact, when Biong and this group picked up Mike Gatchalian and brought him to the
Paraaque Police Station, she was surprised that Biong halted the investigation when
Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian
talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him
(Colonel Pureza) and that was the last thing she remembered regarding this case.

The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of
petitioners. It ruled:30

xxx xxx xxx

The voluminous number of exhibits submitted by respondent Webb to support his defense of
denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the
records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi
cannot prevail over the positive identification made by a prosecution witness. Verily, alibi
deserves scant consideration in the face of positive identification especially so where the
claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA
124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases).

Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight
than the declaration of a credible witness who testified on affirmative matters (People vs.
Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more
weaker when arrayed against the positive identification by the witness for the prosecution
(People vs. Onpaid, 233 SCRA 62 [1994]).

Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed
was with him watching video tapes at the Syyap residence. Other than claiming that he "was
not and could not have been at or near the area of the Vizconde residence at the time of the
alleged commission of the crime," respondent Lejano proffered no evidence to substantiate
his claim of alibi.

xxx xxx xxx

On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the
form of documents tending to show that he was thousands of miles away when the incident
occurred. We have carefully deliberated and argued on the evidence submitted by respondent
Webb in support of his absence from the country since March 9, 1991 to October 26, 1992
and found the same wanting to exonerate him of the offense charged. The material dates in
this case are June 29 and 30, 1991. While respondent Webb may have submitted proof
tending to show that he was issued a California driver's license on June 14, 1991, there is no
showing that he could not have been in the country on the dates above mentioned. Neither do
we find merit in the allegation that respondent Webb personally bought a bicycle on June 30,
1991 in California in view of his positive identification by Alfaro and the two (2) househelps of
the Webb family who testified that he was here in the country on said dates. Additionally, the
issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof
that the name appearing thereon was the actual buyer of the merchandise.

Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the
DOJ Panel did not gravely abuse its discretion when it found probable cause against the
petitioners. A finding of probable cause needs only to rest on evidence showing that more
likely than not a crime has been committed and was committed by the suspects. Probable
cause need not be based on clear and convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause
demands more than "bare suspicion," it requires "less than evidence which would justify . . .
conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a
pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable
cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call
the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory
questions is addressed to the sound discretion of the investigator and the investigator alone. If
the evidence on hand already yields a probable cause, the investigator need not hold a
clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should
be determined in a summary manner. Preliminary investigation is not a part of trial and it is
only in a trial where an accused can demand the full exercise of his rights, such as the right to
confront and cross-examine his accusers to establish his innocence. In the case at bar, the
DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable
cause and clarificatory hearing was unnecessary.

II

We now come to the charge of petitioners that respondent Judge Raul de Leon and, later,
respondent Judge Amelita Tolentino issued warrants of arrest against them without
conducting the required preliminary examination. Petitioners support their stance by
highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours;
(2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial
court were incomplete and insufficient from which to base a finding of probable cause; and (4)
that even Gerardo Biong who was included in the Information as a mere accessory had a "NO
BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to
conduct a "searching examination of witnesses and evaluation of the documents" on the part
of said judges.

The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less
than the fundamental law of the land. Section 2 of Article III of the Constitution provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce and particularly describing the place to be
searched and the persons or things to be seized.

The aforequoted provision deals with the requirements of probable cause both with respect to
issuance of warrants of arrest or search warrants. The similarities and differences of their
requirements ought to be educational. Some of them are pointed out by Professors LaFave
and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required
whether one is concerned with probable cause to arrest or probable cause to search. But each
requires a showing of probabilities as to somewhat different facts and circumstances, and thus one
can exist without the other. In search cases, two conclusions must be supported by substantial
evidence: that the items sought are in fact seizable by virtue of being connected with criminal
activity, and that the items will be found in the place to be searched. It is not also necessary that a
particular person be implicated. By comparison, in arrest cases there must be probable cause that
a crime has been committed and that the person to be arrested committed it, which of course can
exist without any showing that evidence of the crime will be found at premises under that person's
control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in
the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section
6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may
issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing
search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:

xxx xxx xxx

Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon
probable cause in connection with one specific offense to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the things to be
seized.

Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under oath
the complainant and any witnesses he may produce on facts personally known to them and
attach to the record their sworn statements together with any affidavits submitted.

Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts
upon which the application is based, or that there is probable cause to believe that they exist,
he must issue the warrant, which must be substantially in the form prescribed by these Rules.

We discussed the difference in the Procedure of issuing warrants of arrest and search
warrants in Soliven vs. Makasiar, 33 thus:

xxx xxx xxx

The second issue, raised by Beltran, calls for an interpretation of the constitutional provision
on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant
of authority by the 1973 Constitution to issue warrants to "other responsible officers as may
be authorized by law," has apparently convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant and his witnesses in his
determination of probable cause for the issuance of warrants of arrest. This is not an accurate
interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of arrest, the judge is not required
to personally examine the complainant and his witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the report and the documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or
(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusions as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.

Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission
of petitioners that respondent judges should have conducted "searching examination of witnesses"
before issuing warrants of arrest against them. They also reject petitioners' contention that a judge
must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule
requiring the issuance of an Order of Arrest prior to a warrant of arrest.

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2)
sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as
well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of
the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable
cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants
of arrest, judges merely determine personally the probability, not the certaintyof guilt of an
accused. In doing so, judges do not conduct a de novo hearing to determine the existence of
probable cause. They just personally review the initial determination of the prosecutor finding a
probable cause to see if it is supported by substantial evidence. The sufficiency of the review
process cannot be measured by merely counting minutes and hours. The fact that it took the
respondent judges a few hours to review and affirm the probable cause determination of the DOJ
Panel does not mean they made no personal evaluation of the evidence attached to the records of
the case. 36

Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is
predicated on the utter failure of the evidence to show the existence of probable cause. Not even
the corpus delicti of the crime was established by the evidence of the prosecution in that case.
Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial
judge to make a further personal examination of the complainant and his witnesses to reach a
correct assessment of the existence or non-existence of probable cause before issuing warrants of
arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly
discussed, the various types of evidence extant in the records of the case provide substantial
basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a
given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense
of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore
unnecessary for the respondent judges to take the further step of examining ex parte the
complainant and their witnesses with searching questions.

III

Petitioners also complain about the denial of their constitutional right to due process and
violation of their right to an impartial investigation. They decry their alleged hasty and
malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity
that attended their preliminary investigation.

We reject these contentions. The records will show that the DOJ Panel did not conduct the
preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove
lack of probable cause against them. The fairness of this opportunity is well stressed in the
Consolidated Comment of the Solicitor General, viz.:

Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be
heard. Petitioner Webb actively participated in the preliminary investigation by appearing in
the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by
filing a "Motion for Production and Examination of Evidence and Documents" on June 27,
1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for
Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and
Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7,
Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also
sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a
copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the
material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14,
1995). In fact, not satisfied with the decision of the DOJ Panel not to issue subpoena duces
tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari,
Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to
compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission
to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader
produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling
on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements
of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A.
Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F."

It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary
investigation was to be terminated after the hearing held on July 14, 1995, the panel
continued to conduct further proceedings, e.g. comparison of the photo-copies of the
submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even
entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17
Resolution) In addition to these, the panel even announced that any party may submit
additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel
declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27)
days elapsed before the resolution was promulgated, and the information eventually filed in
the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive
of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall
resolve the case within ten (10) days from the termination of the preliminary investigation. The
DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the
panel to study the evidence submitted more fully. This directly disputes the allegation of the
petitioners that the resolution was done with indecent haste in violation of the rights of the
petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce
and present additional evidence before the DOJ Panel.

Verily, petitioners cannot now assert that they were denied due process during the conduct of
the preliminary investigation simply because the DOJ Panel promulgated the adverse
resolution and filed the Information in court against them.

Petitioners cannot also assail as premature the filing of the Information in court against them
for rape with homicide on the ground that they still have the right to appeal the adverse
resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in
accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We
quote its pertinent sections, viz.:

Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of

the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding
probable causeexcept upon showing of manifest error or grave abuse of
discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no
appeal shall be entertained where the appellant had already been arraigned. If the appellant
is arraigned during the pendency of the appeal, said appeal shall be dismissed motu
propio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall
not hold the filing of the information in court.

Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from
receipt of the questioned resolution by the party or his counsel. The period shall be
interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of
the resolution and shall continue to run from the time the resolution denying the motion shall
have been received by the movant or his counsel. (Emphasis supplied)

Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court
after the consummation of the preliminary investigation even if the accused can still exercise
the right to seek a review of the prosecutor's recommendation with the Secretary of Justice.

Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her
alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of
Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program
And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10,
which provides:

xxx xxx xxx

Sec. 10. State Witness. Any person who has participated in the commission of a crime and
desires to a witness for the State, can apply and, if qualified as determined in this Act and by
the Department, shall be admitted into the Program whenever the following circumstances are
present:

(a) the offense in which his testimony will be used is a grave felony as defined under the
R.P.C. or its equivalent under special laws;

(b) there is absolute necessity for his testimony;

(c) there is no other direct evidence available for the proper prosecution of the offense
committed;

(d) his testimony can be substantially corroborated on its material points;

(e) he does not appear to be most guilty; and

(f) he has not at anytime been convicted of any crime involving moral turpitude.

An accused discharged from an information or criminal complaint by the court in order that he
may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of
Court may upon his petition be admitted to the Program if he complies with the other
requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that
he can be used as a Witness under Rule 119 of the Revised Rules of Court.

Upon qualification of Alfaro to the program, Section 12 of the said law mandates her
non-inclusion in the criminal Complaint or Information, thus:

xxx xxx xxx

Sec. 12. Effect of Admission of a State Witness into the Program. The certification of
admission into the Program by the Department shall be given full faith and credit by the
provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE
CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for
his discharge in order that he can be utilized as a State Witness. The court shall order the
discharge and exclusion of the said accused from the information.

Admission into the Program shall entitle such State Witness to immunity from criminal
prosecution for the offense or offenses in which his testimony will be given or used and all the
rights and benefits provided under Section 8 hereof.

The validity of these provisions is challenged by petitioner Webb. It is urged that they
constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power
under the Rules on Criminal Procedure to discharge an accused as a state witness." The
argument is based on Section 9, Rule 119 38which gives the court the prerogative to approve the
discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the
faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of
courts and beyond executive and legislative interference. In truth, the prosecution of crimes
appertains to the executive department of government whose principal power and responsibility is
to see that our laws are faithfully executed. A necessary component of this power to execute our
laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide
range of discretion the discretion of whether, what and whom to charge, the exercise of which
depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold
that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the
Department of Justice the power to determine who can qualify as a witness in the program and
who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the
proposition that the power to choose who shall be a state witness is an inherent judicial
prerogative. Under this provision, the court, is given the power to discharge a state witness only
because it has already acquired jurisdiction over the crime and the accused. The discharge of an
accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function.
Moreover, the Rules of Court have never been interpreted to be beyond change by legislation
designed to improve the administration of our justice system. R.A. No. 6981 is one of the much
sought penal reform laws to help government in its uphill fight against crime, one certain cause of
which is the reticence of witnesses to testify. The rationale for the law is well put by the
Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually
refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because
of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of
evidence. For a more effective administration of criminal justice, there was a necessity to pass a
law protecting witnesses and granting them certain rights and benefits to ensure their appearance
in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981
cannot therefore succeed.

Further, petitioners charge the NBI with violating their right to discovery proceedings during
their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn
statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it
urges an expansive reading of the rights of persons under preliminary investigation it
deserves serious consideration. To start with, our Rules on Criminal Procedure do not
expressly provide for discovery proceedings during the preliminary investigation stage of a
criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move
for a bill of particulars and for production or inspection of material evidence in possession of the
prosecution.42 But these provisions apply after the filing of the Complaint or Information in court
and the rights are accorded to the accused to assist them to make an intelligent plea at
arraignment and to prepare for trial. 43

This failure to provide discovery procedure during preliminary investigation does not, however,
negate its use by a person under investigation when indispensable to protect his
constitutional right to life, liberty and property. Preliminary investigation is not too early a stage
to guard against any significant erosion of the constitutional right to due process of a potential
accused. As aforediscussed, the object of a preliminary investigation is to determine the
probability that the suspect committed a crime. We hold that the finding of a probable cause
by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the
case at bar, the risk to the liberty of petitioners cannot be understated for they are charged
with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is
strong.

Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary
investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation
conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized
in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before
being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some
other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary
investigation should therefore be scrupulously conducted so that the constitutional right to liberty
of a potential accused can be protected from any material damage. We uphold the legal basis of
the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28,
1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation
considering their exculpatory character, and hence, unquestionable materiality to the issue of their
probable guilt. The right is rooted on the constitutional protection of due process which we rule to
be operational even during the preliminary investigation of a potential accused. It is also implicit in
section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn
complaint, which shall ". . . state the known address of the respondent and be accompanied by
affidavits of the complainant and his witnesses as well as other supporting documents . . ."

In laying down this rule, the Court is not without enlightened precedents from other
jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held
that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or
punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney
v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction
violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence
in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society wins not only
when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat
litigation like a game of poker where surprises can be sprung and where gain by guile is not
punished.

But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their
favor, we are not prepared to rule that the initial non-production of the original sworn
statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that
the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995,
upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement.
It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July
28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of
the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the
original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus
had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation
the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still
found probable cause to charge them despite the alleged material discrepancies between the first
and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable
cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI
Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable
cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI.

Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to
the prejudicial publicity waged in the press and broadcast media by the NBI.
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.

In floating this issue, petitioners touch on some of the most problematic areas in constitutional
law where the conflicting demands of freedom of speech and of the press, the public's right to
information, and an accused's right to a fair and impartial trial collide and compete for
prioritization. The process of pinpointing where the balance should be struck has divided men
of learning as the balance keeps moving either on the side of liberty or on the side of order as
the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult
act to follow.

In 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 the
public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held:

xxx xxx xxx

(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal
trials both here and in England had long been presumptively open, thus giving assurance that
the proceedings were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized: when a shocking
crime occurs, a community reaction of outrage and public protest often follows, and thereafter
the open processes of justice serve an important prophylactic purpose, providing an outlet for
community concern, hostility, and emotion. To work effectively, it is important that society's
criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99
L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process.
From this unbroken, uncontradicted history, supported by reasons as valid today as in
centuries past, it must be concluded that a presumption of openness inheres in the very
nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States,
362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedoms such as those of
speech and press, the First Amendment can be read as protecting the right of everyone to
attend trials so as to 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 it was deliberately linked by
the draftsmen. A trial courtroom is a public place where the people generally and
representatives of the media have a right to be present, and where their presence
historically has been thought to enhance the integrity and quality of what takes place.

(c) Even though the Constitution contains no provision which by 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 trials 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 could 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., 54 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.

It all remains to state that the Vizconde case will move to a more critical stage as petitioners
will now have to undergo trial on the merits. We stress that probable cause is not synonymous
with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of
its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge
the difficult task of supervising every specie of speech relating to the case at bar, it behooves
her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity
prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to
dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary
always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the
business of the judiciary is to assure fulfillment of the promise that justice shall be done and is
done and that is the only way for the judiciary to get an acquittal from the bar of public opinion.

IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of
discretion on the part of the respondents. Costs against petitioners.

SO ORDERED.

Regalado, J., concurs.

Mendoza, J., concurs in the result.

Narvasa, C.J., is on leave.

 Separate Opinion

FRANCISCO, J., concurring:

The thrust of petitioners' arguments involve the validity and exercise of the prosecutory
powers of the State. Maintaining their innocence, petitioners assert that the filing of an
information and the issuance of warrants of arrest against them were without probable cause.
Petitioners, in my considered view, failed to make a case to warrant the Court's interference.

Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to
determine whether a crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is
not intended to find guilt beyond reasonable doubt. Courts should give deference, in the
absence of a clear showing of arbitrariness, as in this case, to the finding and determination of
probable cause by prosecutors in preliminary investigations. If not, the functions of the courts
will be unduly hampered by innumerable petitions compelling the review of the exercise of
discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an
information in court their finding can be immediately brushed aside at the instance of those
charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must
look askance at unmeritorious moves that could give a dent in the efficient and effective
administration of justice.

Petitioners characterize the evidence against them to be inherently weak and

uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is
best assayed in the trial proper. In the search for truth, a trial has distinct merits over a
preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret
out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's
defense or accusation as well as the admissibility or inadmissibility of testimonies and
evidence are better ventilated during the trial stage than in the preliminary investigation level.
The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best
determined at the trial.

With respect to petitioners' contention that public respondent judge failed to personally
examine and determine the existence of probable cause for the issuance of a warrant, suffice
it to say that the judge does not have to personally examine the complainant and his
witnesses in order to issue a warrant of arrest as he can rely on the certification of the
prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30,
1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and
sufficient basis on record that support the trial court's issuance of the warrant as petitioners
themselves do not contend that the prosecutors' certification was unaccompanied by the
records of the preliminary investigation to take their case outside the ambit of the rule.
Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or
exhaustive the judge's examination of the certification, report and findings of the preliminary
investigation and its annexes should be as this depends not only upon the sound exercise of
the judge's discretion in personally determining the existence of probable cause, but also from
the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides,
respondent judge, being a public officer, enjoys the presumption of regularity in the
performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants
of arrest against petitioners thus can not be said to be whimsical or arbitrary.

Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution
and the Rules of Court enumerate an array of rights upon which an accused can seek
protection and solace. To mention a few: he has the right to be presumed innocent until the
contrary is proved, the right against self-incrimination, the right to remain silent, to confront
and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to
be heard by himself and counsel, to have competent and independent counsel preferably of
his own choice. These rights are afforded to the accused and not to the complainant.
Therefore, petitioners need not be distressed if they henceforth go to trial.

I vote to dismiss the petitions.

Mendoza, J., concurs.

Separate Opinion

FRANCISCO, J., concurring:

The thrust of petitioners' arguments involve the validity and exercise of the prosecutory
powers of the State. Maintaining their innocence, petitioners assert that the filing of an
information and the issuance of warrants of arrest against them were without probable cause.
Petitioners, in my considered view, failed to make a case to warrant the Court's interference.

Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to
determine whether a crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is
not intended to find guilt beyond reasonable doubt. Courts should give deference, in the
absence of a clear showing of arbitrariness, as in this case, to the finding and determination of
probable cause by prosecutors in preliminary investigations. If not, the functions of the courts
will be unduly hampered by innumerable petitions compelling the review of the exercise of
discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an
information in court their finding can be immediately brushed aside at the instance of those
charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must
look askance at unmeritorious moves that could give a dent in the efficient and effective
administration of justice.

Petitioners characterize the evidence against them to be inherently weak and

uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is
best assayed in the trial proper. In the search for truth, a trial has distinct merits over a
preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret
out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's
defense or accusation as well as the admissibility or inadmissibility of testimonies and
evidence are better ventilated during the trial stage than in the preliminary investigation level.
The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best
determined at the trial.

With respect to petitioners' contention that public respondent judge failed to personally
examine and determine the existence of probable cause for the issuance of a warrant, suffice
it to say that the judge does not have to personally examine the complainant and his
witnesses in order to issue a warrant of arrest as he can rely on the certification of the
prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30,
1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and
sufficient basis on record that support the trial court's issuance of the warrant as petitioners
themselves do not contend that the prosecutors' certification was unaccompanied by the
records of the preliminary investigation to take their case outside the ambit of the rule.
Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or
exhaustive the judge's examination of the certification, report and findings of the preliminary
investigation and its annexes should be as this depends not only upon the sound exercise of
the judge's discretion in personally determining the existence of probable cause, but also from
the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides,
respondent judge, being a public officer, enjoys the presumption of regularity in the
performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants
of arrest against petitioners thus can not be said to be whimsical or arbitrary.

Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution
and the Rules of Court enumerate an array of rights upon which an accused can seek
protection and solace. To mention a few: he has the right to be presumed innocent until the
contrary is proved, the right against self-incrimination, the right to remain silent, to confront
and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to
be heard by himself and counsel, to have competent and independent counsel preferably of
his own choice. These rights are afforded to the accused and not to the complainant.
Therefore, petitioners need not be distressed if they henceforth go to trial.

I vote to dismiss the petitions.

Mendoza, J., concurs.

Footnotes

1 Petitioner Webb filed his petition on August 11, 1995; petitioner Gatchalian on August 14,
1995 and petitioner Lejano on August 16, 1995. Mr. Lauro Vizconde intervened on August 17,
1995.

2 The (6) others were Miguel "Ging" Rodriguez , Joey Filart, Hospicio "Pyke" Fernandez,
Artemio "Dong" Ventura, Peter Estrada and Gerardo Biong.

3 The other members of the Panel were Senior State Prosecutor Leonardo C. Guiab, Jr.,
State Prosecutor Roberto A. Lao and State Prosecutor Pablo C. Formaran, III.

4 Then 19 years of age.

5 Then 51 years of age.

6 Then 7 years of age.

7 Resolution of the Zuo Panel, Annex "A" Petition, pp. 2-7.

8 Ibid, pp. 7-8.

9 Ibid, pp. 8-12.

10 Ibid, p. 13.

11 Ibid.

12 Ibid, pp. 13-14.

13 Ibid, pp. 13-14.

14 Ibid, pp. 14-16.

15 Ibid, p. 15.

16 Ibid, pp. 16-18.

17 Ibid, p. 18.

18 Except Gerardo Biong who was recommended to be charged as an accessory.

19 Annex "B", Petition.

20 Section 2, Article III of the 1987 Constitution.

21 Yee Sue Koy v. Almeda, 70 Phil. 141 [1940].

22 Bernas, The Constitution of the Republic of the Philippines, a Commentary, Vol. I, 1987
ed., pp. 86-87.

23 Brinegar v. US, 338 US 160 [1949].

24 Del Carmen, Criminal Procedure, Law and Practice, 3rd ed., p. 86.

25 Ibid.

26 Petition, pp. 18-19.

27 Annex "A," Petition, pp. 25-27.

28 Atty. Florante Dizon, a counsel of choice.

29 Annex "A," Petition, pp. 11-17.

30 Annex "A," Petition, pp. 23-24.

31 338 US 160 [1949].

32 LaFave and Israel, Criminal Procedure, Hornbook Series, 1985 ed., pp. 109-110.

33 167 SCRA 397-398.

34 See also Cruz, Jr. v. People, 233 SCRA 439 [1994].

35 See Annex "A," Consolidated Comment of the Solicitor General.

36 See Enrile vs. Salazar, 186 SCRA 217 [1990].

37 232 SCRA 192 [1994].

38 Sec. 9. Discharge of accused to be state witness. When two or more persons are jointly
charged with the commission of any offense, upon motion of the prosecution before resting its
case, the court may direct one or more of the accused to be discharged with their consent so
that they may be witnesses for the state when after requiring the prosecution to present
evidence and the sworn statement of each proposed state witness at a hearing in support of
the discharge, the court is satisfied that:

(a) There is absolute necessity for the testimony of the accused whose discharge is
requested.

(b) There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in its material points;

(d) Said accused does not appear to be the most guilty;

(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge shall automatically form part of the trial. If the
court denies the motion for discharge of the accused as state witness, his sworn statement
shall be inadmissible in evidence.

39 See Primer on the Witness Protection Security and Benefit Act, (R.A. No. 6981)
Department of Justice, p. 1.

40 Op cit.

41 In contrast, our Rules provide pre-trial discovery proceedings in civil actions. See Rule 24
on Depositions and Discovery; Rule 25 on Interrogatories to Parties; Rule 26 on Admission by
Adverse Party; Rule 27 on Production or Inspection of Documents or Things; Rule 28 on
Physical and Mental Examination of Persons and Rule 29 on Refusal to Make Discovery.
42 Sec. 10. Bill of particulars. Accused may, at or before arraignment move for a bill of
particulars to enable him properly to plead and to prepare for trial. The motion shall specify
the alleged defects and the details desired. (6a, R-116).

Sec. 11. Production or inspection of material evidence in possession of prosecution. On

motion of the accused showing good cause and with notice to all parties, the court, in order to
prevent surprise, suppression, or alteration, may order the prosecution to produce and permit
the inspection and copying or photographing, of any written statements given by the
complainant and other witnesses in any investigation of the offense conducted by the
prosecution or any other investigating officers, as well as of any designated documents,
papers, books, accounts, letters, photographs, objects or tangible things, not otherwise
privileged, which constitute or contain evidence material to any matter involved in the case,
and which are in the possession or under the control of the prosecution, the police, or any
other law investigating agencies. (8a, R-118).

43 Note that Rule 116 is entitled Arraignment and Plea..

44 Cruz, Jr. v. People, 233 SCRA 439.

45 206 SCRA 138 [1992].

46 373 US 83, 83 S. Ct. 1194, 10 L. Ed. 2d, 216 [1983].

47 294 US 103, 55 S. Ct. 340, 79 L. Ed. 791 [1935].

48 See US v. Augurs, 427 US 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 [1976]; US v. Bagley, 473
US 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 [1985]; Pennsylvania v. Ritchie, 480 US 39, 107 S.
Ct. 989, 94 L. Ed. ed 40 [1987].

49 Op cit.

50 Filed in Br. 63, RTC, Makati entitled Hubert Webb vs. Mercader, et al.

51 See Petition, page 7, par. 3.16.

52 We note that petitioner Webb does not complain that the xerox copy submitted by the NBI
is different from the original produced by Atty. Mercader.

53 445 US 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 [1980].

54 L-30894, March 25, 1970, 32 SCRA 106.

55 Sheppard v. Maxwell, 394 US 333, 86 S. Ct. 1507 16 L. Ed. 600 [1966].

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 99358 January 30, 1995

DJUMANTAN, petitioner,
vs.
HON. ANDREA D. DOMINGO, COMMISSIONER OF THE BOARD OF IMMIGRATION, HON.
REGINO R. SANTIAGO and HON. JORGE V. SARMIENTO, COMMISSIONERS BUREAU
OF IMMIGRATION AND DEPORTATION, respondents.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court with preliminary
injunction, to reverse and set aside the Decision dated September 27, 1990 of the
Commission on Immigration and Deportation (CID), ordering the deportation of petitioner and
its Resolution dated January 29, 1991, denying the motion for reconsideration.

Bernard Banez, the husband of Marina Cabael, went to Indonesia as a contract worker.

On April 3, 1974, he embraced and was converted to Islam. On May 17, 1974, he married
petitioner in accordance with Islamic rites. He returned to the Philippines in January 1979.

On January 13, 1979, petitioner and her two children with Banez, (two-year old Marina and
nine-month old Nikulas) arrived in Manila as the "guests" of Banez. The latter made it appear
that he was just a friend of the family of petitioner and was merely repaying the hospitability
extended to him during his stay in Indonesia.

When petitioner and her two children arrived at the Ninoy Aquino International Airport on
January 13, 1979, Banez, together with Marina Cabael, met them.

Banez executed an "Affidavit of Guaranty and Support," for his "guests," stating inter alia,
that:

That I am the guarantor for the entry into the Philippines of Mrs. Djumantan, 42 years old, and
her two minor children, MARINA, 2 years old, and NIKULAS, 9 months old, all Indonesian
citizens, who are coming as temporary visitors.

That I am willing to guaranty them out of gratitude to their family for the hospitality they have
accorded me during the few years that I have stayed in Indonesia in connection with my
employment thereat.
That I guaranty they are law abiding citizens and I guaranty their behavior while they are in
the Philippines; I also guaranty their support and that they will not become a public charge.

That I guaranty their voluntary departure upon the termination of the authorized stay granted
them by the Government (Rollo, p. 41).

As "guests," petitioner and her two children lived in the house of Banez.

Petitioner and her children were admitted to the Philippines as temporary visitors under
Section 9(a) of the Immigration Act of 1940.

In 1981, Marina Cabael discovered the true relationship of her husband and petitioner. She
filed a complaint for "concubinage" with the Municipal Trial Court of Urdaneta, Pangasinan
against the two. This case was, however, dismissed for lack of merit.

On March 25, 1982, the immigration status of petitioner was changed from temporary visitor
to that of permanent resident under Section 13(a) of the same law. On April 14, 1982,
petitioner was issued an alien certificate of registration.

Not accepting the set-back, Banez' eldest son, Leonardo, filed a letter complaint with the
Ombudsman, who subsequently referred the letter to the CID. On the basis of the said letter,
petitioner was detained at the CID detention cell. She later released pending the deportation
proceedings (DEP Case No. 90-400) after posting a cash bond (Rollo, pp. 15-16). Thereafter,
she manifested to the CID that she be allowed to depart voluntarily from the Philippines and
asked for time to purchase her airline ticket (Rollo, p. 10). However, she a change of heart
and moved for the dismissal of the deportation case on the ground that she was validly
married to a Filipino citizen (Rollo, pp. 11-12).

In the Decision dated September 27, 1990, the CID, through public respondents, disposed as
follows:

WHEREFORE, IN VIEW OF THE FOREGOING, the Board of Commissioners finds the

second marriage of Bernardo Banes to respondent Djumantan irregular and not in
accordance with the laws of the Philippines. We revoke the Section 13(a) visa previously
granted to her (Rollo, p. 23).

Public respondents denied petitioner's motion for reconsideration in their Resolution dated
January 29, 1991 (Rollo, pp. 31-33).

Hence, this petition.

We issued a temporary restraining order, directing public respondents to cease and desist
from executing or implementing the Decision dated September 27, 1990 and the Resolution
dated January 29, 1991 (Rollo, pp. 34-36).

On September 20, 1994, Leonardo C. Banez manifested that his father died on August 14,
1994 and that he and his mother were withdrawing their objection to the granting of a
permanent resident visa to petitioner (Rollo, pp. 173-175).

II
Petitioner claims that her marriage to Banez was valid under Article 27 of P.D. No. 1085, the
Muslim Code, which recognizes the practice of polyandry by Muslim males. From that
premise, she argues that under Articles 109 of the Civil Code of the Philippines, Article 68 of
the Family Code and Article 34 of the Muslim Code, the husband and wife are obliged to live
together and under Article 110 of the Civil Code of the Philippines, the husband is given the
right to fix the conjugal residence. She claims that public respondents have no right to order
the couple to live separately (Rollo, pp. 5-7).

When asked to comment on the petition, the Solicitor General took the position that the CID
could not order petitioner's deportation because its power to do so had prescribed under
Section 37 (b) of the Immigration Act of 1940 (Rollo, pp. 57-74).

III

We need not resolve the validity of petitioner's marriage to Banez, if under the law the CID
can validly deport petitioner as an "undesirable alien" regardless of her marriage to a Filipino
citizen. Therefore, to be first resolved is the question on petitioner's immigration status,
particularly the legality of her admission into the country and the change of her status from
temporary visitor to permanent resident. Upon a finding that she was not lawfully admitted into
the country and she did not lawfully acquire permanent residency, the next question is
whether the power to deport her has prescribed.

There was a blatant abuse of our immigration laws in effecting petitioner's entry into the
country and the change of her immigration status from temporary visitor to permanent
resident. All such privileges were obtained through misinterpretation.

Never was the marriage of petitioner to Banez disclosed to the immigration authorities in her
applications for temporary visitor's visa and for permanent residency.

The civil status of an alien applicant for admission as a temporary visitor is a matter that could
influence the exercise of discretion on the part of the immigration authorities. The immigration
authorities would be less inclined to allow the entry of a woman who claims to have entered
into a marriage with a Filipino citizen, who is married to another woman (Cf. Shiu Shin Man v.
Galang, 3 SCRA 871 [1961]).

Generally, the right of the President to expel or deport aliens whose presence is deemed
inimical to the public interest is as absolute and unqualified as the right to prohibit and prevent
their entry into the country (Annotations, 8 ALR 1286). this right is based on the fact that since
the aliens are not part of the nation, their admission into the territory is a matter of pure
permission and simple tolerance which creates no obligation on the part of the government to
permit them to stay (3 Am. Jur. 2d. 72).

The interest, which an alien has in being admitted into or allowed to continue to reside in the
country, is protected only so far as Congress may choose to protect it (United States ex rel.
Kaloudis v. Shauhnessy 180 F. 2d. 489).

There is no law guaranteeing aliens married to Filipino citizens the right to be admitted, much
less to be given permanent residency, in the Philippines.

The fact of marriage by an alien to a citizen does not withdraw her from the operation of the
immigration laws governing the admission and exclusion of aliens (United States ex rel.
Knauff v. Shauhnessy, 338 US 537 94 L. Ed. 317, 70 S. Ct. 309 [1950]; Low Wah Suey v.
Backus, 225 US 460 56 L. Ed. 1165, 32 S. Ct. 734 [1912]; Annotations, 71 ALR 1213).
Marriage of an alien woman to a Filipino husband does not ipso facto make her a Filipino
citizen and does not excuse her from her failure to depart from the country upon the expiration
of her extended stay here as an alien (Joaquin v. Galang, 33 SCRA 362 [1970]).

Under Section 9 of the Immigration Act of 1940, it is not mandatory for the CID to admit any
alien who applies for a visitor's visa. Once admitted into the country, the alien has no right to
an indefinite stay. Under Section 13 of the law, an alien allowed to stay temporarily may apply
for a change of status and "may be admitted" as a permanent resident. Among those
considered qualified to apply for permanent residency if the wife or husband of a Philippine
citizen (Immigration Act of 1940, Sec. 13[a]). The entry of aliens into the country and their
admission as immigrants is not a matter of right, even if they are legally married to Filipino
citizens.

IV

We now address the issue raised by the Solicitor General that the right of public respondents
to deport petitioner has prescribed, citing Section 37(b) of the Immigration Act of 1940.

Said Section 37(b) provides:

Deportation may be effected under clauses 2, 7, 8, 11 and 12 of paragraph (a) of this section
at any time after entry, but shall not be effected under any clause unless the arrest in the
deportation proceedings is made within five years after the cause for deportation arises.
Deportation under clauses 3 and 4 shall not be effected if the court, or judge thereof, when
sentencing the alien, shall recommend to the Commissioner of Immigration that the alien be
not deported (As amended by Rep. Act No. 503).

Section 37(a) of the said law mentioned in Section 37(b) thereof provides:

The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or
of any other officer designated by him for the purpose and deported upon the warrant of the
Commissioner of Immigration after a determination by the Board of Commissioners of the
existence of the ground for deportation as charged against the alien:

1) Any alien who enters the Philippines after the effective date of this Act by means of false
and misleading statements or without inspection and admission by the immigration authorities
at a designating port of entry or at any place other than at a designated port of entry.

2) Any alien who enters the Philippines after the effective date of this Act, who was not
lawfully admissible at the time of entry;

3) Any alien who, after the effective date of this Act, is convicted in the Philippines and
sentenced for a term of one year or more for a crime involving moral turpitude committed
within five years after his entry, is so convicted and sentenced more than once;

4) Any alien who is convicted and sentenced for a violation of the law governing prohibited
drugs;
5) Any alien who practices prostitution or is an inmate of a house of prostitution or is
connected with the management of a house of prostitution, or is a procurer;

6) Any alien who becomes a public charge within five years after entry from causes not
affirmatively shown to have arisen subsequent to entry;

7) Any alien who remains in the Philippines in violation of any limitation or condition under
which he was admitted a non-immigrant;

8) Any alien who believes in, advises, advocates or teaches the overthrow by force and
violence of the Government of the Philippines, or of constituted law and authority, or who
disbelieves in or is opposed to organized government, or who advises, advocates, or teaches
the assault or assassination of public officials because of their office, or who advises,
advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated
with any organization entertaining, advocating or teaching such doctrines, or who on any
manner whatsoever lends assistance, financial or otherwise, to the dissemination of such
doctrines;

9) Any alien who commits any of the acts described in Sections forty-five and forty-six of this
Act, independent of criminal action which may be brought against him: Provided, That in the
case of an alien who, for any reason, is convicted and sentenced to suffer both imprisonment
and deportation, said alien shall first serve the entire period of his imprisonment before he is
actually deported:Provided, however, That the imprisonment may be waived by the
Commissioner of Immigration with the consent of the Department Head, and upon payment
by the alien concerned of such amount as the Commissioner may fix and approved by the
Department Head, and upon payment by the alien concerned of such amount as the
Commissioner may fix and approved by the Department Head (as amended by R.A. No. 144);

10) Any alien who, at any time within five years after entry, shall have been convicted of
violating the provisions of the Philippine Commonwealth Act Numbered Six hundred and
fifty-three, otherwise known as the Philippine Alien Registration Act of 1941 (now Republic
Act No. 562), or who, at any time after entry, shall have been convicted more than once of
violating the provisions of the same Act;

11) Any alien who engages in profiteering, hoarding, or black-marketing, independent of any
criminal action which may be brought against him;

12) Any alien who is convicted of any offense penalized under Commonwealth Act Numbered
Four hundred and seventy-three, otherwise known as the Revised Naturalization Laws of the
Philippines, or any law relating to acquisition of Philippine citizenship;

13) Any alien who defrauds his creditor by absconding or alienating properties, to prevent
them from being attached or executed.

Under clause 1 of Section 37(a), an "alien who enters the Philippines after the effective date
of this Act by means of false and misleading statements or without inspection and admission
by the immigration authorities at a designated port of entry or at any place other than at a
designated port of entry" is subject to deportation.
The deportation of an alien under said clause of Section 37(a) has a prescriptive period and
"shall not be effected ... unless the arrest in the deportation proceedings is made within five
years after the cause for deportation arises" (Immigration Act of 1940, Sec. 37[b]).

Congress may impose a limitation of time for the deportation of alien from the country
(Costanzo v. Tillinghast, 287 US 341 77 L. Ed. 350, 53 S. Ct. 152 [1932]; Guiney v. Bonham
[CA 9] 261 F. 582, 8 ALR 1282).

In Board of Commissioners (CID) v. Dela Rosa, 197 SCRA 853 (1991), we held that under
Section 37(b) of the Immigration Act of 1940, the deportation of an alien may be barred after
the lapse of five years after the cause of deportation arises. Justice Feliciano, in his dissenting
opinion, qualified the broad statement of the law as follows:

Examination of the above quoted Section 37 (b) shows that the five (5) year limitation is
applicable only where deportation is sought to be effected under clauses of Section 37 (a)
other than clauses 2, 7, 8, 11 and 12; that where deportation or exclusion is sought to be
effected under clauses of Section 37(a), no period of limitation is applicable; and that to the
contrary, deportation or exclusion may be effected "at any time after entry."

Justice Davide, in his dissenting opinion, clarified:

Note that the five-year period applies only to clauses other than 2, 7, 8, 11 and 12 of
paragraph (a) of the Section. In respect to clauses 2, 7, 8, 11, and 12, the limitation does not
apply.

In Lam Shee v. Bengzon, 93 Phil. 1065 (1953), the alien admitted that she had gained
entrance into the Philippines fraudulently by making use of the name of a Chinese
resident-merchant other than that of her lawful husband. The Court, however, held that she
could no longer be deported "for the simple reason that more than 5 years had elapsed from
the date of her admission."

The right of public respondents to deport petitioner has prescribed.

Petitioner was admitted and allowed entry into the Philippines on January 13, 1979 on the
basis of false and misleading statements in her application and in the other supporting
documents submitted to the immigration authorities. Leonardo C. Banez first complained with
the CID on November 19, 1980 about the manner petitioner was admitted into the country and
asked for her deportation (Rollo, pp. 77-78). After the EDSA Revolution, he sent a follow-up
letter to the CID requesting action on his 1980 letter-complaint (Rollo, p. 78).

Tolling the prescriptive period from November 19, 1980, when Leonardo C. Banez informed
the CID of the illegal entry of petitioner into the country, more than five years had elapsed
before the issuance of the order of her deportation on September 27, 1990.

In their Comment, public respondents urged that what is barred under Section 37(b) is the
deportation of an alien and claimed that what they ordered was not the deportation of
petitioner but merely the revocation of Section 13(a) which refers to the visa previously
granted her (Rollo, p. 102).

The "arrest" contemplated by Section 37(b) refers to the arrest for the purpose of carrying out
an order for deportation and not the arrest prior to proceedings to determine the right of the
alien to stay in the country. When public respondents revoked the permanent residence visa
issued to petitioner, they, in effect, ordered her arrest and deportation as an overstaying alien.

WHEREFORE, the petition is GRANTED and the temporary restraining order issued on June
4, 1991 is MADE PERMANENT.

The Decision of the Board of Commissioners dated September 27, 1990 revoking the
issuance of the permanent resident visa to petitioner and the Resolution dated January 29,
1991 are REVERSED.

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan and Mendoza, JJ., concur.

Feliciano and Francisco, JJ., took no part.

 Supreme Court
Manila
FIRST DIVISION

EMMANUEL T. PONTEJOS, G.R. Nos. 158613-14

Petitioner,
Present:
Panganiban, CJ,
Chairman,
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ

OFFICE OF THE OMBUDSMAN Promulgated:

February 22,2006
and RESTITUTO AQUINO,
Respondents.

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

DECISION

PANGANIBAN, CJ:

T he Constitution and the Ombudsman Act of 1989 have

endowed the Office of the Ombudsman (OMB) with a wide

latitude of investigatory and prosecutorial powers -- virtually

free from legislative, executive or judicial intervention -- in order to

insulate it from outside pressure and improper influence. Unless tainted

with grave abuse of discretion, the judgments and orders of the OMB

shall not be reversed, modified or otherwise interfered with by this

Court.
The Case

Before us is a Petition for Certiorari[1] under Rule 65 of the

Rules of Court, assailing the February 19, 1999 Joint
Resolution,[2] May 21, 2002 Review and
Recommendation[3] and March 14, 2003 Order[4] of the Evaluation
and Preliminary Investigation Bureau of the OMB. The challenged
Resolution disposed as follows:
WHEREFORE, premises considered, the following are
respectfully recommended, thus:

1. That an Information for Estafa (one count) be filed

against respondent EMMANUEL T. PONTEJOS
before the Regional Trial Court of Quezon City;

2. That an Information for Direct Bribery be filed

against respondent Atty. EMMANUEL T. PONTEJOS
before the Regional Trial Court of Quezon City;

3. That an Information for Unauthorized Practice of

Profession in violation of R.A. 6713 be filed against
Atty. EMMANUEL T. PONTEJOS before the
Metropolitan Trial Court of Quezon City; and

4. That the complaint

against Director WILFREDO I. IMPERIAL and
RODERICK NGO be dismissed for insufficiency of
evidence; and
 5. That respondent CARMENCITA ATOS Y. RUIZ be
extended immunity from criminal prosecution in
accordance with Section 17 of R.A. 6770 and be
utilized as a state witness.[5]

The Review and Recommendation disapproved Assistant City

Prosecutor De Guzmans recommendation to amend the Information
for estafa by includingAtos as a co-accused; while the Order denied
reconsideration.

The Facts

Sometime in 1998, Restituto P. Aquino filed an

Affidavit/Complaint before the Ombudsman against Emmanuel
T. Pontejos (arbiter), Wilfredo I. Imperial (regional director)
and Carmencita R. Atos (legal staff), all of them officials of the
Housing and Land Use Regulatory Board (HLURB), and Roderick
Ngo, a private individual.[6]

Aquino accused Pontejos and Atos of conspiring to exact

money in exchange for a favorable decision of a case against
Roderick Ngo then pending in the HLURB. He further averred
that Pontejos acted as his counsel during the time when the latter was
the hearing officer of the case.[7] Moreover, Atos allegedly
received P10,000 in check, which was part of the consideration for a
favorable decision. Imperial was implicated as an alleged
accomplice.[8]

During preliminary investigation, the following documents were

adduced:
a. Affidavit-complaint of Restituto P. Aquino, dated 14
August 1998 whereby the complainant narrated at length the
charges against respondents;

b. Affidavit of Ruth Adel in corroboration of

Mr. Aquinos affidavit;

c. Another affidavit of Mr. Restituto P. Aquino wherein

he revealed the months and dates where he had meetings with
Atty. Pontejos and Carmen Atos at Alps Restaurant, Racks
Restaurant, Little Quiapo (Q.C.) and Chowking Restaurant;

d. Another affidavit of Ruth Adel, wherein the affiant

revealed that Ms. Carmen Atos received P10,000.00 in check
and had it encashed;

e. Affidavit of Rowena Alcovindas corroborating Adels

affidavit;

f. A copy of the encashed check showing

Ms. Atos signature at the back of the check;
g. Copies of several drafts of decision and petitions
either prepared in handwriting of Atty. Pontejos or in
typewritten form with corrections from Atty.Pontejos in his
handwriting;

h. NBI Examination Report revealing that the samples

and questioned documents were authored by one person
(Atty. Pontejos) x x x.

i. Another affidavit dated 15 February 1999, of

[C]omplainant Aquino, wherein he mentioned the places and
dates of supposed meetings with Pontejos andAtos as well as
 the amounts received by them in exchange of legal services
and/or favor promised.[9]

The respondents filed separate Counter-Affidavits to refute the

charges.[10] They claimed that the meetings mentioned by Aquino did
not take place.Neither did they receive any money from him.[11]

Pontejos added that there were three cases

involving Aquino. The first one, REM-8652 was filed in 1995
against Aquino by buyers of lots in a subdivision which he allegedly
failed to develop. The second one, REM-9526 was filed
by Aquino against Hammercon Inc. (allegedly owned by Roderick
Ngo) for revocation of registration and license. The third case,
REM-9817 was filed by Aquino against Hammercon for specific
performance or rescission of contract.[12]
Pontejos decided the first and third cases against Aquino. The second
case, handled by Imperial, was also decided against Aquino. It was
allegedly implausible to side with Aquino, who lost all of the cases.[13]

Imperial denied all links to the extortion allegedly perpetrated

by Pontejos and Atos. Moreover, he could not have shared with the
alleged pay-off money given in January 1998, because he decided the
case as far back as September 1997.[14]
 Atos justified receipt of the P10,000 from Aquino, claiming that
it was payment for hams and cold cuts ordered in December 1996
and January 1997 by Ruth Adel, one of the affiants.[15] In support of
this defense, she submitted Joint-Affidavits of her officemates and
neighbors confirming her business activities.[16]

Subsequently, Atos issued two Affidavits where she retracted

her original defense.[17] She encashed the check allegedly to
accommodate Pontejos, who was her boss. She also recounted
attending at least four meetings with Pontejos, Aquino and Adel
during which Pontejos offered legal services to Aquino and
discussed Aquinos pending cases.[18]

Ruling of the Overall Deputy Ombudsman

The Overall Deputy Ombudsman found probable cause

against Pontejos for the crimes of estafa, direct bribery and illegal
practice of profession in violation of RA 6713.

There was estafa because Pontejos allegedly made false

pretenses to Aquino in order to receive P25,000.[19] He supposedly
assured the cancellation ofHammercons license to sell and
registration certificate, notwithstanding the contrary decision issued
by Imperial.[20]
 Pontejos was guilty of direct bribery for demanding and
receiving P100,000 from Aquino in exchange for a favorable
decision.[21] Further, Pontejosshould be charged with unauthorized
practice of law for providing legal services to Aquino and receiving
litigation expenses.[22] He purportedly prepared the pleadings
that Aquino submitted; these pleadings where confirmed by the NBI
to have been authored by him.[23]

The Overall Deputy Ombudsman ruled that Atos should be

extended immunity from criminal prosecution and discharged as state
witness.[24] According to him, Atos was merely a subordinate who
could have acted only upon the prodding of Pontejos. Also, her
testimony was necessary to build a case againstPontejos.[25]

On June 21, 1999, then

Ombudsman Aniano A. Desierto issued a Resolution extending
immunity to Atos on the condition that she would appear and testify
against Pontejos in accordance with the Affidavits she submitted
during the preliminary investigation.[26] The Resolution noted
that Atos testimony was extremely necessary to prove the offenses
charged against Pontejos and that the available evidence showed that,
being a mere clerk, she did not appear to be the most guilty.[27]
 The criminal cases for estafa and direct bribery
against Pontejos were filed before the Regional Trial Court
of Quezon City.[28] On May 13, 1999, Pontejosfiled a Motion for
Reinvestigation[29] to be conducted by the City Prosecutor without
remanding the case to the Ombudsman. The prosecution had no
objection. Thus, hearing of the case was held in abeyance pending the
outcome of the reinvestigation.[30]

Assistant City Prosecutor Ma. Teresa E. De Guzman conducted the

reinvestigation and thereafter recommended to amend the
Information for estafa to includeAtos as co-accused. According to
her, the power to grant immunity pertains solely to the courts, not to
the prosecution which can only recommend.[31] The Overall Deputy
Ombudsman disapproved De Guzmans report in the May 21,
2002 Review and Recommendation.

The March 14, 2003 Order denied

reconsideration. Thereafter, Pontejos filed this Petition.[32]

The Issues

Petitioner raises the following issues:

1. Whether or not the Ombudsman erred in not declaring that

petitioner was denied due process when to this date he
was never officially furnished a copy of the Affidavit
dated 18 February 1999 of Ms. Atos amounting to lack of
or excess of jurisdiction;
 2. Whether or not proceedings before the Ombudsman was
tainted with ill motives amounting to lack of or excess of
jurisdiction;

3. Whether or not the Ombudsman committed grave abuse of

discretion amounting to lack of or excess of jurisdiction
when it granted an immunity to Ms. Atos to become a
state witness on almost the same date the Affidavit was
executed and submitted;

4. Whether or not the Ombudsman erred in singling out

petitioner for criminal prosecution amounting to lack of or
excess of jurisdiction;

5. Whether or not the Ombudsman erred in giving weight to the

Affidavit dated 18 February 1999 of Ms. Atos despite an
earlier affidavit which totally contradicts her averments
therein.[33]

The Courts Ruling

The Petition is unmeritorious.

First Issue:
Finding of Probable Cause

Probable cause is defined as such facts and circumstances that

would engender a well-founded belief that a crime has been
committed and that the respondent is probably guilty thereof and
should be held for trial.[34] Its determination during a preliminary
investigation is a function left to the government prosecutor, which
in this case is the OMB.[35] As a rule, the courts do not interfere with
the OMBs exercise of discretion in determining probable cause unless
there are compelling reasons.[36] This policy is based on constitutional,
statutory and practical considerations. The Constitution and RA 6770
(the Ombudsman Act of 1989) grants the OMB with a wide latitude
of investigatory and prosecutorial powers that is virtually free from
executive, legislative or judicial intervention, in order to insulate it
from outside pressure and improper influence.[37]

However, there are certain instances when this Court may

intervene in the prosecution of cases. Brocka v. Enrile[38] cited some of
these exceptions, as follows: (1) when necessary to afford adequate
protection to the constitutional rights of the accused; (2) when
necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions; (3) when there is a prejudicial
question which is sub judice; (4) when the acts of the officer are
without or in excess of authority; (5) where the prosecution is under
an invalid law, ordinance or regulation; (6) when double jeopardy is
clearly apparent; (7) where the court has no jurisdiction over the
offense; (8) where it is a case of persecution rather than prosecution;
(9) where the charges are manifestly false and motivated by the lust
for vengeance; and (10) when there is clearly no prima facie case
against the accused and a motion to quash on that ground has been
denied.[39]

The remedy to challenge the OMBs orders or resolutions in criminal

cases is through a petition for certiorari under Rule 65 to this Court.[40]

Grave Abuse of Discretion

A petition for certiorari is the remedy when a government officer has

acted with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no other plain, speedy, and adequate remedy
in the ordinary course of law.[41]

Grave abuse of discretion implies a capricious and whimsical

exercise of judgment tantamount to lack of jurisdiction.[42] The
exercise of power must have been done in an arbitrary or despotic
manner by reason of passion or personal hostility. It must be so
patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.[43]

Petitioner theorizes that the OMB resolved the Complaint against

him for reasons other than the merits of the case. He specifically
charges HLURB Commissioner Teresita Desierto, the spouse of
Ombudsman Desierto, as the unseen hand behind the filing of the
criminal cases.[44] Commissioner Desiertoallegedly harbored
resentment against him for signing a Manifesto[45] issued by some
lawyers in the HLURB.[46] He also recalls Commissioner
Desierto threatening him if he did not resign from the HLURB. Thus,
he concludes that the proceedings before the OMB were tainted with
ill motives.[47]

We cannot accept petitioners arguments. The Court observes that his

arguments are merely conjectures bereft of any proof. He presented
absolutely no evidence of any irregularity in the proceedings before
the OMB. There was no showing that
Commissioner Desierto interfered in any manner in the proceedings
before the OMB. Other than petitioners bare assertions, there was
also no proof that Commissioner Desierto bore a grudge
against Pontejos.

Petitioner failed to substantiate his allegation of grave abuse of

discretion. On the other hand, there was sufficient evidence to
support the finding of probable cause. Evidence presented during the
preliminary investigation engender a well-founded belief that crimes
have been committed and that Pontejos is probably guilty thereof for
which he should be held for trial. The Court is therefore precluded
from interfering in the OMBs discretion to file the criminal cases
against petitioner. To be sure, great respect must be accorded to the
OMBs exercise of its constitutionally mandated functions. Unless
clearly shown to have been issued with grave abuse of discretion,
these judgments are not interfered with.

Second Issue:
Immunity from Prosecution

The decision on whether to prosecute and whom to indict is

executive in character.[48] It is the prosecution that could essentially
determine the strength of pursuing a case against an accused. The
prosecutorial powers include the discretion of granting immunity to
an accused in exchange for testimony against
another. Thus, Mapa v. Sandiganbayan[49] explained:
The decision to grant immunity from prosecution forms a
constituent part of the prosecution process. It is essentially a
tactical decision to forego prosecution of a person for
government to achieve a higher objective. It is a deliberate
renunciation of the right of the State to prosecute all who
appear to be guilty of having committed a crime. Its
justification lies in the particular need of the State to obtain the
conviction of the more guilty criminals who, otherwise, will
probably elude the long arm of the law. Whether or not the
delicate power should be exercised, who should be extended
the privilege, the timing of its grant, are questions addressed
solely to the sound judgment of the prosecution. The power to
prosecute includes the right to determine who shall be
prosecuted and the corollary right to decide whom not to
prosecute.[50]
 It is constitutionally permissible for Congress to vest the
prosecutor with the power to determine who can qualify as a witness
and be granted immunity from prosecution.[51] Noteworthy, there are
many laws that allow government investigators and prosecutors to
grant immunity.[52] In relation to this, the Court has previously upheld
the discretion of the Department of Justice (DOJ),[53] Commission on
Elections (Comelec),[54] and the Presidential Commission on Good
Government (PCGG)[55] to grant immunity from prosecution on the
basis of the respective laws that vested them with such power.

The OMB was also vested with the power to grant immunity
from prosecution, thus:
SEC. 17. x x x.

Under such terms and conditions as it may

determine, taking into account the pertinent provisions of the
Rules of Court, the Ombudsman may grant immunity from
criminal prosecution to any person whose testimony or whose
possession and production of documents or other evidence
may be necessary to determine the truth in any hearing, inquiry
or proceeding being conducted by the Ombudsman or under
its authority, in the performance or in the furtherance of its
constitutional functions and statutory objectives. x x x.[56]

According to Pontejos, the OMBs authority to grant immunity

is subject to the pertinent provisions of the Rules of Court. He claims
that the procedural rules allow the discharge of an accused as state
witness only upon conformity of the trial court.[57] An information
against the accused must first be filed in court prior to the
discharge. Moreover, the prosecution could only recommend and
propose, but not grant immunity.[58]

The pertinent provision of the Rules of Court reads:

Sec. 17. Discharge of accused to be state
witness. When two or more persons are jointly charged with
the commission of any offense, upon motion of the prosecution
before resting its case, the court may direct one or more of the
accused to be discharged with their consent so that they may
be witnesses for the state when after requiring the prosecution
to present evidence and the sworn statement of each proposed
state witness at a hearing in support of the discharge, the court
is satisfied that:

(a) There is absolute necessity for the

testimony of the accused whose discharge is
requested;

(b) There is no other direct evidence available

for the proper prosecution of the offense committed,
except the testimony of said accused;

(c) The testimony of said accused can be

substantially corroborated in its material points;

(d) Said accused does not appear to be the

most guilty; and

(e) Said accused has not at any time been

convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge

shall automatically form part of the trial. If the court
denies the motion for discharge of the accused as
state witness, his sworn statement shall be
inadmissible in evidence.[59]
 The Court has already held that this provision is applicable only
to cases already filed in court.[60] The trial court is given the power to
discharge an accused as a state witness only because it has already
acquired jurisdiction over the crime and the accused.[61]

As stated earlier, the power to choose who to discharge as state

witness is an executive function. Essentially, it is not a judicial
prerogative.[62] The fact that an individual had not been previously
charged or included in an information does not prevent the
prosecution from utilizing said person as a witness.[63]

Section 17 of the Ombudsman Act requires conformity with

the Rules of Court. Accordingly, this should be read as requiring the
following circumstances prior to the discharge: (1) absolute necessity
for the testimony of the accused sought to be discharged; (2) no
direct evidence available for the proper prosecution of the offense
committed except the testimony of the said accused; (3) the
testimony of the said accused can be substantially corroborated in its
material points; (4) said accused does not appear to be most guilty;
and (5) said accused has not any time been convicted of any offense
involving moral turpitude.
 Indeed, there must be a standard to follow in the exercise of the
prosecutors discretion. The decision to grant immunity cannot be
made capriciously.Should there be unjust favoritism, the Court may
exercise its certiorari power.

In the present case, certiorari is not proper. Pontejos allegations

do not show, much less allege, grave abuse of discretion in the
granting of immunity toAtos.[64] The OMB considered Atos position,
record and involvement in the case prior to the discharge.[65]

Pontejos also claims that he was not furnished a copy

of Atos Affidavit that connected him to the crimes.[66] Since he was
not afforded the opportunity to challenge the assertions in said
Affidavit, his right to due process had allegedly been violated.

The alleged denial of due process is controverted by the facts. It

appears from the records that Pontejos eventually received a copy of
the aforementioned Affidavit.[67] More importantly, he had challenged
the Affidavit in his Motion for Reinvestigation[68] and request for
reconsideration of the Review and Recommendation of the Overall
Deputy Ombudsman.[69] Pontejos contention must necessarily fail
because -- as shown -- he had the opportunity to be heard and in fact,
availed of it.
As a final note, Pontejos has made it appear that the criminal cases
filed against him were based on ill motives. His arguments challenge
the evidence gathered. It is readily apparent that these arguments
should be raised as defenses during the trial, not in the present
Petition.

WHEREFORE, the Petition is DENIED. Costs against

petitioner.

SO ORDERED.

ARTEMIO V. PANGANIBAN
Chief Justice
Chairman, First Division

W E C O N C U R:

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that
the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the
Courts Division.

ARTEMIO V. PANGANIBAN
Chief Justice

[1] Rollo, pp. 3-29.

[2] Id., pp. 33-49. Prepared by Graft Investigation Officer II Rogelio A. Ringpis,
recommended by Director Angel C. Mayoralgo Jr., reviewed by Assistant
Ombudsman Abelardo L. Aportadera Jr. and approved by Overall Deputy
Ombudsman Francisco A. Villa.
[3] Id., pp. 58-64. Prepared by Graft Investigation Officer 1 Francisca

A. Maullon-Serfino, reviewed by Director Pelagio S. Apostol, recommended

by Deputy Special Prosecutor Robert E. Kallos and approved by Overall
Deputy Ombudsman Margarito P. Gervacio Jr.
[4] Id., pp. 69-73. Prepared by Graft Investigation Officer 1 Myrna A. Corral, reviewed

by Director Jose T. de Jesus Jr., recommended by Assistant

Ombudsman Pelagio S. Apostol and approved by Overall Deputy
Ombudsman Margarito P. Gervacio Jr.
[5] Id., pp. 48-49.
[6] Assailed Joint Resolution dated February 19, 1999, pp. 1-2; rollo, pp. 33-34;

Assailed Review and Recommendation, pp. 1-2; rollo, pp. 58-59. See
also Affidavit/Complaint; rollo, pp. 75-79.
[7] Ibid.
[8] Ibid.
[9] Assailed Joint Resolution, pp. 3-4; rollo, pp. 35-36.
[10] Id., p. 4; id., p. 36.
[11] Id., pp. 4-5; id., pp. 36-37.
[12] Ibid. See also Petitioners Memorandum, p. 3; rollo, p. 174.
[13] Assailed Joint Resolution, p. 4; rollo, p. 36.
[14] Id., p. 5; rollo, p. 37.
[15] Ibid.
[16] Ibid.
[17] Id., pp. 5-7; id., pp. 37-39.
[18] Ibid.
[19] Id., pp. 11-12; id., pp. 43-44.
[20] Ibid.
[21] Id., p. 14; id., p. 47.
[22] Id., pp. 11 & 14; id., pp. 43 & 46.
[23] Ibid.
[24] Id., p. 16; id., p. 49.
[25] Id., p. 14; id., p. 47.
[26] Resolution No. 99-001; rollo, p. 94.
[27] Ibid.
[28] Docketed as Criminal Case Nos. Q-99-83123-24 and raffled to Branch 224.
[29] Rollo, pp. 51-56.
[30] Order dated June 7, 1999; rollo, p. 57.
[31] Assailed Review and Recommendation, p. 4; rollo, p. 61.
[32] The case was deemed submitted for resolution on October 10, 2005, upon this

Courts receipt of respondent Aquinos Memorandum, signed by him. In

our November 23, 2005 Resolution, this Court accepted Aquinos explanation
why his memorandum was belatedly filed.
The Memorandum of the Ombudsman, signed by Assistant Solicitor
General Karl B. Miranda and Solicitor Ma. Ana C. Rivera, was received by this
Court on May 26, 2005. Petitioners Memorandum, signed by him, was
received by this Court on May 5, 2005.
[33] Petitioners Memorandum, p. 10; rollo, p. 181; original in upper case.
[34] 1 of Rule 112 of the Rules of Court, which defines the purpose of a preliminary

investigation. Villanueva v. Ople, GR No. 165125, November 18,

2005; Mendoza-Arce v. Office of the Ombudsman, 380 SCRA 325, April 5, 2002.
[35] Paredes v. Sandiganbayan, 252 SCRA 641, January 31, 1996.
[36] Peralta v. Desierto, GR No. 153152, October 19, 2005.
[37] Perez v. Office of the Ombudsman, 429 SCRA 357, 363, May 27, 2004. See also Alba

v. Nitorreda, 254 SCRA 753, March 13, 1996.

[38] 192 SCRA 183, December 10, 1990.
[39] Id., pp. 188-189 citing Regalado, Remedial Law Compendium, p. 188 (1988 ed.). Also

cited in Villanueva v. Ople, supra at note 34; Mendoza-Arce v. Office of the

Ombudsman, supra at note 34.
[40] Villanueva v. Ople, supra; Kuizon v. Desierto 354 SCRA 158, March 9, 2001. See

also Tirol v. Commission on Audit, 391 Phil. 897, August 3, 2000.

[41] 1 of Rule 65 of the Rules of Court.
[42] Soria v. Desierto, GR Nos. 153524-25, January 31, 2005; Perez v. Office of the

Ombudsman, supra at note 37.

[43] Ibid.
[44] Petitioners Memorandum, pp. 12, 15-19 & 25; rollo, pp. 183, 186-190 & 196.
[45] The Manifesto reads:
On 28 September 1998, after the flag raising ceremony, the
Honorable Commissioner Teresita A. Desierto made unfounded
accusations and sweeping statements branding the lawyers and staff of
the Appeals and Review Group, the Expanded National Capital Region,
the Legal Services Group, and Regional Field Office 4 as corrupt. She
alleged that lawyers, legal assistants and para-legal assistants receive
bribes and ask party litigants to treat them to lunch.
The Honorable Commissioner may not have foreseen the
possible repercus[s]ions of her words. She may not have known that the
accusations made by her tend to bring not only the legal staff into
disrepute but the whole Board.
The statements of the Honorable Commissioner tend to destroy
public confidence in the Board. Hence, they degrade not only the lawyers,
legal assistants and para-legal assistants but all employees of the Board.
The Honorable Commissioner may not have realized it, but once
public confidence in the Board is destroyed, the Board loses its
usefulness.
It is regrettable that such irresponsible act was committed by a
high ranking official of the Board, a person who should be the first to
protect the Board and its dignity.
We have been subjected to snide remarks and slanderous
statements before, but we took them in stride, because they are
unsubstantiated and utterly false. However, when the same unproven
accusations are made by a responsible superior, who is also a lawyer, we
believe that we have to react. We have suffered in silence for too long.
It appears that our continued silence is being interpreted as an
admission of guilt. To correct such misinterpretation, we now speak out
and ask that instead of humiliating all lawyers in public, cases against
erring officials and employees be instituted before the proper forum.
We fervently hope that there will be no repetition of the sorry
incident. We hope that the architects, the engineers, the planners and the
rest of the technical staff will not suffer the same fate. We pray that the
rest of the employees wont have to endure the same indignity. (Rollo, p.
32)
[46] Petitioners Memorandum, p. 1; rollo, p. 172.
[47] Id., pp. 17-19; id., pp. 188-190.
[48] Guingona v. Court of Appeals, 354 Phil. 415, July 10, 1998.
[49] 231 SCRA 783, 785, April 26, 1994.
[50] Id., p. 802, per Puno, J.
[51] See Webb v. De Leon, 317 Phil. 758, 800, August 23, 1995.
[52] Some of the laws can be found in Section 8 of Republic Act 9287 or the Act

Increasing the Penalties for Illegal Numbers Games Amending Certain

Provisions of Presidential Decree No. 1602, and for Other Purposes,
approved April 2, 2004; Section 33 of Republic Act 9165 or the
Comprehensive Dangerous Drugs Act of 2002, approved June 7, 2002;
Section 12 of Republic Act 6981 or the Witness Protection, Security and
Benefit Act, approved April 24, 1991; Section 26 of Republic Act 6646 or the
Electoral Reforms Law of 1987, approved January 5, 1988; Section 5 of
Executive Order No. 14 (which empowered the PCGG to file and prosecute
 cases investigated by it), dated May 7, 1986; and Sections 3 and 4 of
Presidential Decree 1732 or Providing Immunity from Criminal Prosecution
to Government Witnesses and for Other Purposes, approved October 8,
1980.
[53] People v. Peralta, 435 Phil. 743, 765, August 8, 2002; Webb v. De Leon, supra.
[54] Comelec v. Espaol, 417 SCRA 554, December 10, 2003.
[55] See Mapa v. Sandiganbayan, supra at note 49.
[56] Republic Act 6770 or the Ombudsman Act, approved on November 17,

1989. (Emphasis supplied).

[57] Petitioners Memorandum, p. 20; rollo, p. 191.
[58] Ibid.
[59] 17 of Rule 119 of the Rules of Court.
[60] Guingona v. Court of Appeals, supra at note 48. See also People v. Peralta, supra at note

53.
[61] Webb v. De Leon, supra at note 51.
[62] People v. Peralta, supra; Guingona v. Court of Appeals, supra; Webb v. De Leon, supra.
[63] People v. Binsol, 100 Phil. 713, 726, January 22, 1957.
[64] See Petitioners Memorandum, pp. 21-22; rollo, pp. 192-193.
[65] See Assailed Joint Resolution, pp. 14-15; rollo, pp. 47-48; Resolution No. 99-001,

supra at note 26.

[66] Petitioners Memorandum, p. 12; rollo, p. 183.
[67] The affidavit was attached as Annex J of the Petition; rollo, pp. 85-86.
[68] Motion for Reinvestigation dated May 13, 1999, p. 2; rollo, p. 52.
[69] Letter addressed to Overall Deputy Ombudsman Margarito O. Gervacio Jr.; rollo,

pp. 66-68.
 Republic of the Philippines

Supreme Court
Baguio City

EN BANC

ATTY. SYLVIA BANDA, G.R. No. 166620

CONSORICIA O. PENSON,
RADITO V. PADRIGANO, JEAN
R. DE MESA, LEAH P. DELA
CRUZ, ANDY V. MACASAQUIT,
SENEN B. CORDOBA, ALBERT
BRILLANTES, GLORIA BISDA,
JOVITA V. CONCEPCION,
TERESITA G. CARVAJAL,
ROSANNA T. MALIWANAG,
RICHARD ODERON, CECILIA
ESTERNON, BENEDICTO
CABRAL, MA. VICTORIA E.
LAROCO, CESAR ANDRA,
FELICISIMO GALACIO, ELSA R.
CALMA, FILOMENA A.
GALANG, JEAN PAUL
MELEGRITO, CLARO G.
SANTIAGO, JR., EDUARDO
FRIAS, REYNALDO O. ANDAL,
NEPHTALIE IMPERIO, RUEL
BALAGTAS, VICTOR R. ORTIZ,
FRANCISCO P. REYES, JR.,
ELISEO M. BALAGOT, JR., JOSE
C. MONSALVE, JR., ARTURO
ADSUARA, F.C. LADRERO, JR.,
NELSON PADUA, MARCELA C.
SAYAO, ANGELITO MALAKAS,
GLORIA RAMENTO, JULIANA
SUPLEO, MANUEL
MENDRIQUE, E. TAYLAN,
CARMELA BOBIS, DANILO
VARGAS, ROY-LEO C. PABLO,
ALLAN VILLANUEVA, VICENTE
R. VELASCO, JR., IMELDA Present:
ERENO, FLORIZA M. CATIIS,
RANIEL R. BASCO, E. JALIJALI,
MARIO C. CARAAN, DOLORES PUNO, C.J.,
M. AVIADO, MICHAEL P. CARPIO,
LAPLANA, GUILLERMO G. CORONA,
SORIANO, ALICE E. SOJO, CARPIO MORALES,
ARTHUR G. NARNE, LETICIA VELASCO, JR.,
SORIANO, FEDERICO RAMOS, NACHURA,
JR., PETERSON CAAMPUED, LEONARDO-DE CASTRO,
RODELIO L. GOMEZ, ANTONIO BRION,
D. GARCIA, JR., ANTONIO PERALTA,
GALO, A. SANCHEZ, SOL E. BERSAMIN,
TAMAYO, JOSEPHINE A.M. DEL CASTILLO,
COCJIN, DAMIAN QUINTO, JR., ABAD,*
EDLYN MARIANO, M.A. VILLARAMA, JR.,
MALANUM, ALFREDO S. PEREZ, and
ESTRELLA, and JESUS MEL MENDOZA, JJ.
SAYO,
Petitioners,

- versus -

EDUARDO R. ERMITA, in his

capacity as Executive
Secretary,THE DIRECTOR Promulgated:
GENERAL OF THE PHILIPPINE
INFORMATION
AGENCY and THE NATIONAL
TREASURER, April 20, 2010
 Respondents.

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

DECISION

LEONARDO-DE CASTRO, J.:

The present controversy arose from a Petition for Certiorari and prohibition
challenging the constitutionality of Executive Order No. 378 dated October
25, 2004, issued by President Gloria Macapagal Arroyo (President
Arroyo). Petitioners characterize their action as a class suit filed on their
own behalf and on behalf of all their co-employees at the National Printing
Office (NPO).

The NPO was formed on July 25, 1987, during the term of former
President Corazon C. Aquino (President Aquino), by virtue of Executive
Order No. 285[1] which provided, among others, the creation of the NPO
from the merger of the Government Printing Office and the relevant printing
units of the Philippine Information Agency (PIA).Section 6 of Executive
Order No. 285 reads:
 SECTION 6. Creation of the National Printing Office. There is
hereby created a National Printing Office out of the merger of the
Government Printing Office and the relevant printing units of the
Philippine Information Agency. The Office shall have exclusive printing
jurisdiction over the following:

a. Printing, binding and distribution of all standard and

accountable forms of national, provincial, city and municipal
governments, including government corporations;

b. Printing of officials ballots;

c. Printing of public documents such as the Official Gazette,

General Appropriations Act, Philippine Reports, and development
information materials of the Philippine Information Agency.

The Office may also accept other government printing jobs,

including government publications, aside from those enumerated above,
but not in an exclusive basis.

The details of the organization, powers, functions, authorities, and

related management aspects of the Office shall be provided in the
implementing details which shall be prepared and promulgated in
accordance with Section II of this Executive Order.

The Office shall be attached to the Philippine Information Agency.

On October 25, 2004, President Arroyo issued the herein assailed

Executive Order No. 378, amending Section 6 of Executive Order No. 285
by, inter alia, removing the exclusive jurisdiction of the NPO over the
printing services requirements of government agencies and
instrumentalities. The pertinent portions of Executive Order No. 378, in
turn, provide:

SECTION 1. The NPO shall continue to provide printing

services to government agencies and instrumentalities as mandated
by law. However, it shall no longer enjoy exclusive jurisdiction over
the printing services requirements of the government over standard
and accountable forms. It shall have to compete with the private
sector, except in the printing of election paraphernalia which could be
shared with the Bangko Sentral ng Pilipinas, upon the discretion of the
 Commission on Elections consistent with the provisions of the Election
Code of 1987.

SECTION 2. Government agencies/instrumentalities may source

printing services outside NPO provided that:

2.1 The printing services to be provided by the private sector is

superior in quality and at a lower cost than what is offered by the NPO;
and

2.2 The private printing provider is flexible in terms of meeting

the target completion time of the government agency.

SECTION 3. In the exercise of its functions, the amount to be

appropriated for the programs, projects and activities of the NPO in
the General Appropriations Act (GAA) shall be limited to its income
without additional financial support from the government. (Emphases
and underscoring supplied.)

Pursuant to Executive Order No. 378, government agencies and

instrumentalities are allowed to source their printing services from the
private sector through competitive bidding, subject to the condition that the
services offered by the private supplier be of superior quality and lower in
cost compared to what was offered by the NPO. Executive Order No.
378 also limited NPOs appropriation in the General Appropriations Act to
its income.

Perceiving Executive Order No. 378 as a threat to their security of

tenure as employees of the NPO, petitioners now challenge its
constitutionality, contending that: (1) it is beyond the executive powers of
President Arroyo to amend or repeal Executive Order No. 285 issued by
former President Aquino when the latter still exercised legislative powers;
and (2) Executive Order No. 378 violates petitioners security of tenure,
because it paves the way for the gradual abolition of the NPO.

We dismiss the petition.

Before proceeding to resolve the substantive issues, the Court must

first delve into a procedural matter. Since petitioners instituted this case as a
class suit, the Court, thus, must first determine if the petition indeed
qualifies as one. In Board of Optometry v. Colet,[2] we held that [c]ourts
must exercise utmost caution before allowing a class suit, which is the
exception to the requirement of joinder of all indispensable parties. For
while no difficulty may arise if the decision secured is favorable to the
plaintiffs, a quandary would result if the decision were otherwise as those
who were deemed impleaded by their self-appointed representatives would
certainly claim denial of due process.

Section 12, Rule 3 of the Rules of Court defines a class suit, as

follows:

Sec. 12. Class suit. When the subject matter of the controversy is
one of common or general interest to many persons so numerous that it is
impracticable to join all as parties, a number of them which the court
finds to be sufficiently numerous and representative as to fully protect the
interests of all concerned may sue or defend for the benefit of all. Any
party in interest shall have the right to intervene to protect his individual
interest.

From the foregoing definition, the requisites of a class suit are: 1) the
subject matter of controversy is one of common or general interest to many
persons; 2) the parties affected are so numerous that it is impracticable to
bring them all to court; and 3) the parties bringing the class suit are
sufficiently numerous or representative of the class and can fully protect the
interests of all concerned.

In Mathay v. The Consolidated Bank and Trust Company,[3] the Court

held that:

An action does not become a class suit merely because it is designated as

such in the pleadings. Whether the suit is or is not a class suit depends
upon the attending facts, and the complaint, or other pleading initiating
the class action should allege the existence of the necessary facts, to wit,
the existence of a subject matter of common interest, and the existence of a
class and the number of persons in the alleged class, in order that the
court might be enabled to determine whether the members of the class
are so numerous as to make it impracticable to bring them all before
 the court, to contrast the number appearing on the record with the
number in the class and to determine whether claimants on record
adequately represent the class and the subject matter of general or
common interest. (Emphases ours.)

Here, the petition failed to state the number of NPO employees who
would be affected by the assailed Executive Order and who were allegedly
represented by petitioners.It was the Solicitor General, as counsel for
respondents, who pointed out that there were about 549 employees in the
NPO.[4] The 67 petitioners undeniably comprised a small fraction of the
NPO employees whom they claimed to represent. Subsequently, 32 of the
original petitioners executed an Affidavit of Desistance, while one signed a
letter denying ever signing the petition,[5] ostensibly reducing the number of
petitioners to 34. We note that counsel for the petitioners challenged the
validity of the desistance or withdrawal of some of the petitioners and
insinuated that such desistance was due to pressure from people close to the
seat of power.[6] Still, even if we were to disregard the affidavit of desistance
filed by some of the petitioners, it is highly doubtful that a sufficient,
representative number of NPO employees have instituted this purported
class suit. A perusal of the petition itself would show that of the 67
petitioners who signed the Verification/Certification of Non-Forum
Shopping, only 20 petitioners were in fact mentioned in the jurat as having
duly subscribed the petition before the notary public. In other words, only
20 petitioners effectively instituted the present case.
Indeed, in MVRS Publications, Inc. v. Islamic Dawah Council of the
Philippines, Inc.,[7] we observed that an element of a class suit or
representative suit is the adequacy of representation. In determining the
question of fair and adequate representation of members of a class, the court
must consider (a) whether the interest of the named party is coextensive
with the interest of the other members of the class; (b) the proportion of
those made a party, as it so bears, to the total membership of the class; and
(c) any other factor bearing on the ability of the named party to speak for the
rest of the class.
 Previously, we held in Ibaes v. Roman Catholic Church[8] that where
the interests of the plaintiffs and the other members of the class they seek to
represent are diametrically opposed, the class suit will not prosper.

It is worth mentioning that a Manifestation of Desistance,[9] to which

the previously mentioned Affidavit of Desistance[10] was attached, was filed
by the President of the National Printing Office Workers Association
(NAPOWA). The said manifestation expressed NAPOWAs opposition to
the filing of the instant petition in any court. Even if we take into account
the contention of petitioners counsel that the NAPOWA President had no
legal standing to file such manifestation, the said pleading is a clear
indication that there is a divergence of opinions and views among the
members of the class sought to be represented, and not all are in favor of
filing the present suit. There is here an apparent conflict between petitioners
interests and those of the persons whom they claim to represent. Since it
cannot be said that petitioners sufficiently represent the interests of the
entire class, the instant case cannot be properly treated as a class suit.

As to the merits of the case, the petition raises two main grounds to
assail the constitutionality of Executive Order No. 378:

First, it is contended that President Arroyo cannot amend or repeal

Executive Order No. 285 by the mere issuance of another executive order
(Executive Order No. 378).Petitioners maintain that former President
Aquinos Executive Order No. 285 is a legislative enactment, as the same
was issued while President Aquino still had legislative powers under the
Freedom Constitution;[11] thus, only Congress through legislation can validly
amend Executive Order No. 285.

Second, petitioners maintain that the issuance of Executive Order No.

378 would lead to the eventual abolition of the NPO and would violate the
security of tenure of NPO employees.

Anent the first ground raised in the petition, we find the same patently
without merit.
 It is a well-settled principle in jurisprudence that the President has the
power to reorganize the offices and agencies in the executive department in
line with the Presidents constitutionally granted power of control over
executive offices and by virtue of previous delegation of the legislative
power to reorganize executive offices under existing statutes.

In Buklod ng Kawaning EIIB v. Zamora,[12] the Court pointed out that

Executive Order No. 292 or the Administrative Code of 1987 gives the
President continuing authority to reorganize and redefine the functions of
the Office of the President. Section 31, Chapter 10, Title III, Book III of the
said Code, is explicit:

Sec. 31. Continuing Authority of the President to Reorganize his

Office. The President, subject to the policy in the Executive Office and
in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the
following actions:

(1) Restructure the internal organization of the

Office of the President Proper, including the immediate
Offices, the President Special Assistants/Advisers System
and the Common Staff Support System, by abolishing,
consolidating or merging units thereof or transferring
functions from one unit to another;

(2) Transfer any function under the Office of

the President to any other Department or Agency as
well as transfer functions to the Office of the
President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the

President to any other department or agency as well
as transfer agencies to the Office of the President from
other Departments or agencies. (Emphases ours.)

Interpreting the foregoing provision, we held in Buklod ng Kawaning

EIIB, thus:
 But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does not
have to end here. We must not lose sight of the very source of the power
that which constitutes an express grant of power. Under Section 31, Book
III of Executive Order No. 292 (otherwise known as the Administrative
Code of 1987), the President, subject to the policy 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.[13] (Emphasis ours.)

It is undisputed that the NPO, as an agency that is part of the Office of

the Press Secretary (which in various times has been an agency directly
attached to the Office of the Press Secretary or as an agency under the
Philippine Information Agency), is part of the Office of the President.[14]

Pertinent to the case at bar, Section 31 of the Administrative Code of

1987 quoted above authorizes the President (a) to restructure the internal
organization of the Office of the President Proper, including the immediate
Offices, the President Special Assistants/Advisers System and the Common
Staff Support System, by abolishing, consolidating or merging units thereof
or transferring functions from one unit to another, and (b) to transfer
functions or offices from the Office of the President to any other Department
or Agency in the Executive Branch, and vice versa.

Concomitant to such power to abolish, merge or consolidate offices in

the Office of the President Proper and to transfer functions/offices not only
among the offices in the Office of President Proper but also the rest of the
Office of the President and the Executive Branch, the President implicitly
has the power to effect less radical or less substantive changes to the
functional and internal structure of the Office of the President, including the
modification of functions of such executive agencies as the exigencies of the
service may require.

In the case at bar, there was neither an abolition of the NPO nor a
removal of any of its functions to be transferred to another agency. Under
the assailed Executive Order No. 378, the NPO remains the main printing
arm of the government for all kinds of government forms and publications
but in the interest of greater economy and encouraging efficiency and
profitability, it must now compete with the private sector for certain
government printing jobs, with the exception of election paraphernalia which
remains the exclusive responsibility of the NPO, together with the Bangko
Sentral ng Pilipinas, as the Commission on Elections may determine. At
most, there was a mere alteration of the main function of the NPO by
limiting the exclusivity of its printing responsibility to election forms.[15]

There is a view that the reorganization actions that the President may
take with respect to agencies in the Office of the President are strictly
limited to transfer of functions and offices as seemingly provided in Section
31 of the Administrative Code of 1987.

However, Section 20, Chapter 7, Title I, Book III of the same Code
significantly provides:

Sec. 20. Residual Powers. Unless Congress provides otherwise, the

President shall exercise such other powers and functions vested in the
President which are provided for under the laws and which are not
specifically enumerated above, or which are not delegated by the President
in accordance with law. (Emphasis ours.)

Pursuant to Section 20, the power of the President to reorganize the

Executive Branch under Section 31 includes such powers and functions that
may be provided for under other laws. To be sure, an inclusive and broad
interpretation of the Presidents power to reorganize executive offices has
been consistently supported by specific provisions ingeneral
appropriations laws.
 In the oft-cited Larin v. Executive Secretary,[16] the Court likewise
adverted to certain provisions of Republic Act No. 7645, the general
appropriations law for 1993, as among the statutory bases for the Presidents
power to reorganize executive agencies, to wit:

Section 48 of R.A. 7645 provides that:

Sec. 48. Scaling Down and Phase Out of Activities
of Agencies Within the Executive Branch. The heads of
departments, bureaus and offices and agencies are hereby
directed to identify their respective activities which are no
longer essential in the delivery of public services and which
may be scaled down, phased out or abolished, subject to
civil [service] rules and regulations. x x x. Actual scaling
down, phasing out or abolition of the activities shall be
effected pursuant to Circulars or Orders issued for the
purpose by the Office of the President.
Said provision clearly mentions the acts of "scaling down, phasing out
and abolition" of offices only and does not cover the creation of offices
or transfer of functions. Nevertheless, the act of creating and
decentralizing is included in the subsequent provision of Section 62,
which provides that:
Sec. 62. Unauthorized organizational changes.
Unless otherwise created by law or directed by the
President of the Philippines, no organizational unit or
changes in key positions in any department or agency shall
be authorized in their respective organization structures and
be funded from appropriations by this Act.
The foregoing provision evidently shows that the President is
authorized to effect organizational changes including the creation of
offices in the department or agency concerned.
The contention of petitioner that the two provisions are riders deserves
scant consideration. Well settled is the rule that every law has in its favor
the presumption of constitutionality. Unless and until a specific provision
of the law is declared invalid and unconstitutional, the same is valid and
binding for all intents and purposes.[17] (Emphases ours)

Buklod ng Kawaning EIIB v. Zamora,[18] where the Court upheld as

valid then President Joseph Estradas Executive Order No. 191 deactivating
the Economic Intelligence and Investigation Bureau (EIIB) of the
Department of Finance, hewed closely to the reasoning in Larin. The Court,
among others, also traced from the General Appropriations Act[19] the
Presidents authority to effect organizational changes in the department or
agency under the executive structure, thus:

We adhere to the precedent or ruling in Larin that this provision recognizes

the authority of the President to effect organizational changes in the
department or agency under the executive structure. Such a ruling further
finds support in Section 78 of Republic Act No. 8760. Under this law, the
heads of departments, bureaus, offices and agencies and other entities in the
Executive Branch are directed (a) to conduct a comprehensive review of
their respective mandates, missions, objectives, functions, programs,
projects, activities and systems and procedures; (b) identify activities which
are no longer essential in the delivery of public services and which may be
scaled down, phased-out or abolished; and (c) adopt measures that will
result in the streamlined organization and improved overall
performance of their respective agencies. Section 78 ends up with the
mandate that the actual streamlining and productivity improvement in
agency organization and operation shall be effected pursuant to Circulars or
Orders issued for the purpose by the Office of the President. x x
x.[20] (Emphasis ours)

Notably, in the present case, the 2003 General Appropriations Act,

which was reenacted in 2004 (the year of the issuance of Executive Order
No. 378), likewise gave the President the authority to effect a wide variety
of organizational changes in any department or agency in the Executive
Branch. Sections 77 and 78 of said Act provides:

Section 77. Organized Changes. Unless otherwise provided by

law or directed by the President of the Philippines, no changes in key
positions or organizational units in any department or agency shall be
authorized in their respective organizational structures and funded from
appropriations provided by this Act.

Section 78. Institutional Strengthening and Productivity

Improvement in Agency Organization and Operations and
Implementation of Organization/Reorganization Mandated by Law.The
Government shall adopt institutional strengthening and productivity
improvement measures to improve service delivery and enhance
productivity in the government, as directed by the President of
the Philippines. The heads of departments, bureaus, offices, agencies, and
other entities of the Executive Branch shall accordingly conduct a
comprehensive review of their respective mandates, missions, objectives,
functions, programs, projects, activities and systems and procedures;
identify areas where improvements are necessary; and implement
 corresponding structural, functional and operational adjustments
that will result in streamlined organization and operations and
improved performance and productivity: PROVIDED, That actual
streamlining and productivity improvements in agency organization and
operations, as authorized by the President of the Philippines for the
purpose, including the utilization of savings generated from such
activities, shall be in accordance with the rules and regulations to be
issued by the DBM, upon consultation with the Presidential Committee
on Effective Governance: PROVIDED, FURTHER, That in the
implementation of organizations/reorganizations, or specific changes
in agency structure, functions and operations as a result of
institutional strengthening or as mandated by law, the appropriation,
including the functions, projects, purposes and activities of agencies
concerned may be realigned as may be necessary: PROVIDED,
FINALLY, That any unexpended balances or savings in appropriations
may be made available for payment of retirement gratuities and separation
benefits to affected personnel, as authorized under existing laws.
(Emphases and underscoring ours.)

Implicitly, the aforequoted provisions in the appropriations law

recognize the power of the President to reorganize even executive offices
already funded by the said appropriations act, including the power to
implement structural, functional, and operational adjustments in the
executive bureaucracy and, in so doing, modify or realign appropriations of
funds as may be necessary under such reorganization. Thus, insofar as
petitioners protest the limitation of the NPOs appropriations to its own
income under Executive Order No. 378, the same is statutorily authorized by
the above provisions.

In the 2003 case of Bagaoisan v. National Tobacco

Administration,[21] we upheld the streamlining of the National Tobacco
Administration through a reduction of its personnel and deemed the same as
included in the power of the President to reorganize executive offices
granted under the laws, notwithstanding that such streamlining neither
involved an abolition nor a transfer of functions of an office. To quote the
relevant portion of that decision:
In the recent case of Rosa Ligaya C. Domingo, et al. vs. Hon. Ronaldo D.
Zamora, in his capacity as the Executive Secretary, et al., this Court has
had occasion to also delve on the Presidents power to reorganize the
 Office of the President under Section 31(2) and (3) of Executive Order No.
292 and the power to reorganize the Office of the President Proper. x x x
xxxx
The first sentence of the law is an express grant to the President of
a continuing authority to reorganize the administrative structure of the
Office of the President. The succeeding numbered paragraphs are not
in the nature of provisos that unduly limit the aim and scope of the
grant to the President of the power to reorganize but are to be viewed
in consonance therewith. Section 31(1) of Executive Order No. 292
specifically refers to the Presidents power to restructure the internal
organization of the Office of the President Proper, by abolishing,
consolidating or merging units hereof or transferring functions from one
unit to another, while Section 31(2) and (3) concern executive offices
outside the Office of the President Properallowing the President to transfer
any function under the Office of the President to any other Department or
Agency and vice-versa, and the transfer of any agency under the Office of
the President to any other department or agency and vice-versa.
In the present instance, involving neither an abolition nor
transfer of offices, the assailed action is a mere reorganization under
the general provisions of the law consisting mainly of streamlining the
NTA in the interest of simplicity, economy and efficiency. It is an act
well within the authority of the President motivated and carried out,
according to the findings of the appellate court, in good faith, a factual
assessment that this Court could only but accept.[22] (Emphases and
underscoring supplied.)

In the more recent case of Tondo Medical Center Employees

Association v. Court of Appeals,[23] which involved a structural and
functional reorganization of the Department of Health under an
executive order, we reiterated the principle that the power of the President
to reorganize agencies under the executive department by executive or
administrative order is constitutionally and statutorily recognized. We held
in that case:

This Court has already ruled in a number of cases that the

President may, by executive or administrative order, direct the
reorganization of government entities under the Executive
Department. This is also sanctioned under the Constitution, as well as
other statutes.

Section 17, Article VII of the 1987 Constitution, clearly

states: [T]he president shall have control of all executive departments,
bureaus and offices. Section 31, Book III, Chapter 10 of Executive
Order No. 292, also known as the Administrative Code of 1987 reads:

SEC. 31. Continuing Authority of the President

to Reorganize his Office - The President, subject to the
policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing
authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any
of the following actions:

xxxx

In Domingo v. Zamora [445 Phil. 7 (2003)], this Court explained

the rationale behind the Presidents continuing authority under the
Administrative Code to reorganize the administrative structure of the
Office of the President. The law grants the President the power to
reorganize the Office of the President in recognition of the recurring
need of every President to reorganize his or her office to achieve
simplicity, economy and efficiency. To remain effective and efficient, it
must be capable of being shaped and reshaped by the President in the
manner the Chief Executive deems fit to carry out presidential directives
and policies.

The Administrative Code provides that the Office of the President

consists of the Office of the President Proper and the agencies under
it. The agencies under the Office of the President are identified in
Section 23, Chapter 8, Title II of the Administrative Code:

Sec. 23. The Agencies under the Office of the

President.The agencies under the Office of the President
refer to those offices placed under the chairmanship of the
President, those under the supervision and control of the
President, those under the administrative supervision of the
Office of the President, those attached to it for policy and
program coordination, and those that are not placed by law
or order creating them under any specific department.

xxxx

The power of the President to reorganize the executive department

is likewise recognized in general appropriations laws. x x x.

xxxx
 Clearly, Executive Order No. 102 is well within the constitutional power
of the President to issue. The President did not usurp any legislative
prerogative in issuing Executive Order No. 102. It is an exercise of the
Presidents constitutional power of control over the executive
department, supported by the provisions of the Administrative Code,
recognized by other statutes, and consistently affirmed by this
Court.[24] (Emphases supplied.)

Subsequently, we ruled in Anak Mindanao Party-List Group v. Executive

Secretary[25] that:

The Constitutions express grant of the power of control in the President

justifies an executive action to carry out reorganization measures under a
broad authority of law.

In enacting a statute, the legislature is presumed to have

deliberated with full knowledge of all existing laws and jurisprudence on
the subject. It is thus reasonable to conclude that in passing a statute
which places an agency under the Office of the President, it was in
accordance with existing laws and jurisprudence on the Presidents power
to reorganize.

In establishing an executive department, bureau or office, the

legislature necessarily ordains an executive agencys position in the scheme
of administrative structure. Such determination is primary, but subject to
the Presidents continuing authority to reorganize the administrative
structure. As far as bureaus, agencies or offices in the executive
department are concerned, the power of control may justify the President
to deactivate the functions of a particular office. Or a law may expressly
grant the President the broad authority to carry out reorganization
measures. The Administrative Code of 1987 is one such law.[26]

The issuance of Executive Order No. 378 by President Arroyo is an

exercise of a delegated legislative power granted by the aforementioned
Section 31, Chapter 10, Title III, Book III of the Administrative Code of
1987, which provides for the continuing authority of the President to
reorganize the Office of the President, in order to achieve simplicity,
economy and efficiency. This is a matter already well-entrenched in
jurisprudence. The reorganization of such an office through executive or
administrative order is also recognized in the Administrative Code of
1987. Sections 2 and 3, Chapter 2, Title I, Book III of the said Code provide:

Sec. 2. Executive Orders. - Acts of the President providing for rules of a

general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated
in executive orders.

Sec. 3. Administrative Orders. - Acts of the President which relate to

particular aspects of governmental operations in pursuance of his duties
as administrative head shall be promulgated inadministrative orders.
(Emphases supplied.)

To reiterate, we find nothing objectionable in the provision in

Executive Order No. 378 limiting the appropriation of the NPO to its own
income. Beginning with Larin and in subsequent cases, the Court has noted
certain provisions in the general appropriations laws as likewise reflecting
the power of the President to reorganize executive offices or agencies even
to the extent of modifying and realigning appropriations for that purpose.

Petitioners contention that the issuance of Executive Order No. 378 is

an invalid exercise of legislative power on the part of the President has no
legal leg to stand on.

In all, Executive Order No. 378, which purports to institute necessary

reforms in government in order to improve and upgrade efficiency in the
delivery of public services by redefining the functions of the NPO and
limiting its funding to its own income and to transform it into a self-reliant
agency able to compete with the private sector, is well within the
prerogative of President Arroyo under her continuing delegated legislative
power to reorganize her own office. As pointed out in the separate
concurring opinion of our learned colleague, Associate Justice Antonio T.
Carpio, the objective behind Executive Order No. 378 is wholly consistent
with the state policy contained in Republic Act No. 9184 or the Government
Procurement Reform Act to encourage competitiveness by extending equal
opportunity to private contracting parties who are eligible and qualified.[27]
 To be very clear, this delegated legislative power to reorganize
pertains only to the Office of the President and the departments, offices and
agencies of the executive branch and does not include the Judiciary, the
Legislature or the constitutionally-created or mandated bodies. Moreover, it
must be stressed that the exercise by the President of the power to
reorganize the executive department must be in accordance with the
Constitution, relevant laws and prevailing jurisprudence.

In this regard, we are mindful of the previous pronouncement of this

Court in Dario v. Mison[28] that:
Reorganizations in this jurisdiction have been regarded as
valid provided they are pursued in good faith. As a general rule, a
reorganization is carried out in good faith if it is for the purpose of
economy or to make bureaucracy more efficient. In that event, no
dismissal (in case of a dismissal) or separation actually occurs because the
position itself ceases to exist. And in that case, security of tenure would
not be a Chinese wall. Be that as it may, if the abolition, which is nothing
else but a separation or removal, is done for political reasons or purposely
to defeat security of tenure, or otherwise not in good faith, no valid
abolition takes place and whatever abolition is done, is void ab initio.
There is an invalid abolition as where there is merely a change of
nomenclature of positions, or where claims of economy are belied by the
existence of ample funds. (Emphasis ours.)

Stated alternatively, the presidential power to reorganize agencies and

offices in the executive branch of government is subject to the condition that
such reorganization is carried out in good faith.

If the reorganization is done in good faith, the abolition of positions,

which results in loss of security of tenure of affected government employees,
would be valid. InBuklod ng Kawaning EIIB v. Zamora,[29] we even
observed that there was no such thing as an absolute right to hold
office. Except those who hold constitutional offices, which provide for
special immunity as regards salary and tenure, no one can be said to have
any vested right to an office or salary.[30]

This brings us to the second ground raised in the petition that

Executive Order No. 378, in allowing government agencies to secure their
printing requirements from the private sector and in limiting the budget of
the NPO to its income, will purportedly lead to the gradual abolition of the
NPO and the loss of security of tenure of its present employees. In other
words, petitioners avow that the reorganization of the NPO under Executive
Order No. 378 is tainted with bad faith. The basic evidentiary rule is that he
who asserts a fact or the affirmative of an issue has the burden of proving
it.[31]

A careful review of the records will show that petitioners utterly

failed to substantiate their claim. They failed to allege, much less prove,
sufficient facts to show that the limitation of the NPOs budget to its own
income would indeed lead to the abolition of the position, or removal from
office, of any employee. Neither did petitioners present any shred of proof
of their assertion that the changes in the functions of the NPO were for
political considerations that had nothing to do with improving the efficiency
of, or encouraging operational economy in, the said agency.

In sum, the Court finds that the petition failed to show any
constitutional infirmity or grave abuse of discretion amounting to lack or
excess of jurisdiction in President Arroyos issuance of Executive Order No.
378.

WHEREFORE, the petition is hereby DISMISSED and the prayer

for a Temporary Restraining Order and/or a Writ of Preliminary Injunction
is hereby DENIED. No costs.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice
 WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA
Associate Justice LUCAS P. BERSAMIN
Associate Justice
 On official leave
MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE P. PEREZ

Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

*
On official leave.
[1]
ABOLISHING THE GENERAL SERVICES ADMINISTRATION AND TRANSFERRING ITS
FUNCTIONS TO APPROPRIATE GOVERNMENT AGENCIES.
[2]
328 Phil. 1187, 1204 (1996).
[3] 157 Phil. 551, 563-564 (1974).
[4]
Respondents Comment on the Manifestation of Desistance, rollo, p. 86.
[5]
Id. at 30-32.
[6]
Id. at 44.
[7]
444 Phil. 230, 257 (2003); citing 59 Am Jur 2d, 456 (1977).
[8]
12 Phil. 227, 241 (1908).
[9]
Rollo, p. 29.
[10]
Id. at 30-32.
[11]
DECLARING NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE
PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL
CONSTITUTION, AND PROVIDING FOR AN ORDERLY TRANSITION TO A
GOVERNMENT UNDER A NEW CONSTITUTION.
[12]
413 Phil. 281 (2001).
[13]
Id. at 294-295.
[14]
Section 23, Chapter 8, Title II, Book III of the Administrative Code of 1987 provides:
Section 23. The Agencies under the Office of the President. - The agencies under the Office of the President
refer to those offices placed under the chairmanship of the President, those under the supervision
and control of the President, those under the administrative supervision of the Office of the
President, those attached to it for policy and program coordination, and those that are not placed
by law or order creating them under any specific department.
[15]
Subsequently, in order to harmonize Executive Order No. 378 with other executive issuances and laws
relating to the printing of government forms, President Arroyo, through the Executive Secretary,
issued Memorandum Circular No. 180 (dated August 13, 2009) to clarify the printing
responsibility of the NPO. The said issuance provided that the NPO had exclusive printing
jurisdiction over standard and accountable forms with money value and specialized accountable
forms, which may be contracted out to the NPOs accredited private security printers under the
guidelines therein provided. It also affirmed the NPOs exclusive jurisdiction over the printing of
election forms and public documents, such as the Official Gazette, General Appropriations Act,
Philippine Reports and development information materials of the Philippine Information Agency.
It is only with respect to other standard accountable forms and other government printing jobs that
private providers may be engaged in accordance with prescribed guidelines and upon written
waiver issued by the NPO.
[16]
G.R. No. 112745, October 16, 1997, 280 SCRA 713.
[17]
Id. at 729-730.
[18]
Supra note 12.
[19]
Republic Act 8760, signed into law on February 16, 2000.
[20]
Buklod ng Kawaning EIIB v. Zamora, supra note 12 at 293-294.
[21]
455 Phil. 761 (2003).
[22]
Id. at 775-772.
[23]
G.R. No. 167324, July 17, 2007, 527 SCRA 746.
[24]
Id. at 766-770.
[25]
G.R. No. 166052, August 29, 2007, 531 SCRA 583.
[26]
Id. at 596.
[27]
It is, however, highly debatable whether Executive Order No. 378 is a mere implementation of the
Government Procurement Reform Act, as Justice Carpio proposes, since there is nothing in the
said statute that authorizes modification of the functions or appropriations of an executive office
or agency.
[28]
G.R. Nos. 81954, 81967, 82023, 83737, 85310, 85335 and 86241, August 8, 1989, 176 SCRA 84, 127.
[29]
Supra note 12.
[30]
Id.
[31]
Eureka Personnel & Management Services, Inc. v. Valencia, G.R. No. 159358, July 15, 2009,
citing Republic v. Orbecido III, G.R. No. 154380, October 5, 2005, 472 SCRA 114; Noceda v.
Court of Appeals, 372 Phil. 383 (1999); Luxuria Homes, Inc. v. Court of Appeals, 361 Phil. 989
(1999).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 92013 July 25, 1990

SALVADOR H. LAUREL, petitioner,

vs.
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL MANGLAPUS, as
Secretary of Foreign Affairs, and CATALINO MACARAIG, as Executive
Secretary, respondents.

G.R. No. 92047 July 25, 1990

DIONISIO S. OJEDA, petitioner,

vs.
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS PRIVATIZATION TRUST
CHAIRMAN RAMON T. GARCIA, AMBASSADOR RAMON DEL ROSARIO, et al., as
members of the PRINCIPAL AND BIDDING COMMITTEES ON THE
UTILIZATION/DISPOSITION PETITION OF PHILIPPINE GOVERNMENT PROPERTIES IN
JAPAN,respondents.

Arturo M. Tolentino for petitioner in 92013.

GUTIERREZ, JR., J.:

These are two petitions for prohibition seeking to enjoin respondents, their
representatives and agents from proceeding with the bidding for the sale of the 3,179
square meters of land at 306 Roppongi, 5-Chome Minato-ku Tokyo, Japan scheduled
on February 21, 1990. We granted the prayer for a temporary restraining order effective
February 20, 1990. One of the petitioners (in G.R. No. 92047) likewise prayes for a writ
of mandamus to compel the respondents to fully disclose to the public the basis of
their decision to push through with the sale of the Roppongi property inspire of strong
public opposition and to explain the proceedings which effectively prevent the
participation of Filipino citizens and entities in the bidding process.

The oral arguments in G.R. No. 92013, Laurel v. Garcia, et al. were heard by the Court
on March 13, 1990. After G.R. No. 92047, Ojeda v. Secretary Macaraig, et al. was filed,
the respondents were required to file a comment by the Court's resolution dated
February 22, 1990. The two petitions were consolidated on March 27, 1990 when the
memoranda of the parties in the Laurel case were deliberated upon.

The Court could not act on these cases immediately because the respondents filed a
motion for an extension of thirty (30) days to file comment in G.R. No. 92047, followed
by a second motion for an extension of another thirty (30) days which we granted on
May 8, 1990, a third motion for extension of time granted on May 24, 1990 and a fourth
motion for extension of time which we granted on June 5, 1990 but calling the attention
of the respondents to the length of time the petitions have been pending. After the
comment was filed, the petitioner in G.R. No. 92047 asked for thirty (30) days to file a
reply. We noted his motion and resolved to decide the two (2) cases.

The subject property in this case is one of the four (4) properties in Japan acquired by
the Philippine government under the Reparations Agreement entered into with Japan
on May 9, 1956, the other lots being:

(1) The Nampeidai Property at 11-24 Nampeidai-machi, Shibuya-ku, Tokyo which has
an area of approximately 2,489.96 square meters, and is at present the site of the
Philippine Embassy Chancery;

(2) The Kobe Commercial Property at 63 Naniwa-cho, Kobe, with an area of around
764.72 square meters and categorized as a commercial lot now being used as a
warehouse and parking lot for the consulate staff; and

(3) The Kobe Residential Property at 1-980-2 Obanoyama-cho, Shinohara, Nada-ku,

Kobe, a residential lot which is now vacant.

The properties and the capital goods and services procured from the Japanese
government for national development projects are part of the indemnification to the
Filipino people for their losses in life and property and their suffering during World War
II.

The Reparations Agreement provides that reparations valued at $550 million would be
payable in twenty (20) years in accordance with annual schedules of procurements to
be fixed by the Philippine and Japanese governments (Article 2, Reparations
Agreement). Rep. Act No. 1789, the Reparations Law, prescribes the national policy on
procurement and utilization of reparations and development loans. The procurements
are divided into those for use by the government sector and those for private parties in
projects as the then National Economic Council shall determine. Those intended for
the private sector shall be made available by sale to Filipino citizens or to one hundred
(100%) percent Filipino-owned entities in national development projects.

The Roppongi property was acquired from the Japanese government under the Second
Year Schedule and listed under the heading "Government Sector", through
Reparations Contract No. 300 dated June 27, 1958. The Roppongi property consists of
the land and building "for the Chancery of the Philippine Embassy" (Annex M-D to
Memorandum for Petitioner, p. 503). As intended, it became the site of the Philippine
Embassy until the latter was transferred to Nampeidai on July 22, 1976 when the
Roppongi building needed major repairs. Due to the failure of our government to
provide necessary funds, the Roppongi property has remained undeveloped since that
time.

A proposal was presented to President Corazon C. Aquino by former Philippine

Ambassador to Japan, Carlos J. Valdez, to make the property the subject of a lease
agreement with a Japanese firm - Kajima Corporation which shall construct two (2)
buildings in Roppongi and one (1) building in Nampeidai and renovate the present
Philippine Chancery in Nampeidai. The consideration of the construction would be the
lease to the foreign corporation of one (1) of the buildings to be constructed in
Roppongi and the two (2) buildings in Nampeidai. The other building in Roppongi shall
then be used as the Philippine Embassy Chancery. At the end of the lease period, all
the three leased buildings shall be occupied and used by the Philippine government.
No change of ownership or title shall occur. (See Annex "B" to Reply to Comment) The
Philippine government retains the title all throughout the lease period and thereafter.
However, the government has not acted favorably on this proposal which is pending
approval and ratification between the parties. Instead, on August 11, 1986, President
Aquino created a committee to study the disposition/utilization of Philippine
government properties in Tokyo and Kobe, Japan through Administrative Order No. 3,
followed by Administrative Orders Numbered 3-A, B, C and D.

On July 25, 1987, the President issued Executive Order No. 296 entitling non-Filipino
citizens or entities to avail of separations' capital goods and services in the event of
sale, lease or disposition. The four properties in Japan including the Roppongi were
specifically mentioned in the first "Whereas" clause.

Amidst opposition by various sectors, the Executive branch of the government has
been pushing, with great vigor, its decision to sell the reparations properties starting
with the Roppongi lot. The property has twice been set for bidding at a minimum floor
price of $225 million. The first bidding was a failure since only one bidder qualified. The
second one, after postponements, has not yet materialized. The last scheduled bidding
on February 21, 1990 was restrained by his Court. Later, the rules on bidding were
changed such that the $225 million floor price became merely a suggested floor price.

The Court finds that each of the herein petitions raises distinct issues. The petitioner in
G.R. No. 92013 objects to the alienation of the Roppongi property to anyone while the
petitioner in G.R. No. 92047 adds as a principal objection the alleged unjustified bias of
the Philippine government in favor of selling the property to non-Filipino citizens and
entities. These petitions have been consolidated and are resolved at the same time for
the objective is the same - to stop the sale of the Roppongi property.

The petitioner in G.R. No. 92013 raises the following issues:

(1) Can the Roppongi property and others of its kind be alienated by the Philippine
Government?; and

(2) Does the Chief Executive, her officers and agents, have the authority and
jurisdiction, to sell the Roppongi property?

Petitioner Dionisio Ojeda in G.R. No. 92047, apart from questioning the authority of the
government to alienate the Roppongi property assails the constitutionality of
Executive Order No. 296 in making the property available for sale to non-Filipino
citizens and entities. He also questions the bidding procedures of the Committee on
the Utilization or Disposition of Philippine Government Properties in Japan for being
discriminatory against Filipino citizens and Filipino-owned entities by denying them
the right to be informed about the bidding requirements.

II

In G.R. No. 92013, petitioner Laurel asserts that the Roppongi property and the related
lots were acquired as part of the reparations from the Japanese government for
diplomatic and consular use by the Philippine government. Vice-President Laurel
states that the Roppongi property is classified as one of public dominion, and not of
private ownership under Article 420 of the Civil Code (See infra).

The petitioner submits that the Roppongi property comes under "property intended for
public service" in paragraph 2 of the above provision. He states that being one of
public dominion, no ownership by any one can attach to it, not even by the State. The
Roppongi and related properties were acquired for "sites for chancery, diplomatic, and
consular quarters, buildings and other improvements" (Second Year Reparations
Schedule). The petitioner states that they continue to be intended for a necessary
service. They are held by the State in anticipation of an opportune use. (Citing 3
Manresa 65-66). Hence, it cannot be appropriated, is outside the commerce of man, or
to put it in more simple terms, it cannot be alienated nor be the subject matter of
contracts (Citing Municipality of Cavite v. Rojas, 30 Phil. 20 [1915]). Noting the non-use
of the Roppongi property at the moment, the petitioner avers that the same remains
property of public dominion so long as the government has not used it for other
purposes nor adopted any measure constituting a removal of its original purpose or
use.

The respondents, for their part, refute the petitioner's contention by saying that the
subject property is not governed by our Civil Code but by the laws of Japan where the
property is located. They rely upon the rule of lex situs which is used in determining
the applicable law regarding the acquisition, transfer and devolution of the title to a
property. They also invoke Opinion No. 21, Series of 1988, dated January 27, 1988 of
the Secretary of Justice which used the lex situs in explaining the inapplicability of
Philippine law regarding a property situated in Japan.

The respondents add that even assuming for the sake of argument that the Civil Code
is applicable, the Roppongi property has ceased to become property of public
dominion. It has become patrimonial property because it has not been used for public
service or for diplomatic purposes for over thirteen (13) years now (Citing Article 422,
Civil Code) and because the intention by the Executive Department and the
Congress to convert it to private use has been manifested by overt acts, such as,
among others: (1) the transfer of the Philippine Embassy to Nampeidai (2) the issuance
of administrative orders for the possibility of alienating the four government properties
in Japan; (3) the issuance of Executive Order No. 296; (4) the enactment by the
Congress of Rep. Act No. 6657 [the Comprehensive Agrarian Reform Law] on June 10,
1988 which contains a provision stating that funds may be taken from the sale of
Philippine properties in foreign countries; (5) the holding of the public bidding of the
Roppongi property but which failed; (6) the deferment by the Senate in Resolution No.
55 of the bidding to a future date; thus an acknowledgment by the Senate of the
government's intention to remove the Roppongi property from the public service
purpose; and (7) the resolution of this Court dismissing the petition in Ojeda v. Bidding
Committee, et al., G.R. No. 87478 which sought to enjoin the second bidding of the
Roppongi property scheduled on March 30, 1989.

III

In G.R. No. 94047, petitioner Ojeda once more asks this Court to rule on the
constitutionality of Executive Order No. 296. He had earlier filed a petition in G.R. No.
87478 which the Court dismissed on August 1, 1989. He now avers that the executive
order contravenes the constitutional mandate to conserve and develop the national
patrimony stated in the Preamble of the 1987 Constitution. It also allegedly violates:
(1) The reservation of the ownership and acquisition of alienable lands of the public
domain to Filipino citizens. (Sections 2 and 3, Article XII, Constitution; Sections 22 and
23 of Commonwealth Act 141). i t c-a sl

(2) The preference for Filipino citizens in the grant of rights, privileges and
concessions covering the national economy and patrimony (Section 10, Article VI,
Constitution);

(3) The protection given to Filipino enterprises against unfair competition and trade
practices;

(4) The guarantee of the right of the people to information on all matters of public
concern (Section 7, Article III, Constitution);

(5) The prohibition against the sale to non-Filipino citizens or entities not wholly owned
by Filipino citizens of capital goods received by the Philippines under the Reparations
Act (Sections 2 and 12 of Rep. Act No. 1789); and

(6) The declaration of the state policy of full public disclosure of all transactions
involving public interest (Section 28, Article III, Constitution).

Petitioner Ojeda warns that the use of public funds in the execution of an
unconstitutional executive order is a misapplication of public funds He states that
since the details of the bidding for the Roppongi property were never publicly
disclosed until February 15, 1990 (or a few days before the scheduled bidding), the
bidding guidelines are available only in Tokyo, and the accomplishment of
requirements and the selection of qualified bidders should be done in Tokyo,
interested Filipino citizens or entities owned by them did not have the chance to
comply with Purchase Offer Requirements on the Roppongi. Worse, the Roppongi
shall be sold for a minimum price of $225 million from which price capital gains tax
under Japanese law of about 50 to 70% of the floor price would still be deducted.

IV

The petitioners and respondents in both cases do not dispute the fact that the
Roppongi site and the three related properties were through reparations agreements,
that these were assigned to the government sector and that the Roppongi property
itself was specifically designated under the Reparations Agreement to house the
Philippine Embassy.

The nature of the Roppongi lot as property for public service is expressly spelled out. It
is dictated by the terms of the Reparations Agreement and the corresponding contract
of procurement which bind both the Philippine government and the Japanese
government.

There can be no doubt that it is of public dominion unless it is convincingly shown that
the property has become patrimonial. This, the respondents have failed to do.

As property of public dominion, the Roppongi lot is outside the commerce of man. It
cannot be alienated. Its ownership is a special collective ownership for general use
and enjoyment, an application to the satisfaction of collective needs, and resides in the
social group. The purpose is not to serve the State as a juridical person, but the
citizens; it is intended for the common and public welfare and cannot be the object of
appropration. (Taken from 3 Manresa, 66-69; cited in Tolentino, Commentaries on the
Civil Code of the Philippines, 1963 Edition, Vol. II, p. 26).

The applicable provisions of the Civil Code are:

ART. 419. Property is either of public dominion or of private ownership.

ART. 420. The following things are property of public dominion

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks shores roadsteads, and others of similar
character;

(2) Those which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth.

ART. 421. All other property of the State, which is not of the character stated in the
preceding article, is patrimonial property.

The Roppongi property is correctly classified under paragraph 2 of Article 420 of the
Civil Code as property belonging to the State and intended for some public service.

Has the intention of the government regarding the use of the property been changed
because the lot has been Idle for some years? Has it become patrimonial?

The fact that the Roppongi site has not been used for a long time for actual Embassy
service does not automatically convert it to patrimonial property. Any such conversion
happens only if the property is withdrawn from public use (Cebu Oxygen and
Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]). A property continues to be part of the
public domain, not available for private appropriation or ownership until there is a
formal declaration on the part of the government to withdraw it from being such
(Ignacio v. Director of Lands, 108 Phil. 335 [1960]).

The respondents enumerate various pronouncements by concerned public officials

insinuating a change of intention. We emphasize, however, that an abandonment of the
intention to use the Roppongi property for public service and to make it patrimonial
property under Article 422 of the Civil Code must be definite Abandonment cannot be
inferred from the non-use alone specially if the non-use was attributable not to the
government's own deliberate and indubitable will but to a lack of financial support to
repair and improve the property (See Heirs of Felino Santiago v. Lazaro, 166 SCRA 368
[1988]). Abandonment must be a certain and positive act based on correct legal
premises.

A mere transfer of the Philippine Embassy to Nampeidai in 1976 is not relinquishment

of the Roppongi property's original purpose. Even the failure by the government to
repair the building in Roppongi is not abandonment since as earlier stated, there
simply was a shortage of government funds. The recent Administrative Orders
authorizing a study of the status and conditions of government properties in Japan
were merely directives for investigation but did not in any way signify a clear intention
to dispose of the properties.

Executive Order No. 296, though its title declares an "authority to sell", does not have a
provision in its text expressly authorizing the sale of the four properties procured from
Japan for the government sector. The executive order does not declare that the
properties lost their public character. It merely intends to make the
properties available to foreigners and not to Filipinos alone in case of a sale, lease or
other disposition. It merely eliminates the restriction under Rep. Act No. 1789 that
reparations goods may be sold only to Filipino citizens and one hundred (100%)
percent Filipino-owned entities. The text of Executive Order No. 296 provides:

Section 1. The provisions of Republic Act No. 1789, as amended, and of other laws to
the contrary notwithstanding, the above-mentioned properties can be made available
for sale, lease or any other manner of disposition to non-Filipino citizens or to entities
owned by non-Filipino citizens.

Executive Order No. 296 is based on the wrong premise or assumption that the
Roppongi and the three other properties were earlier converted into alienable real
properties. As earlier stated, Rep. Act No. 1789 differentiates the procurements for the
government sector and the private sector (Sections 2 and 12, Rep. Act No. 1789). Only
the private sector properties can be sold to end-users who must be Filipinos or entities
owned by Filipinos. It is this nationality provision which was amended by Executive
Order No. 296.

Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which provides as one of the
sources of funds for its implementation, the proceeds of the disposition of the
properties of the Government in foreign countries, did not withdraw the Roppongi
property from being classified as one of public dominion when it mentions Philippine
properties abroad. Section 63 (c) refers to properties which are alienable and not to
those reserved for public use or service. Rep Act No. 6657, therefore, does not
authorize the Executive Department to sell the Roppongi property. It merely
enumerates possible sources of future funding to augment (as and when needed) the
Agrarian Reform Fund created under Executive Order No. 299. Obviously any property
outside of the commerce of man cannot be tapped as a source of funds.

The respondents try to get around the public dominion character of the Roppongi
property by insisting that Japanese law and not our Civil Code should apply.

It is exceedingly strange why our top government officials, of all people, should be the
ones to insist that in the sale of extremely valuable government property, Japanese law
and not Philippine law should prevail. The Japanese law - its coverage and effects,
when enacted, and exceptions to its provision is not presented to the Court It is
simply asserted that the lex loci rei sitae or Japanese law should apply without stating
what that law provides. It is a ed on faith that Japanese law would allow the sale.

We see no reason why a conflict of law rule should apply when no conflict of law
situation exists. A conflict of law situation arises only when: (1) There is a dispute over
the title or ownership of an immovable, such that the capacity to take and transfer
immovables, the formalities of conveyance, the essential validity and effect of the
transfer, or the interpretation and effect of a conveyance, are to be determined (See
Salonga, Private International Law, 1981 ed., pp. 377-383); and (2) A foreign law on land
ownership and its conveyance is asserted to conflict with a domestic law on the same
matters. Hence, the need to determine which law should apply.

In the instant case, none of the above elements exists.

The issues are not concerned with validity of ownership or title. There is no question
that the property belongs to the Philippines. The issue is the authority of the
respondent officials to validly dispose of property belonging to the State. And the
validity of the procedures adopted to effect its sale. This is governed by Philippine Law.
The rule of lex situs does not apply.

The assertion that the opinion of the Secretary of Justice sheds light on the relevance
of the lex situsrule is misplaced. The opinion does not tackle the alienability of the real
properties procured through reparations nor the existence in what body of the
authority to sell them. In discussing who are capableof acquiring the lots, the
Secretary merely explains that it is the foreign law which should determine who can
acquire the properties so that the constitutional limitation on acquisition of lands of
the public domain to Filipino citizens and entities wholly owned by Filipinos is
inapplicable. We see no point in belaboring whether or not this opinion is correct. Why
should we discuss who can acquire the Roppongi lot when there is no showing that it
can be sold?

The subsequent approval on October 4, 1988 by President Aquino of the

recommendation by the investigating committee to sell the Roppongi property was
premature or, at the very least, conditioned on a valid change in the public character of
the Roppongi property. Moreover, the approval does not have the force and effect of
law since the President already lost her legislative powers. The Congress had already
convened for more than a year.

Assuming for the sake of argument, however, that the Roppongi property is no longer
of public dominion, there is another obstacle to its sale by the respondents.

There is no law authorizing its conveyance.

Section 79 (f) of the Revised Administrative Code of 1917 provides

Section 79 (f ) Conveyances and contracts to which the Government is a party. In

cases in which the Government of the Republic of the Philippines is a party to any deed
or other instrument conveying the title to real estate or to any other property the value
of which is in excess of one hundred thousand pesos, the respective Department
Secretary shall prepare the necessary papers which, together with the proper
recommendations, shall be submitted to the Congress of the Philippines for approval
by the same. Such deed, instrument, or contract shall be executed and signed by the
President of the Philippines on behalf of the Government of the Philippines unless the
Government of the Philippines unless the authority therefor be expressly vested by law
in another officer. (Emphasis supplied)

The requirement has been retained in Section 48, Book I of the Administrative Code of
1987 (Executive Order No. 292).
SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines,
by the President, unless the authority therefor is expressly vested by law in another
officer.

(2) For property belonging to the Republic of the Philippines but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)

It is not for the President to convey valuable real property of the government on his or
her own sole will. Any such conveyance must be authorized and approved by a law
enacted by the Congress. It requires executive and legislative concurrence.

Resolution No. 55 of the Senate dated June 8, 1989, asking for the deferment of the sale
of the Roppongi property does not withdraw the property from public domain much
less authorize its sale. It is a mere resolution; it is not a formal declaration abandoning
the public character of the Roppongi property. In fact, the Senate Committee on
Foreign Relations is conducting hearings on Senate Resolution No. 734 which raises
serious policy considerations and calls for a fact-finding investigation of the
circumstances behind the decision to sell the Philippine government properties in
Japan.

The resolution of this Court in Ojeda v. Bidding Committee, et al., supra, did not pass
upon the constitutionality of Executive Order No. 296. Contrary to respondents'
assertion, we did not uphold the authority of the President to sell the Roppongi
property. The Court stated that the constitutionality of the executive order was not the
real issue and that resolving the constitutional question was "neither necessary nor
finally determinative of the case." The Court noted that "[W]hat petitioner ultimately
questions is the use of the proceeds of the disposition of the Roppongi property." In
emphasizing that "the decision of the Executive to dispose of the Roppongi property to
finance the CARP ... cannot be questioned" in view of Section 63 (c) of Rep. Act No.
6657, the Court did not acknowledge the fact that the property became alienable nor
did it indicate that the President was authorized to dispose of the Roppongi property.
The resolution should be read to mean that in case the Roppongi property is
re-classified to be patrimonial and alienable by authority of law, the proceeds of a sale
may be used for national economic development projects including the CARP.

Moreover, the sale in 1989 did not materialize. The petitions before us question the
proposed 1990 sale of the Roppongi property. We are resolving the issues raised in
these petitions, not the issues raised in 1989.

Having declared a need for a law or formal declaration to withdraw the Roppongi
property from public domain to make it alienable and a need for legislative authority to
allow the sale of the property, we see no compelling reason to tackle the constitutional
issues raised by petitioner Ojeda.

The Court does not ordinarily pass upon constitutional questions unless these
questions are properly raised in appropriate cases and their resolution is necessary for
the determination of the case (People v. Vera, 65 Phil. 56 [1937]). The Court will not
pass upon a constitutional question although properly presented by the record if the
case can be disposed of on some other ground such as the application of a statute or
general law (Siler v. Louisville and Nashville R. Co., 213 U.S. 175, [1909], Railroad
Commission v. Pullman Co., 312 U.S. 496 [1941]).

The petitioner in G.R. No. 92013 states why the Roppongi property should not be sold:

The Roppongi property is not just like any piece of property. It was given to the Filipino
people in reparation for the lives and blood of Filipinos who died and suffered during
the Japanese military occupation, for the suffering of widows and orphans who lost
their loved ones and kindred, for the homes and other properties lost by countless
Filipinos during the war. The Tokyo properties are a monument to the bravery and
sacrifice of the Filipino people in the face of an invader; like the monuments of Rizal,
Quezon, and other Filipino heroes, we do not expect economic or financial benefits
from them. But who would think of selling these monuments? Filipino honor and
national dignity dictate that we keep our properties in Japan as memorials to the
countless Filipinos who died and suffered. Even if we should become paupers we
should not think of selling them. For it would be as if we sold the lives and blood and
tears of our countrymen. (Rollo- G.R. No. 92013, p.147)

The petitioner in G.R. No. 92047 also states:

Roppongi is no ordinary property. It is one ceded by the Japanese government in

atonement for its past belligerence for the valiant sacrifice of life and limb and for
deaths, physical dislocation and economic devastation the whole Filipino people
endured in World War II.

It is for what it stands for, and for what it could never bring back to life, that its
significance today remains undimmed, inspire of the lapse of 45 years since the war
ended, inspire of the passage of 32 years since the property passed on to the
Philippine government.

Roppongi is a reminder that cannot should not be dissipated ... (Rollo-92047, p. 9)

It is indeed true that the Roppongi property is valuable not so much because of the
inflated prices fetched by real property in Tokyo but more so because of its symbolic
value to all Filipinos veterans and civilians alike. Whether or not the Roppongi and
related properties will eventually be sold is a policy determination where both the
President and Congress must concur. Considering the properties' importance and
value, the laws on conversion and disposition of property of public dominion must be
faithfully followed.

WHEREFORE, IN VIEW OF THE FOREGOING, the petitions are GRANTED. A writ of

prohibition is issued enjoining the respondents from proceeding with the sale of the
Roppongi property in Tokyo, Japan. The February 20, 1990 Temporary Restraining
Order is made PERMANENT.

SO ORDERED.

Melencio-Herrera, Paras, Bidin, Grio-Aquino and Regalado, JJ., concur.

Separate Opinions

CRUZ, J., concurring:

I concur completely with the excellent ponencia of Mr. Justice Gutierrez and will add
the following observations only for emphasis.

It is clear that the respondents have failed to show the President's legal authority to
sell the Roppongi property. When asked to do so at the hearing on these petitions, the
Solicitor General was at best ambiguous, although I must add in fairness that this was
not his fault. The fact is that there is -no such authority. Legal expertise alone cannot
conjure that statutory permission out of thin air.

Exec. Order No. 296, which reads like so much legislative, double talk, does not
contain such authority. Neither does Rep. Act No. 6657, which simply allows the
proceeds of the sale of our properties abroad to be used for the comprehensive
agrarian reform program. Senate Res. No. 55 was a mere request for the deferment of
the scheduled sale of tile Roppongi property, possibly to stop the transaction
altogether; and ill any case it is not a law. The sale of the said property may be
authorized only by Congress through a duly enacted statute, and there is no such law.

Once again, we have affirmed the principle that ours is a government of laws and not of
men, where every public official, from the lowest to the highest, can act only by virtue
of a valid authorization. I am happy to note that in the several cases where this Court
has ruled against her, the President of the Philippines has submitted to this principle
with becoming grace.

PADILLA, J., concurring:

I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only wish to make a few
observations which could help in further clarifying the issues.

Under our tripartite system of government ordained by the Constitution, it is Congress

that lays down or determines policies. The President executes such policies. The
policies determined by Congress are embodied in legislative enactments that have to
be approved by the President to become law. The President, of course, recommends to
Congress the approval of policies but, in the final analysis, it is Congress that is the
policy - determining branch of government.

The judiciary interprets the laws and, in appropriate cases, determines whether the
laws enacted by Congress and approved by the President, and presidential acts
implementing such laws, are in accordance with the Constitution.
The Roppongi property was acquired by the Philippine government pursuant to the
reparations agreement between the Philippine and Japanese governments. Under such
agreement, this property was acquired by the Philippine government for a specific
purpose, namely, to serve as the site of the Philippine Embassy in Tokyo, Japan.
Consequently, Roppongi is a property of public dominion and intended for public
service, squarely falling within that class of property under Art. 420 of the Civil Code,
which provides:

Art. 420. The following things are property of public dominion :

(1) ...

(2) Those which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth. (339a)

Public dominion property intended for public service cannot be alienated unless the
property is first transformed into private property of the state otherwise known as
patrimonial property of the state. 1 The transformation of public dominion property to
state patrimonial property involves, to my mind, a policy decision. It is a policy decision
because the treatment of the property varies according to its classification. Consequently,
it is Congress which can decide and declare the conversion of Roppongi from a public
dominion property to a state patrimonial property. Congress has made no such decision or
declaration.

Moreover, the sale of public property (once converted from public dominion to state
patrimonial property) must be approved by Congress, for this again is a matter of
policy (i.e. to keep or dispose of the property). Sec. 48, Book 1 of the Administrative
Code of 1987 provides:

SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines,
by the President, unless the authority therefor is expressly vested by law in another
officer.

(2) For property belonging to the Republic of the Philippines but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)

But the record is bare of any congressional decision or approval to sell Roppongi. The
record is likewise bare of any congressional authority extended to the President to sell
Roppongi thru public bidding or otherwise.

It is therefore, clear that the President cannot sell or order the sale of Roppongi thru
public bidding or otherwise without a prior congressional approval, first, converting
Roppongi from a public dominion property to a state patrimonial property, and, second,
authorizing the President to sell the same.

ACCORDINGLY, my vote is to GRANT the petition and to make PERMANENT the

temporary restraining order earlier issued by this Court.
SARMIENTO, J., concurring:

The central question, as I see it, is whether or not the so-called "Roppongi property'
has lost its nature as property of public dominion, and hence, has become patrimonial
property of the State. I understand that the parties are agreed that it was property
intended for "public service" within the contemplation of paragraph (2), of Article 430,
of the Civil Code, and accordingly, land of State dominion, and beyond human
commerce. The lone issue is, in the light of supervening developments, that is
non-user thereof by the National Government (for diplomatic purposes) for the last
thirteen years; the issuance of Executive Order No. 296 making it available for sale to
any interested buyer; the promulgation of Republic Act No. 6657, the Comprehensive
Agrarian Reform Law, making available for the program's financing, State assets sold;
the approval by the President of the recommendation of the investigating committee
formed to study the property's utilization; and the issuance of Resolution No. 55 of the
Philippine Senate requesting for the deferment of its disposition it, "Roppongi", is still
property of the public dominion, and if it is not, how it lost that character.

When land of the public dominion ceases to be one, or when the change takes place, is
a question our courts have debated early. In a 1906 decision, 1 it was held that property
of the public dominion, a public plaza in this instance, becomes patrimonial upon use
thereof for purposes other than a plaza. In a later case, 2 this ruling was reiterated. Likewise,
it has been held that land, originally private property, has become of public dominion upon
its donation to the town and its conversion and use as a public plaza. 3 It is notable that
under these three cases, the character of the property, and any change occurring therein,
depends on the actual use to which it is dedicated. 4

Much later, however, the Court held that "until a formal declaration on the part of the
Government, through the executive department or the Legislative, to the effect that the
land . . . is no longer needed for [public] service- for public use or for special industries,
[it] continue[s] to be part of the public [dominion], not available for private
expropriation or ownership." 5 So also, it was ruled that a political subdivision (the City of
Cebu in this case) alone may declare (under its charter) a city road abandoned and
thereafter, to dispose of it. 6

In holding that there is "a need for a law or formal declaration to withdraw the
Roppongi property from public domain to make it alienable and a land for legislative
authority to allow the sale of the property" 7the majority lays stress to the fact that: (1) An
affirmative act executive or legislative is necessary to reclassify property of the public
dominion, and (2) a legislative decree is required to make it alienable. It also clears the
uncertainties brought about by earlier interpretations that the nature of property-whether
public or patrimonial is predicated on the manner it is actually used, or not used, and in the
same breath, repudiates the Government's position that the continuous non-use of
"Roppongi", among other arguments, for "diplomatic purposes", has turned it into State
patrimonial property.

I feel that this view corresponds to existing pronouncements of this Court, among
other things, that: (1) Property is presumed to be State property in the absence of any
showing to the contrary; 8 (2) With respect to forest lands, the same continue to be lands
of the public dominion unless and until reclassified by the Executive Branch of the
Government; 9 and (3) All natural resources, under the Constitution, and subject to
exceptional cases, belong to the State. 10
I am elated that the Court has banished previous uncertainties.

FELICIANO, J., dissenting

With regret, I find myself unable to share the conclusions reached by Mr. Justice Hugo
E. Gutierrez, Jr.

For purposes of this separate opinion, I assume that the piece of land located in 306
Roppongi, 5-Chome, Minato-ku Tokyo, Japan (hereinafter referred to as the "Roppongi
property") may be characterized as property of public dominion, within the meaning of
Article 420 (2) of the Civil Code:

[Property] which belong[s] to the State, without being for public use, and are intended
for some public service -.

It might not be amiss however, to note that the appropriateness of trying to bring within
the confines of the simple threefold classification found in Article 420 of the Civil Code
("property for public use property "intended for some public service" and property
intended "for the development of the national wealth") all property owned by the
Republic of the Philippines whether found within the territorial boundaries of the
Republic or located within the territory of another sovereign State, is not self-evident.
The first item of the classification property intended for public use can scarcely be
properly applied to property belonging to the Republic but found within the territory of
another State. The third item of the classification property intended for the
development of the national wealth is illustrated, in Article 339 of the Spanish Civil
Code of 1889, by mines or mineral properties. Again, mineral lands owned by a
sovereign State are rarely, if ever, found within the territorial base of another sovereign
State. The task of examining in detail the applicability of the classification set out in
Article 420 of our Civil Code to property that the Philippines happens to own outside its
own boundaries must, however, be left to academicians.

For present purposes, too, I agree that there is no question of conflict of laws that is, at
the present time, before this Court. The issues before us relate essentially to authority
to sell the Roppongi property so far as Philippine law is concerned.

The majority opinion raises two (2) issues: (a) whether or not the Roppongi property
has been converted into patrimonial property or property of the private domain of the
State; and (b) assuming an affirmative answer to (a), whether or not there is legal
authority to dispose of the Roppongi property.

Addressing the first issue of conversion of property of public dominion intended for
some public service, into property of the private domain of the Republic, it should be
noted that the Civil Code does not address the question of who has authority to effect
such conversion. Neither does the Civil Code set out or refer to any procedure for such
conversion.
Our case law, however, contains some fairly explicit pronouncements on this point, as
Justice Sarmiento has pointed out in his concurring opinion. In Ignacio v. Director of
Lands (108 Phils. 335 [1960]), petitioner Ignacio argued that if the land in question
formed part of the public domain, the trial court should have declared the same no
longer necessary for public use or public purposes and which would, therefore, have
become disposable and available for private ownership. Mr. Justice Montemayor,
speaking for the Court, said:

Article 4 of the Law of Waters of 1866 provides that when a portion of the shore is no
longer washed by the waters of the sea and is not necessary for purposes of public
utility, or for the establishment of special industries, or for coast-guard service, the
government shall declare it to be the property of the owners of the estates adjacent
thereto and as an increment thereof. We believe that only the executive and possibly
the legislative departments have the authority and the power to make the
declaration that any land so gained by the sea, is not necessary for purposes of public
utility, or for the establishment of special industries, or for coast-guard service. If no
such declaration has been made by said departments, the lot in question forms part of
the public domain. (Natividad v. Director of Lands, supra.)

The reason for this pronouncement, according to this Tribunal in the case of Vicente
Joven y Monteverde v. Director of Lands, 93 Phil., 134 (cited in Velayo's Digest, Vol. 1,
p. 52).

... is undoubtedly that the courts are neither primarily called upon, nor indeed in a
position to determine whether any public land are to be used for the purposes
specified in Article 4 of the Law of Waters. Consequently, until a formal declaration on
the part of the Government, through the executive department or the Legislature, to the
effect that the land in question is no longer needed for coast-guard service, for public
use or for special industries, they continue to be part of the public domain not available
for private appropriation or ownership.(108 Phil. at 338-339; emphasis supplied)

Thus, under Ignacio, either the Executive Department or the Legislative

Department may convert property of the State of public dominion into patrimonial
property of the State. No particular formula or procedure of conversion is specified
either in statute law or in case law. Article 422 of the Civil Code simply states that:
"Property of public dominion, when no longer intended for public use or for public
service, shall form part of the patrimonial property of the State". I respectfully submit,
therefore, that the only requirement which is legitimately imposable is that the intent to
convert must be reasonably clear from a consideration of the acts or acts of the
Executive Department or of the Legislative Department which are said to have effected
such conversion.

The same legal situation exists in respect of conversion of property of public dominion
belonging to municipal corporations, i.e., local governmental units, into patrimonial
property of such entities. In CebuOxygen Acetylene v. Bercilles (66 SCRA 481 [1975]),
the City Council of Cebu by resolution declared a certain portion of an existing street
as an abandoned road, "the same not being included in the city development plan".
Subsequently, by another resolution, the City Council of Cebu authorized the acting
City Mayor to sell the land through public bidding. Although there was no formal and
explicit declaration of conversion of property for public use into patrimonial
property, the Supreme Court said:
xxx xxx xxx

(2) Since that portion of the city street subject of petitioner's application for
registration of title was withdrawn from public use, it follows that such withdrawn
portion becomes patrimonial property which can be the object of an ordinary contract.

Article 422 of the Civil Code expressly provides that "Property of public dominion,
when no longer intended for public use of for public service, shall form part of the
patrimonial property of the State."

Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear and
unequivocal terms, states that "Property thus withdrawn from public servitude may be
used or conveyed for any purpose for which other real property belonging to the City
may be lawfully used or conveyed."

Accordingly, the withdrawal of the property in question from public use and its
subsequent sale to the petitioner is valid. Hence, the petitioner has a registrable title
over the lot in question. (66 SCRA at 484-; emphasis supplied)

Thus, again as pointed out by Sarmiento J., in his separate opinion, in the case of
property owned by municipal corporations simple non-use or the actual dedication of
public property to some use other than "public use" or some "public service", was
sufficient legally to convert such property into patrimonial property (Municipality of
Oas v. Roa, 7 Phil. 20 [1906]- Municipality of Hinunganan v. Director of Lands 24 Phil.
124 [1913]; Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334
(1968).

I would also add that such was the case not only in respect of' property of municipal
corporations but also in respect of property of the State itself. Manresa in commenting
on Article 341 of the 1889 Spanish Civil Code which has been carried
over verbatim into our Civil Code by Article 422 thereof, wrote:

La dificultad mayor en todo esto estriba, naturalmente, en fijar el momento en que los
bienes de dominio publico dejan de serlo. Si la Administracion o la autoridad
competente legislative realizan qun acto en virtud del cual cesa el destino o uso
publico de los bienes de que se trata naturalmente la dificultad queda desde el primer
momento resuelta. Hay un punto de partida cierto para iniciar las relaciones juridicas a
que pudiera haber lugar Pero puede ocurrir que no haya taldeclaracion expresa,
legislativa or administrativa, y, sin embargo, cesar de hecho el destino publico de los
bienes; ahora bien, en este caso, y para los efectos juridicos que resultan de entrar la
cosa en el comercio de los hombres,' se entedera que se ha verificado la conversion
de los bienes patrimoniales?

El citado tratadista Ricci opina, respecto del antiguo Codigo italiano, por la afirmativa,
y por nuestra parte creemos que tal debe ser la soluciion. El destino de las cosas no
depende tanto de una declaracion expresa como del uso publico de las mismas, y
cuanda el uso publico cese con respecto de determinados bienes, cesa tambien su
situacion en el dominio publico. Si una fortaleza en ruina se abandona y no se repara,
si un trozo de la via publica se abandona tambien por constituir otro nuevo an mejores
condiciones....ambos bienes cesan de estar Codigo, y leyes especiales mas o memos
administrativas. (3 Manresa, Comentarios al Codigo Civil Espanol, p. 128 [7a ed.; 1952)
(Emphasis supplied)
The majority opinion says that none of the executive acts pointed to by the
Government purported, expressly or definitely, to convert the Roppongi property into
patrimonial property of the Republic. Assuming that to be the case, it is respectfully
submitted that cumulative effect of the executive acts here involved was to convert
property originally intended for and devoted to public service into patrimonial property
of the State, that is, property susceptible of disposition to and appropration by private
persons. These executive acts, in their totality if not each individual act, make crystal
clear the intent of the Executive Department to effect such conversion. These
executive acts include:

(a) Administrative Order No. 3 dated 11 August 1985, which created a Committee to
study the disposition/utilization of the Government's property in Japan, The Committee
was composed of officials of the Executive Department: the Executive Secretary; the
Philippine Ambassador to Japan; and representatives of the Department of Foreign
Affairs and the Asset Privatization Trust. On 19 September 1988, the Committee
recommended to the President the sale of one of the lots (the lot specifically in
Roppongi) through public bidding. On 4 October 1988, the President approved the
recommendation of the Committee.

On 14 December 1988, the Philippine Government by diplomatic note informed the

Japanese Ministry of Foreign Affairs of the Republic's intention to dispose of the
property in Roppongi. The Japanese Government through its Ministry of Foreign
Affairs replied that it interposed no objection to such disposition by the Republic.
Subsequently, the President and the Committee informed the leaders of the House of
Representatives and of the Senate of the Philippines of the proposed disposition of the
Roppongi property.

(b) Executive Order No. 296, which was issued by the President on 25 July 1987.
Assuming that the majority opinion is right in saying that Executive Order No. 296 is
insufficient to authorize the sale of the Roppongi property, it is here submitted with
respect that Executive Order No. 296 is more than sufficient to indicate an intention to
convert the property previously devoted to public service into patrimonial property
that is capable of being sold or otherwise disposed of

(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or for any other
public purposes. Assuming (but only arguendo) that non-use does not, by itself,
automatically convert the property into patrimonial property. I respectfully urge that
prolonged non-use, conjoined with the other factors here listed, was legally effective to
convert the lot in Roppongi into patrimonial property of the State. Actually, as already
pointed out, case law involving property of municipal corporations is to the effect that
simple non-use or the actual dedication of public property to some use other than
public use or public service, was sufficient to convert such property into patrimonial
property of the local governmental entity concerned. Also as pointed out above,
Manresa reached the same conclusion in respect of conversion of property of the
public domain of the State into property of the private domain of the State.

The majority opinion states that "abandonment cannot be inferred from the non-use
alone especially if the non-use was attributable not to the Government's own deliberate
and indubitable will but to lack of financial support to repair and improve the property"
(Majority Opinion, p. 13). With respect, it may be stressed that there is no abandonment
involved here, certainly no abandonment of property or of property rights. What is
involved is the charge of the classification of the property from property of the public
domain into property of the private domain of the State. Moreover, if for fourteen (14)
years, the Government did not see fit to appropriate whatever funds were necessary to
maintain the property in Roppongi in a condition suitable for diplomatic representation
purposes, such circumstance may, with equal logic, be construed as a manifestation of
the crystalizing intent to change the character of the property.

(d) On 30 March 1989, a public bidding was in fact held by the Executive Department for
the sale of the lot in Roppongi. The circumstance that this bidding was not successful
certainly does not argue against an intent to convert the property involved into
property that is disposable by bidding.

The above set of events and circumstances makes no sense at all if it does not, as a
whole, show at least the intent on the part of the Executive Department (with the
knowledge of the Legislative Department) to convert the property involved into
patrimonial property that is susceptible of being sold.

II

Having reached an affirmative answer in respect of the first issue, it is necessary to

address the second issue of whether or not there exists legal authority for the sale or
disposition of the Roppongi property.

The majority opinion refers to Section 79(f) of the Revised Administrative Code of 1917
which reads as follows:

SEC. 79 (f). Conveyances and contracts to which the Government is a party. In cases
in which the Government of the Republic of the Philippines is a party to any deed or
other instrument conveying the title to real estate or to any other property the value of
which is in excess of one hundred thousand pesos, the respective Department
Secretary shall prepare the necessary papers which, together with the proper
recommendations, shall be submitted to the Congress of the Philippines for approval
by the same. Such deed, instrument, or contract shall be executed and signed by the
President of the Philippines on behalf of the Government of the Philippines unless the
authority therefor be expressly vested by law in another officer. (Emphasis supplied)

The majority opinion then goes on to state that: "[T]he requirement has been
retained in Section 4, Book I of the Administrative Code of 1987 (Executive Order No.
292)" which reads:

SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines,
by the President, unless the authority therefor is expressly vested by law in another
officer.

(2) For property belonging to the Republic of the Philippines but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)
Two points need to be made in this connection. Firstly, the requirement of obtaining
specific approval of Congress when the price of the real property being disposed of is
in excess of One Hundred Thousand Pesos (P100,000.00) under the Revised
Administrative Code of 1917, has been deleted from Section 48 of the 1987
Administrative Code. What Section 48 of the present Administrative Code refers to
isauthorization by law for the conveyance. Section 48 does not purport to be itself a
source of legal authority for conveyance of real property of the Government. For
Section 48 merely specifies the official authorized to execute and sign on behalf of the
Government the deed of conveyance in case of such a conveyance.

Secondly, examination of our statute books shows that authorization by law for
disposition of real property of the private domain of the Government, has been granted
by Congress both in the form of (a) a general, standing authorization for disposition of
patrimonial property of the Government; and (b) specific legislation authorizing the
disposition of particular pieces of the Government's patrimonial property.

Standing legislative authority for the disposition of land of the private domain of the
Philippines is provided by Act No. 3038, entitled "An Act Authorizing the Secretary of
Agriculture and Natural Resources to Sell or Lease Land of the Private Domain of the
Government of the Philippine Islands (now Republic of the Philippines)", enacted on 9
March 1922. The full text of this statute is as follows:

Be it enacted by the Senate and House of Representatives of the Philippines in

Legislature assembled and by the authority of the same:

SECTION 1. The Secretary of Agriculture and Natural Resources (now Secretary of the
Environment and Natural Resources) is hereby authorized to sell or lease land of the
private domain of the Government of the Philippine Islands, or any part thereof, to such
persons, corporations or associations as are, under the provisions of Act Numbered
Twenty-eight hundred and seventy-four, (now Commonwealth Act No. 141, as amended)
known as the Public Land Act, entitled to apply for the purchase or lease or agricultural
public land.

SECTION 2. The sale of the land referred to in the preceding section shall, if such land
is agricultural, be made in the manner and subject to the limitations prescribed in
chapters five and six, respectively, of said Public Land Act, and if it be classified
differently, in conformity with the provisions of chapter nine of said Act: Provided,
however, That the land necessary for the public service shall be exempt from the
provisions of this Act.

SECTION 3. This Act shall take effect on its approval.

Approved, March 9, 1922. (Emphasis supplied)

Lest it be assumed that Act No. 3038 refers only to agricultural lands of the private
domain of the State, it must be noted that Chapter 9 of the old Public Land Act (Act No.
2874) is now Chapter 9 of the present Public Land Act (Commonwealth Act No. 141, as
amended) and that both statutes refer to: "any tract of land of the public domain which
being neither timber nor mineral land, is intended to be used forresidential purposes or
for commercial or industrial purposes other than agricultural" (Emphasis supplied). In
it c-a sl

other words, the statute covers the sale or lease or residential, commercial or
industrial land of the private domain of the State.
Implementing regulations have been issued for the carrying out of the provisions of
Act No. 3038. On 21 December 1954, the then Secretary of Agriculture and Natural
Resources promulgated Lands Administrative Orders Nos. 7-6 and 7-7 which were
entitled, respectively: "Supplementary Regulations Governing the Sale of the Lands of
the Private Domain of the Republic of the Philippines"; and "Supplementary
Regulations Governing the Lease of Lands of Private Domain of the Republic of the
Philippines" (text in 51 O.G. 28-29 [1955]).

It is perhaps well to add that Act No. 3038, although now sixty-eight (68) years old, is
still in effect and has not been repealed. 1

Specific legislative authorization for disposition of particular patrimonial properties of

the State is illustrated by certain earlier statutes. The first of these was Act No. 1120,
enacted on 26 April 1904, which provided for the disposition of the friar lands,
purchased by the Government from the Roman Catholic Church, to bona fide settlers
and occupants thereof or to other persons. In Jacinto v. Director of Lands(49 Phil. 853
[1926]), these friar lands were held to be private and patrimonial properties of the State.
Act No. 2360, enacted on -28 February 1914, authorized the sale of the San Lazaro
Estate located in the City of Manila, which had also been purchased by the Government
from the Roman Catholic Church. In January 1916, Act No. 2555 amended Act No. 2360
by including therein all lands and buildings owned by the Hospital and the Foundation
of San Lazaro theretofor leased by private persons, and which were also acquired by
the Philippine Government.

After the enactment in 1922 of Act No. 3038, there appears, to my knowledge, to be only
one statute authorizing the President to dispose of a specific piece of property. This
statute is Republic Act No. 905, enacted on 20 June 1953, which authorized the

President to sell an Identified parcel of land of the private domain of the National
Government to the National Press Club of the Philippines, and to other recognized
national associations of professionals with academic standing, for the nominal price of
P1.00. It appears relevant to note that Republic Act No. 905 was not an outright
disposition in perpetuity of the property involved- it provided for reversion of the
property to the National Government in case the National Press Club stopped using it
for its headquarters. What Republic Act No. 905 authorized was really a donation, and
not a sale.

The basic submission here made is that Act No. 3038 provides standing legislative
authorization for disposition of the Roppongi property which, in my view, has been
converted into patrimonial property of the Republic. 2

To some, the submission that Act No. 3038 applies not only to lands of the private
domain of the State located in the Philippines but also to patrimonial property found
outside the Philippines, may appear strange or unusual. I respectfully submit that such
position is not any more unusual or strange than the assumption that Article 420 of the
Civil Code applies not only to property of the Republic located within Philippine
territory but also to property found outside the boundaries of the Republic.

It remains to note that under the well-settled doctrine that heads of Executive
Departments are alter egosof the President (Villena v. Secretary of the Interior, 67 Phil.
451 [1939]), and in view of the constitutional power of control exercised by the
President over department heads (Article VII, Section 17,1987 Constitution), the
President herself may carry out the function or duty that is specifically lodged in the
Secretary of the Department of Environment and Natural Resources (Araneta v.
Gatmaitan 101 Phil. 328 [1957]). At the very least, the President retains the power to
approve or disapprove the exercise of that function or duty when done by the
Secretary of Environment and Natural Resources.

It is hardly necessary to add that the foregoing analyses and submissions relate only
to the austere question of existence of legal power or authority. They have nothing to
do with much debated questions of wisdom or propriety or relative desirability either of
the proposed disposition itself or of the proposed utilization of the anticipated
proceeds of the property involved. These latter types of considerations He within the
sphere of responsibility of the political departments of government the Executive and
the Legislative authorities.

For all the foregoing, I vote to dismiss the Petitions for Prohibition in both G.R. Nos.
92013 and 92047.

Fernan, C.J., Narvasa, Gancayco, Cortes and Medialdea, JJ., concurring.

Separate Opinions

CRUZ, J., concurring:

I concur completely with the excellent ponencia of Mr. Justice Gutierrez and will add
the following observations only for emphasis.

It is clear that the respondents have failed to show the President's legal authority to
sell the Roppongi property. When asked to do so at the hearing on these petitions, the
Solicitor General was at best ambiguous, although I must add in fairness that this was
not his fault. The fact is that there is -no such authority. Legal expertise alone cannot
conjure that statutory permission out of thin air.

Exec. Order No. 296, which reads like so much legislative, double talk, does not
contain such authority. Neither does Rep. Act No. 6657, which simply allows the
proceeds of the sale of our properties abroad to be used for the comprehensive
agrarian reform program. Senate Res. No. 55 was a mere request for the deferment of
the scheduled sale of tile Roppongi property, possibly to stop the transaction
altogether; and ill any case it is not a law. The sale of the said property may be
authorized only by Congress through a duly enacted statute, and there is no such law.

Once again, we have affirmed the principle that ours is a government of laws and not of
men, where every public official, from the lowest to the highest, can act only by virtue
of a valid authorization. I am happy to note that in the several cases where this Court
has ruled against her, the President of the Philippines has submitted to this principle
with becoming grace.
PADILLA, J., concurring:

I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only wish to make a few
observations which could help in further clarifying the issues.

Under our tripartite system of government ordained by the Constitution, it is Congress

that lays down or determines policies. The President executes such policies. The
policies determined by Congress are embodied in legislative enactments that have to
be approved by the President to become law. The President, of course, recommends to
Congress the approval of policies but, in the final analysis, it is Congress that is the
policy - determining branch of government.

The judiciary interprets the laws and, in appropriate cases, determines whether the
laws enacted by Congress and approved by the President, and presidential acts
implementing such laws, are in accordance with the Constitution.

The Roppongi property was acquired by the Philippine government pursuant to the
reparations agreement between the Philippine and Japanese governments. Under such
agreement, this property was acquired by the Philippine government for a specific
purpose, namely, to serve as the site of the Philippine Embassy in Tokyo, Japan.
Consequently, Roppongi is a property of public dominion and intended for public
service, squarely falling within that class of property under Art. 420 of the Civil Code,
which provides:

Art. 420. The following things are property of public dominion :

(1) ...

(2) Those which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth. (339a)

Public dominion property intended for public service cannot be alienated unless the
property is first transformed into private property of the state otherwise known as
patrimonial property of the state. 1 The transformation of public dominion property to
state patrimonial property involves, to my mind, a policy decision. It is a policy decision
because the treatment of the property varies according to its classification. Consequently,
it is Congress which can decide and declare the conversion of Roppongi from a public
dominion property to a state patrimonial property. Congress has made no such decision or
declaration.

Moreover, the sale of public property (once converted from public dominion to state
patrimonial property) must be approved by Congress, for this again is a matter of
policy (i.e. to keep or dispose of the property). Sec. 48, Book 1 of the Administrative
Code of 1987 provides:

SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines,
by the President, unless the authority therefor is expressly vested by law in another
officer.
(2) For property belonging to the Republic of the Philippines but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)

But the record is bare of any congressional decision or approval to sell Roppongi. The
record is likewise bare of any congressional authority extended to the President to sell
Roppongi thru public bidding or otherwise.

It is therefore, clear that the President cannot sell or order the sale of Roppongi thru
public bidding or otherwise without a prior congressional approval, first, converting
Roppongi from a public dominion property to a state patrimonial property, and, second,
authorizing the President to sell the same.

ACCORDINGLY, my vote is to GRANT the petition and to make PERMANENT the

temporary restraining order earlier issued by this Court.

SARMIENTO, J., concurring:

The central question, as I see it, is whether or not the so-called "Roppongi property'
has lost its nature as property of public dominion, and hence, has become patrimonial
property of the State. I understand that the parties are agreed that it was property
intended for "public service" within the contemplation of paragraph (2), of Article 430,
of the Civil Code, and accordingly, land of State dominion, and beyond human
commerce. The lone issue is, in the light of supervening developments, that is
non-user thereof by the National Government (for diplomatic purposes) for the last
thirteen years; the issuance of Executive Order No. 296 making it available for sale to
any interested buyer; the promulgation of Republic Act No. 6657, the Comprehensive
Agrarian Reform Law, making available for the program's financing, State assets sold;
the approval by the President of the recommendation of the investigating committee
formed to study the property's utilization; and the issuance of Resolution No. 55 of the
Philippine Senate requesting for the deferment of its disposition it, "Roppongi", is still
property of the public dominion, and if it is not, how it lost that character.

When land of the public dominion ceases to be one, or when the change takes place, is
a question our courts have debated early. In a 1906 decision, 1 it was held that property
of the public dominion, a public plaza in this instance, becomes patrimonial upon use
thereof for purposes other than a plaza. In a later case, 2 this ruling was reiterated. Likewise,
it has been held that land, originally private property, has become of public dominion upon
its donation to the town and its conversion and use as a public plaza. 3 It is notable that
under these three cases, the character of the property, and any change occurring therein,
depends on the actual use to which it is dedicated. 4

Much later, however, the Court held that "until a formal declaration on the part of the
Government, through the executive department or the Legislative, to the effect that the
land . . . is no longer needed for [public] service- for public use or for special industries,
[it] continue[s] to be part of the public [dominion], not available for private
expropriation or ownership." 5 So also, it was ruled that a political subdivision (the City of
Cebu in this case) alone may declare (under its charter) a city road abandoned and
thereafter, to dispose of it. 6
In holding that there is "a need for a law or formal declaration to withdraw the
Roppongi property from public domain to make it alienable and a land for legislative
authority to allow the sale of the property" 7the majority lays stress to the fact that: (1) An
affirmative act executive or legislative is necessary to reclassify property of the public
dominion, and (2) a legislative decree is required to make it alienable. It also clears the
uncertainties brought about by earlier interpretations that the nature of property-whether
public or patrimonial is predicated on the manner it is actually used, or not used, and in the
same breath, repudiates the Government's position that the continuous non-use of
"Roppongi", among other arguments, for "diplomatic purposes", has turned it into State
patrimonial property.

I feel that this view corresponds to existing pronouncements of this Court, among
other things, that: (1) Property is presumed to be State property in the absence of any
showing to the contrary; 8 (2) With respect to forest lands, the same continue to be lands
of the public dominion unless and until reclassified by the Executive Branch of the
Government; 9 and (3) All natural resources, under the Constitution, and subject to
exceptional cases, belong to the State. 10

I am elated that the Court has banished previous uncertainties.

FELICIANO, J., dissenting

With regret, I find myself unable to share the conclusions reached by Mr. Justice Hugo
E. Gutierrez, Jr.

For purposes of this separate opinion, I assume that the piece of land located in 306
Roppongi, 5-Chome, Minato-ku Tokyo, Japan (hereinafter referred to as the "Roppongi
property") may be characterized as property of public dominion, within the meaning of
Article 420 (2) of the Civil Code:

[Property] which belong[s] to the State, without being for public use, and are intended
for some public service -.

It might not be amiss however, to note that the appropriateness of trying to bring within
the confines of the simple threefold classification found in Article 420 of the Civil Code
("property for public use property "intended for some public service" and property
intended "for the development of the national wealth") all property owned by the
Republic of the Philippines whether found within the territorial boundaries of the
Republic or located within the territory of another sovereign State, is not self-evident.
The first item of the classification property intended for public use can scarcely be
properly applied to property belonging to the Republic but found within the territory of
another State. The third item of the classification property intended for the
development of the national wealth is illustrated, in Article 339 of the Spanish Civil
Code of 1889, by mines or mineral properties. Again, mineral lands owned by a
sovereign State are rarely, if ever, found within the territorial base of another sovereign
State. The task of examining in detail the applicability of the classification set out in
Article 420 of our Civil Code to property that the Philippines happens to own outside its
own boundaries must, however, be left to academicians.
For present purposes, too, I agree that there is no question of conflict of laws that is, at
the present time, before this Court. The issues before us relate essentially to authority
to sell the Roppongi property so far as Philippine law is concerned.

The majority opinion raises two (2) issues: (a) whether or not the Roppongi property
has been converted into patrimonial property or property of the private domain of the
State; and (b) assuming an affirmative answer to (a), whether or not there is legal
authority to dispose of the Roppongi property.

Addressing the first issue of conversion of property of public dominion intended for
some public service, into property of the private domain of the Republic, it should be
noted that the Civil Code does not address the question of who has authority to effect
such conversion. Neither does the Civil Code set out or refer to any procedure for such
conversion.

Our case law, however, contains some fairly explicit pronouncements on this point, as
Justice Sarmiento has pointed out in his concurring opinion. In Ignacio v. Director of
Lands (108 Phils. 335 [1960]), petitioner Ignacio argued that if the land in question
formed part of the public domain, the trial court should have declared the same no
longer necessary for public use or public purposes and which would, therefore, have
become disposable and available for private ownership. Mr. Justice Montemayor,
speaking for the Court, said:

Article 4 of the Law of Waters of 1866 provides that when a portion of the shore is no
longer washed by the waters of the sea and is not necessary for purposes of public
utility, or for the establishment of special industries, or for coast-guard service, the
government shall declare it to be the property of the owners of the estates adjacent
thereto and as an increment thereof. We believe that only the executive and possibly
the legislative departments have the authority and the power to make the
declaration that any land so gained by the sea, is not necessary for purposes of public
utility, or for the establishment of special industries, or for coast-guard service. If no
such declaration has been made by said departments, the lot in question forms part of
the public domain. (Natividad v. Director of Lands, supra.)

The reason for this pronouncement, according to this Tribunal in the case of Vicente
Joven y Monteverde v. Director of Lands, 93 Phil., 134 (cited in Velayo's Digest, Vol. 1,
p. 52).

... is undoubtedly that the courts are neither primarily called upon, nor indeed in a
position to determine whether any public land are to be used for the purposes
specified in Article 4 of the Law of Waters. Consequently, until a formal declaration on
the part of the Government, through the executive department or the Legislature, to the
effect that the land in question is no longer needed for coast-guard service, for public
use or for special industries, they continue to be part of the public domain not available
for private appropriation or ownership.(108 Phil. at 338-339; emphasis supplied)

Thus, under Ignacio, either the Executive Department or the Legislative

Department may convert property of the State of public dominion into patrimonial
property of the State. No particular formula or procedure of conversion is specified
either in statute law or in case law. Article 422 of the Civil Code simply states that:
"Property of public dominion, when no longer intended for public use or for public
service, shall form part of the patrimonial property of the State". I respectfully submit,
therefore, that the only requirement which is legitimately imposable is that the intent to
convert must be reasonably clear from a consideration of the acts or acts of the
Executive Department or of the Legislative Department which are said to have effected
such conversion.

The same legal situation exists in respect of conversion of property of public dominion
belonging to municipal corporations, i.e., local governmental units, into patrimonial
property of such entities. In CebuOxygen Acetylene v. Bercilles (66 SCRA 481 [1975]),
the City Council of Cebu by resolution declared a certain portion of an existing street
as an abandoned road, "the same not being included in the city development plan".
Subsequently, by another resolution, the City Council of Cebu authorized the acting
City Mayor to sell the land through public bidding. Although there was no formal and
explicit declaration of conversion of property for public use into patrimonial
property, the Supreme Court said:

xxx xxx xxx

(2) Since that portion of the city street subject of petitioner's application for
registration of title was withdrawn from public use, it follows that such withdrawn
portion becomes patrimonial property which can be the object of an ordinary contract.

Article 422 of the Civil Code expressly provides that "Property of public dominion,
when no longer intended for public use of for public service, shall form part of the
patrimonial property of the State."

Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear and
unequivocal terms, states that "Property thus withdrawn from public servitude may be
used or conveyed for any purpose for which other real property belonging to the City
may be lawfully used or conveyed."

Accordingly, the withdrawal of the property in question from public use and its
subsequent sale to the petitioner is valid. Hence, the petitioner has a registrable title
over the lot in question. (66 SCRA at 484-; emphasis supplied)

Thus, again as pointed out by Sarmiento J., in his separate opinion, in the case of
property owned by municipal corporations simple non-use or the actual dedication of
public property to some use other than "public use" or some "public service", was
sufficient legally to convert such property into patrimonial property (Municipality of
Oas v. Roa, 7 Phil. 20 [1906]- Municipality of Hinunganan v. Director of Lands 24 Phil.
124 [1913]; Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334
(1968).

I would also add that such was the case not only in respect of' property of municipal
corporations but also in respect of property of the State itself. Manresa in commenting
on Article 341 of the 1889 Spanish Civil Code which has been carried
over verbatim into our Civil Code by Article 422 thereof, wrote:

La dificultad mayor en todo esto estriba, naturalmente, en fijar el momento en que los
bienes de dominio publico dejan de serlo. Si la Administracion o la autoridad
competente legislative realizan qun acto en virtud del cual cesa el destino o uso
publico de los bienes de que se trata naturalmente la dificultad queda desde el primer
momento resuelta. Hay un punto de partida cierto para iniciar las relaciones juridicas a
que pudiera haber lugar Pero puede ocurrir que no haya taldeclaracion expresa,
legislativa or administrativa, y, sin embargo, cesar de hecho el destino publico de los
bienes; ahora bien, en este caso, y para los efectos juridicos que resultan de entrar la
cosa en el comercio de los hombres,' se entedera que se ha verificado la conversion
de los bienes patrimoniales?

El citado tratadista Ricci opina, respecto del antiguo Codigo italiano, por la afirmativa,
y por nuestra parte creemos que tal debe ser la soluciion. El destino de las cosas no
depende tanto de una declaracion expresa como del uso publico de las mismas, y
cuanda el uso publico cese con respecto de determinados bienes, cesa tambien su
situacion en el dominio publico. Si una fortaleza en ruina se abandona y no se repara,
si un trozo de la via publica se abandona tambien por constituir otro nuevo an mejores
condiciones....ambos bienes cesan de estar Codigo, y leyes especiales mas o memos
administrativas. (3 Manresa, Comentarios al Codigo Civil Espanol, p. 128 [7a ed.; 1952)
(Emphasis supplied)

The majority opinion says that none of the executive acts pointed to by the
Government purported, expressly or definitely, to convert the Roppongi property into
patrimonial property of the Republic. Assuming that to be the case, it is respectfully
submitted that cumulative effect of the executive acts here involved was to convert
property originally intended for and devoted to public service into patrimonial property
of the State, that is, property susceptible of disposition to and appropration by private
persons. These executive acts, in their totality if not each individual act, make crystal
clear the intent of the Executive Department to effect such conversion. These
executive acts include:

(a) Administrative Order No. 3 dated 11 August 1985, which created a Committee to
study the disposition/utilization of the Government's property in Japan, The Committee
was composed of officials of the Executive Department: the Executive Secretary; the
Philippine Ambassador to Japan; and representatives of the Department of Foreign
Affairs and the Asset Privatization Trust. On 19 September 1988, the Committee
recommended to the President the sale of one of the lots (the lot specifically in
Roppongi) through public bidding. On 4 October 1988, the President approved the
recommendation of the Committee.

On 14 December 1988, the Philippine Government by diplomatic note informed the

Japanese Ministry of Foreign Affairs of the Republic's intention to dispose of the
property in Roppongi. The Japanese Government through its Ministry of Foreign
Affairs replied that it interposed no objection to such disposition by the Republic.
Subsequently, the President and the Committee informed the leaders of the House of
Representatives and of the Senate of the Philippines of the proposed disposition of the
Roppongi property.

(b) Executive Order No. 296, which was issued by the President on 25 July 1987.
Assuming that the majority opinion is right in saying that Executive Order No. 296 is
insufficient to authorize the sale of the Roppongi property, it is here submitted with
respect that Executive Order No. 296 is more than sufficient to indicate an intention to
convert the property previously devoted to public service into patrimonial property
that is capable of being sold or otherwise disposed of
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or for any other
public purposes. Assuming (but only arguendo) that non-use does not, by itself,
automatically convert the property into patrimonial property. I respectfully urge that
prolonged non-use, conjoined with the other factors here listed, was legally effective to
convert the lot in Roppongi into patrimonial property of the State. Actually, as already
pointed out, case law involving property of municipal corporations is to the effect that
simple non-use or the actual dedication of public property to some use other than
public use or public service, was sufficient to convert such property into patrimonial
property of the local governmental entity concerned. Also as pointed out above,
Manresa reached the same conclusion in respect of conversion of property of the
public domain of the State into property of the private domain of the State.

The majority opinion states that "abandonment cannot be inferred from the non-use
alone especially if the non-use was attributable not to the Government's own deliberate
and indubitable will but to lack of financial support to repair and improve the property"
(Majority Opinion, p. 13). With respect, it may be stressed that there is no abandonment
involved here, certainly no abandonment of property or of property rights. What is
involved is the charge of the classification of the property from property of the public
domain into property of the private domain of the State. Moreover, if for fourteen (14)
years, the Government did not see fit to appropriate whatever funds were necessary to
maintain the property in Roppongi in a condition suitable for diplomatic representation
purposes, such circumstance may, with equal logic, be construed as a manifestation of
the crystalizing intent to change the character of the property.

(d) On 30 March 1989, a public bidding was in fact held by the Executive Department for
the sale of the lot in Roppongi. The circumstance that this bidding was not successful
certainly does not argue against an intent to convert the property involved into
property that is disposable by bidding.

The above set of events and circumstances makes no sense at all if it does not, as a
whole, show at least the intent on the part of the Executive Department (with the
knowledge of the Legislative Department) to convert the property involved into
patrimonial property that is susceptible of being sold.

II

Having reached an affirmative answer in respect of the first issue, it is necessary to

address the second issue of whether or not there exists legal authority for the sale or
disposition of the Roppongi property.

The majority opinion refers to Section 79(f) of the Revised Administrative Code of 1917
which reads as follows:

SEC. 79 (f). Conveyances and contracts to which the Government is a party. In cases
in which the Government of the Republic of the Philippines is a party to any deed or
other instrument conveying the title to real estate or to any other property the value of
which is in excess of one hundred thousand pesos, the respective Department
Secretary shall prepare the necessary papers which, together with the proper
recommendations, shall be submitted to the Congress of the Philippines for approval
by the same. Such deed, instrument, or contract shall be executed and signed by the
President of the Philippines on behalf of the Government of the Philippines unless the
authority therefor be expressly vested by law in another officer. (Emphasis supplied)
The majority opinion then goes on to state that: "[T]he requirement has been
retained in Section 4, Book I of the Administrative Code of 1987 (Executive Order No.
292)" which reads:

SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines,
by the President, unless the authority therefor is expressly vested by law in another
officer.

(2) For property belonging to the Republic of the Philippines but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)

Two points need to be made in this connection. Firstly, the requirement of obtaining
specific approval of Congress when the price of the real property being disposed of is
in excess of One Hundred Thousand Pesos (P100,000.00) under the Revised
Administrative Code of 1917, has been deleted from Section 48 of the 1987
Administrative Code. What Section 48 of the present Administrative Code refers to
isauthorization by law for the conveyance. Section 48 does not purport to be itself a
source of legal authority for conveyance of real property of the Government. For
Section 48 merely specifies the official authorized to execute and sign on behalf of the
Government the deed of conveyance in case of such a conveyance.

Secondly, examination of our statute books shows that authorization by law for
disposition of real property of the private domain of the Government, has been granted
by Congress both in the form of (a) a general, standing authorization for disposition of
patrimonial property of the Government; and (b) specific legislation authorizing the
disposition of particular pieces of the Government's patrimonial property.

Standing legislative authority for the disposition of land of the private domain of the
Philippines is provided by Act No. 3038, entitled "An Act Authorizing the Secretary of
Agriculture and Natural Resources to Sell or Lease Land of the Private Domain of the
Government of the Philippine Islands (now Republic of the Philippines)", enacted on 9
March 1922. The full text of this statute is as follows:

Be it enacted by the Senate and House of Representatives of the Philippines in

Legislature assembled and by the authority of the same:

SECTION 1. The Secretary of Agriculture and Natural Resources (now Secretary of the
Environment and Natural Resources) is hereby authorized to sell or lease land of the
private domain of the Government of the Philippine Islands, or any part thereof, to such
persons, corporations or associations as are, under the provisions of Act Numbered
Twenty-eight hundred and seventy-four, (now Commonwealth Act No. 141, as amended)
known as the Public Land Act, entitled to apply for the purchase or lease or agricultural
public land.

SECTION 2. The sale of the land referred to in the preceding section shall, if such land
is agricultural, be made in the manner and subject to the limitations prescribed in
chapters five and six, respectively, of said Public Land Act, and if it be classified
differently, in conformity with the provisions of chapter nine of said Act: Provided,
however, That the land necessary for the public service shall be exempt from the
provisions of this Act.

SECTION 3. This Act shall take effect on its approval.

Approved, March 9, 1922. (Emphasis supplied)

Lest it be assumed that Act No. 3038 refers only to agricultural lands of the private
domain of the State, it must be noted that Chapter 9 of the old Public Land Act (Act No.
2874) is now Chapter 9 of the present Public Land Act (Commonwealth Act No. 141, as
amended) and that both statutes refer to: "any tract of land of the public domain which
being neither timber nor mineral land, is intended to be used forresidential purposes or
for commercial or industrial purposes other than agricultural" (Emphasis supplied). In
other words, the statute covers the sale or lease or residential, commercial or
industrial land of the private domain of the State.

Implementing regulations have been issued for the carrying out of the provisions of
Act No. 3038. On 21 December 1954, the then Secretary of Agriculture and Natural
Resources promulgated Lands Administrative Orders Nos. 7-6 and 7-7 which were
entitled, respectively: "Supplementary Regulations Governing the Sale of the Lands of
the Private Domain of the Republic of the Philippines"; and "Supplementary
Regulations Governing the Lease of Lands of Private Domain of the Republic of the
Philippines" (text in 51 O.G. 28-29 [1955]).

It is perhaps well to add that Act No. 3038, although now sixty-eight (68) years old, is
still in effect and has not been repealed. 1

Specific legislative authorization for disposition of particular patrimonial properties of

the State is illustrated by certain earlier statutes. The first of these was Act No. 1120,
enacted on 26 April 1904, which provided for the disposition of the friar lands,
purchased by the Government from the Roman Catholic Church, to bona fide settlers
and occupants thereof or to other persons. In Jacinto v. Director of Lands(49 Phil. 853
[1926]), these friar lands were held to be private and patrimonial properties of the State.
Act No. 2360, enacted on -28 February 1914, authorized the sale of the San Lazaro
Estate located in the City of Manila, which had also been purchased by the Government
from the Roman Catholic Church. In January 1916, Act No. 2555 amended Act No. 2360
by including therein all lands and buildings owned by the Hospital and the Foundation
of San Lazaro theretofor leased by private persons, and which were also acquired by
the Philippine Government.

After the enactment in 1922 of Act No. 3038, there appears, to my knowledge, to be only
one statute authorizing the President to dispose of a specific piece of property. This
statute is Republic Act No. 905, enacted on 20 June 1953, which authorized the

President to sell an Identified parcel of land of the private domain of the National
Government to the National Press Club of the Philippines, and to other recognized
national associations of professionals with academic standing, for the nominal price of
P1.00. It appears relevant to note that Republic Act No. 905 was not an outright
disposition in perpetuity of the property involved- it provided for reversion of the
property to the National Government in case the National Press Club stopped using it
for its headquarters. What Republic Act No. 905 authorized was really a donation, and
not a sale.

The basic submission here made is that Act No. 3038 provides standing legislative
authorization for disposition of the Roppongi property which, in my view, has been
converted into patrimonial property of the Republic. 2

To some, the submission that Act No. 3038 applies not only to lands of the private
domain of the State located in the Philippines but also to patrimonial property found
outside the Philippines, may appear strange or unusual. I respectfully submit that such
position is not any more unusual or strange than the assumption that Article 420 of the
Civil Code applies not only to property of the Republic located within Philippine
territory but also to property found outside the boundaries of the Republic.

It remains to note that under the well-settled doctrine that heads of Executive
Departments are alter egosof the President (Villena v. Secretary of the Interior, 67 Phil.
451 [1939]), and in view of the constitutional power of control exercised by the
President over department heads (Article VII, Section 17,1987 Constitution), the
President herself may carry out the function or duty that is specifically lodged in the
Secretary of the Department of Environment and Natural Resources (Araneta v.
Gatmaitan 101 Phil. 328 [1957]). At the very least, the President retains the power to
approve or disapprove the exercise of that function or duty when done by the
Secretary of Environment and Natural Resources.

It is hardly necessary to add that the foregoing analyses and submissions relate only
to the austere question of existence of legal power or authority. They have nothing to
do with much debated questions of wisdom or propriety or relative desirability either of
the proposed disposition itself or of the proposed utilization of the anticipated
proceeds of the property involved. These latter types of considerations He within the
sphere of responsibility of the political departments of government the Executive and
the Legislative authorities.

For all the foregoing, I vote to dismiss the Petitions for Prohibition in both G.R. Nos.
92013 and 92047.

Fernan, C.J., Narvasa, Gancayco, Cortes and Medialdea, JJ., concurring.

Footnotes

Padilla, J.

1 Art. 422 of the Civil Code provides:

"Property of public dominion, when no longer intended for public use or public service,
shall form part of the patrimonial property of the State. (341a)

Sarmiento, J.

1 Municipality of Oas v. Roa, 7 Phil. 20 (1906).

2 Municipality of Hinunangan v. Director of Lands, 24 Phil. 124 (11913). The property
involved here was a fortress.

3 Harty v. Municipality of Victoria, 13 Phil. 152 (1909).

4 See also II TOLENTINO, CIVIL CODE OF THE PHILIPPINES 39 (1972 ed.), citing 3
Manresa III. See also Province of Zamboanga del Norte v. City of Zamboanga, No.
L-24440, March 28, 1968, 22 SCRA 1334.

5 Ignacio v. Director of Lands, 108 Phil. 335, 339 (1960).

6 Cebu Oxygen & Acetylene Co., Inc. vs. Bercilles, No. L-40474, August 29, 1975, 66
SCRA 481.

7 G.R. Nos. 92013 & 92047, 21.

8 Salas v. Jarencio, No. L-29788, August 30, 1972, 46 SCRA 734; Rabuco v. Villegas,
No.
L-24916, February 28, 1974, 55 SCRA 658.

9 See Lianga Bay Logging Co., Inc. v. Lopez Enage, No. L-30637, July 16, 1987, 152
SCRA 80.

10 CONST., art. XII, sec. 2.

Feliciano, J.

1 We are orally advised by the Office of the Director of Lands that Act No. 3038 is very
much in effect and that the Bureau of Lands continues to date to act under it. See also,
in this connection, Sections 2 and 4 of Republic Act No. 477, enacted 9 June 1950 and
as last amended by B.P. Blg 233. This statute government the disposition of lands of
the public domain and of the private domain of the State, including lands previously
vested in the United States Alien Property Custodian and transferred to the Republic of
the Philippines.

2 Since Act No. 3038 established certain qualifications for applicants for purchase or
lease of land of private domain of the government, it is relevant to note that Executive
Order No. 296, promulgated at a time when the President was still exercising legislative
authority, provides as follows:

"Sec. 1. The provisions of Republic Act No. 1789, as amended, and of other laws, to the
contrary notwithstanding, the above mentioned properties can be made available for
sale, lease or any other manner of disposition to non-Filipino citizens." (Emphasis
supplied)
 SUPREME COURT
Manila
EN BANC

G.R. No. 180046

REVIEW CENTER ASSOCIATION
Present:
OF THE PHILIPPINES,
Petitioner, PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
- versus - CARPIO,
AUSTRIA-MARTINEZ,
EXECUTIVE SECRETARY CORONA,
EDUARDO ERMITA and CARPIO MORALES,
COMMISSION ON HIGHER TINGA,
EDUCATION represented by its CHICO-NAZARIO,
Chairman ROMULO L. NERI, VELASCO, JR.,
Respondents. NACHURA,
LEONARDO-DE CASTRO,
BRION, and
CPA REVIEW SCHOOL OF THE PERALTA, JJ.
PHILIPPINES, INC. (CPAR),
PROFESSIONAL REVIEW AND
TRAINING CENTER, INC. (PRTC),
ReSA REVIEW SCHOOL, INC.
(ReSA), CRC-ACE REVIEW
SCHOOL, INC. (CRC-ACE),
Petitioners-Intervenors. Promulgated:
April 2, 2009
PIMSAT COLLEGES,
Respondent-Intervenor.
x--------------------------------------------------x
 DECISION

CARPIO, J.:
The Case

Before the Court is a petition for prohibition and mandamus assailing

Executive Order No. 566 (EO 566)[1] and Commission on Higher Education
(CHED) Memorandum Order No. 30, series of 2007 (RIRR).[2]

The Antecedent Facts

On 11 and 12 June 2006, the Professional Regulation Commission (PRC)

conducted the Nursing Board Examinations nationwide. In June 2006,
licensure applicants wrote the PRC to report that handwritten copies of two
sets of examinations were circulated during the examination period among
the examinees reviewing at the R.A. Gapuz Review Center and Inress
Review Center. George Cordero, Inress Review Centers President, was then
the incumbent President of the Philippine Nurses Association. The
examinees were provided with a list of 500 questions and answers in two of
the examinations five subjects, particularly Tests III (Psychiatric Nursing)
and V (Medical-Surgical Nursing). The PRC later admitted the leakage and
traced it to two Board of Nursing members.[3] On 19 June 2006, the PRC
released the results of the Nursing Board Examinations. On 18 August 2006,
the Court of Appeals restrained the PRC from proceeding with the
oath-taking of the successful examinees set on 22 August 2006.

Consequently, President Gloria Macapagal-Arroyo (President Arroyo)

replaced all the members of the PRCs Board of Nursing. President Arroyo
also ordered the examinees to re-take the Nursing Board Examinations.

On 8 September 2006, President Arroyo issued EO 566 which authorized the

CHED to supervise the establishment and operation of all review centers and
similar entities in the Philippines.
On 3 November 2006, the CHED, through its then Chairman Carlito S. Puno
(Chairman Puno), approved CHED Memorandum Order No. 49, series of
2006 (IRR).[4]

In a letter dated 24 November 2006,[5] the Review Center Association of the

Philippines (petitioner), an organization of independent review centers,
asked the CHED to amend, if not withdraw the IRR arguing, among other
things, that giving permits to operate a review center to Higher Education
Institutions (HEIs) or consortia of HEIs and professional organizations will
effectively abolish independent review centers.

In a letter dated 3 January 2007,[6] Chairman Puno wrote petitioner, through

its President Jose Antonio Fudolig (Fudolig), that to suspend the
implementation of the IRR would be inconsistent with the mandate of EO
566. Chairman Puno wrote that the IRR was presented to the stakeholders
during a consultation process prior to its finalization and publication on 13
November 2006. Chairman Puno also wrote that petitioners comments and
suggestions would be considered in the event of revisions to the IRR.

In view of petitioners continuing request to suspend and re-evaluate the IRR,

Chairman Puno, in a letter dated 9 February 2007,[7] invited petitioners
representatives to a dialogue on 14 March 2007. In accordance with what
was agreed upon during the dialogue, petitioner submitted to the CHED its
position paper on the IRR. Petitioner also requested the CHED to confirm in
writing Chairman Punos statements during the dialogue, particularly on
lowering of the registration fee from P400,000 to P20,000 and the
requirement for reviewers to have five years teaching experience instead of
five years administrative experience. Petitioner likewise requested for a
categorical answer to their request for the suspension of the IRR. The CHED
did not reply to the letter.

On 7 May 2007, the CHED approved the RIRR. On 22 August 2007,

petitioner filed before the CHED a Petition to Clarify/Amend Revised
Implementing Rules and Regulations[8] praying for a ruling:
 1. Amending the RIRR by excluding independent review
centers from the coverage of the CHED;

2. Clarifying the meaning of the requirement for existing review

centers to tie-up or be integrated with HEIs, consortium or HEIs
and PRC-recognized professional associations with recognized
programs, or in the alternative, to convert into schools; and

3. Revising the rules to make it conform with Republic Act No.

7722 (RA 7722)[9] limiting the CHEDs coverage to public and
private institutions of higher education as well as
degree-granting programs in post-secondary educational
institutions.

On 8 October 2007, the CHED issued Resolution No. 718-2007[10] referring

petitioners request to exclude independent review centers from CHEDs
supervision and regulation to the Office of the President as the matter
requires the amendment of EO 566. In a letter dated 17 October
2007,[11] then CHED Chairman Romulo L. Neri (Chairman Neri) wrote
petitioner regarding its petition to be excluded from the coverage of the
CHED in the RIRR. Chairman Neri stated:

While it may be true that regulation of review centers is not one of the
mandates of CHED under Republic Act 7722, however, on September 8,
2006, Her Excellency, President Gloria Macapagal-Arroyo, issued
Executive Order No. 566 directing the Commission on Higher Education
to regulate the establishment and operation of review centers and similar
entities in the entire country.

With the issuance of the aforesaid Executive Order, the CHED now is the
agency that is mandated to regulate the establishment and operation of all
review centers as provided for under Section 4 of the Executive Order
which provides that No review center or similar entities shall be
established and/or operate review classes without the favorable expressed
indorsement of the CHED and without the issuance of the necessary
permits or authorizations to conduct review classes. x x x

To exclude the operation of independent review centers from the

coverage of CHED would clearly contradict the intention of the said
Executive Order No. 566.
 Considering that the requests requires the amendment of Executive Order
No. 566, the Commission, during its 305th Commission Meeting, resolved
that the said request be directly referred to the Office of the President for
appropriate action.

As to the request to clarify what is meant by tie-up/be integrated with an

HEI, as required under the Revised Implementing Rules and Regulations,
tie-up/be integrated simply means, to be in partner with an
HEI.[12] (Boldfacing and underscoring in the original)

On 26 October 2007, petitioner filed a petition for Prohibition and

Mandamus before this Court praying for the annulment of the RIRR,
the declaration of EO 566 as invalid and unconstitutional, and the
prohibition against CHED from implementing the RIRR.

Dr. Freddie T. Bernal, Director III, Officer-In-Charge, Office of the Director

IV of CHED, sent a letter[13] to the President of Northcap Review Center,
Inc., a member of petitioner, that it had until 27 November 2007 to comply
with the RIRR.

On 15 February 2008,[14] PIMSAT Colleges (respondent-intervenor) filed a

Motion For Leave to Intervene and To Admit Comment-in-Intervention and
a Comment-in-Intervention praying for the dismissal of the
petition. Respondent-intervenor alleges that the Office of the President and
the CHED did not commit any act of grave abuse of discretion in issuing EO
566 and the RIRR. Respondent-intervenor alleges that the requirements of
the RIRR are reasonable, doable, and are not designed to deprive existing
review centers of their review business. The Court granted the Motion for
Leave to Intervene and to Admit Comment-in-Intervention in its 11 March
2008 Resolution.[15]

On 23 April 2008, a Motion for Leave of Court for Intervention In Support

of the Petition and a Petition In Intervention were filed by CPA Review
School of the Philippines, Inc. (CPAR), Professional Review and Training
Center, Inc. (PRTC), ReSA Review School, Inc. (ReSA), CRC-ACE Review
School, Inc. (CRC-ACE), all independent CPA review centers operating in
Manila (collectively, petitioners-intervenors). Petitioners-intervenors pray
for the declaration of EO 566 and the RIRR as invalid on the ground that
both constitute an unconstitutional exercise of legislative power. The Court
granted the intervention in its 29 April 2008 Resolution.[16]

On 21 May 2008, the CHED issued CHED Memorandum Order No. 21,
Series of 2008 (CMO 21, s. 2008)[17] extending the deadline for six months
from 27 May 2008 for all existing independent review centers to tie-up or be
integrated with HEIs in accordance with the RIRR.

In its 25 November 2008 Resolution, this Court resolved to require the

parties to observe the status quo prevailing before the issuance of EO 566,
the RIRR, and CMO 21, s. 2008.

The Assailed Executive Order and the RIRR

Executive Order No. 566 states in full:

EXECUTIVE ORDER NO. 566

DIRECTING THE COMMISSION ON HIGHER EDUCATION TO

REGULATE THE ESTABLISHMENT AND OPERATION OF REVIEW
CENTERS AND SIMILAR ENTITIES

WHEREAS, the State is mandated to protect the right of all citizens to

quality education at all levels and shall take appropriate steps to make
education accessible to all, pursuant to Section 1, Article XIV of the 1987
Constitution;

WHEREAS, the State has the obligation to ensure and promote quality
education through the proper supervision and regulation of the licensure
examinations given through the various Boards of Examiners under the
Professional Regulation Commission;

WHEREAS, the lack of regulatory framework for the establishment and

operation of review centers and similar entities, as shown in recent events,
have adverse consequences and affect public interest and welfare;

WHEREAS, the overriding necessity to protect the public against

substandard review centers and unethical practices committed by some
review centers demand that a regulatory framework for the establishment
and operation of review centers and similar entities be immediately
instituted;

WHEREAS, Republic Act No. 7722, otherwise known as the Higher

Education Act of 1994, created the Commission on Higher Education,
which is best equipped to carry out the provisions pertaining to the
regulation of the establishment and operation of review centers and similar
entities.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, the

President of the Republic of the Philippines, by virtue of the powers vested
in me by law, do hereby order:

SECTION 1. Establishment of a System of Regulation for Review Centers

and Similar Entities. The Commission on Higher Education (CHED), in
consultation with other concerned government agencies, is hereby directed
to formulate a framework for the regulation of review centers and similar
entities, including but not limited to the development and
institutionalization of policies, standards, guidelines for the establishment,
operation and accreditation of review centers and similar entities;
maintenance of a mechanism to monitor the adequacy, transparency and
propriety of their operations; and reporting mechanisms to review
performance and ethical practice.

SEC. 2. Coordination and Support. The Professional Regulation

Commission (PRC), Technical Skills Development Authority (TESDA),
Securities and Exchange Commission (SEC), the various Boards of
Examiners under the PRC, as well as other concerned non-government
organizations life professional societies, and various government agencies,
such as the Department of Justice (DOJ), National Bureau of Investigation
(NBI), Office of the Solicitor General (OSG), and others that may be
tapped later, shall provide the necessary assistance and technical support to
the CHED in the successful operationalization of the System of Regulation
envisioned by this Executive Order.

SEC. 3. Permanent Office and Staff. To ensure the effective

implementation of the System of Regulation, the CHED shall organize a
permanent office under its supervision to be headed by an official with the
rank of Director and to be composed of highly competent individuals with
expertise in educational assessment, evaluation and testing; policies and
standards development, monitoring, legal and enforcement; and statistics
as well as curriculum and instructional materials development. The CHED
shall submit the staffing pattern and budgetary requirements to the
Department of Budget and Management (DBM) for approval.
SEC. 4. Indorsement Requirement. No review center or similar entities
shall be established and/or operate review classes without the favorable
expressed indorsement of the CHED and without the issuance of the
necessary permits or authorizations to conduct review classes. After due
consultation with the stakeholders, the concerned review centers and
similar entities shall be given a reasonable period, at the discretion of the
CHED, to comply with the policies and standards, within a period not
exceeding three (3) years, after due publication of this Executive
Order. The CHED shall see to it that the System of Regulation including
the implementing mechanisms, policies, guidelines and other necessary
procedures and documentation for the effective implementation of the
System, are completed within sixty days (60) upon effectivity of this
Executive Order.

SEC. 5. Funding. The initial amount necessary for the development and
implementation of the System of Regulation shall be sourced from the
CHED Higher Education Development Fund (HEDF), subject to the usual
government accounting and auditing practices, or from any applicable
funding source identified by the DBM. For the succeeding fiscal year, such
amounts as may be necessary for the budgetary requirement of
implementing the System of Regulation and the provisions of this
Executive Order shall be provided for in the annual General
Appropriations Act in the budget of the CHED. Whenever necessary, the
CHED may tap its Development Funds as supplemental source of funding
for the effective implementation of the regulatory system. In this
connection, the CHED is hereby authorized to create special accounts in
the HEDF exclusively for the purpose of implementing the provisions of
this Executive Order.

SEC. 6. Review and Reporting. The CHED shall provide for the periodic
review performance of review centers and similar entities and shall make a
report to the Office of the President of the results of such review,
evaluation and monitoring.

SEC. 7. Separability. Any portion or provision of this Executive Order that

may be declared unconstitutional shall not have the effect of nullifying
other provisions hereof, as long as such remaining provisions can still
subsist and be given effect in their entirely.

SEC. 8. Repeal. All rules and regulations, other issuances or parts thereof,
which are inconsistent with this Executive Order, are hereby repealed or
modified accordingly.

SEC. 9. Effectivity. This Executive Order shall take effect immediately

upon its publication in a national newspaper of general circulation.
 DONE in the City of Manila, this 8th day of September, in the year of Our
Lord, Two Thousand and Six.

(Sgd.) Gloria Macapagal-Arroyo

By the President:

(Sgd.) Eduardo R. Ermita

Executive Secretary

The pertinent provisions of the RIRR affecting independent review centers

are as follows:

Rule VII
IMPLEMENTING GUIDELINES AND PROCEDURES

Section 1. Authority to Establish and Operate Only CHED recognized,

accredited and reputable HEIs may be authorized to establish and operate
review center/course by the CHED upon full compliance with the
conditions and requirements provided herein and in other pertinent laws,
rules and regulations. In addition, a consortium or consortia of qualified
schools and/or entities may establish and operate review centers or conduct
review classes upon compliance with the provisions of these Rules.

Rule XIV
TRANSITORY PROVISIONS

Section 1. Review centers that are existing upon the approval of Executive
Order No. 566 shall be given a grace period of up to one (1) year, to
tie-up/be integrated with existing HEIs[,] consortium of HEIs and PRC
recognized Professional Associations with recognized programs under the
conditions set forth in this Order and upon mutually acceptable covenants
by the contracting parties. In the alternative, they may convert as a school
and apply for the course covered by the review subject to rules and
regulations of the CHED and the SEC with respect to the establishment of
schools. In the meantime, no permit shall be issued if there is
non-compliance with these conditions or non-compliance with the
requirements set forth in these rules.

Section 2. Only after full compliance with the requirements shall a Permit
be given by the CHED to review centers contemplated under this Rule.
 Section 3. Failure of existing review centers to fully comply with the above
shall bar them from existing as review centers and they shall be deemed as
operating illegally as such. In addition, appropriate administrative and legal
proceedings shall be commence[d] against the erring entities that continue
to operate and appropriate sanctions shall be imposed after due process.

The Issues

The issues raised in this case are the following:

1. Whether EO 566 is an unconstitutional exercise by the

Executive of legislative power as it expands the CHEDs
jurisdiction; and

2. Whether the RIRR is an invalid exercise of the Executives

rule-making power.

The Ruling of this Court

The petition has merit.

Violation of Judicial Hierarchy

The Office of the Solicitor General (OSG) prays for the dismissal of the
petition. Among other grounds, the OSG alleges that petitioner violated the
rule on judicial hierarchy in filing the petition directly with this Court.

This Courts original jurisdiction to issue a writ of certiorari, prohibition,

mandamus, quo warranto, habeas corpus, and injunction is not exclusive but
is concurrent with the Regional Trial Courts and the Court of Appeals in
certain cases.[18] The Court has explained:

This concurrence of jurisdiction is not, however, to be taken as according

to parties seeking any of the writs an absolute, unrestrained freedom of
choice of the court to which application therefor will be directed. There is
after all a hierarchy of courts. That hierarchy is determinative of the venue
of appeals, and also serves as a general determinant of the appropriate
forum for petitions for the extraordinary writs. A becoming regard of that
 judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level (inferior) courts should be filed with
the Regional Trial Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Courts original jurisdiction to
issue these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in the
petition. This is [an] established policy. It is a policy necessary to prevent
inordinate demands upon the Courts time and attention which are better
devoted to those matters within its exclusive jurisdiction, and to prevent
further over-crowding of the Courts docket.[19]

The Court has further explained:

The propensity of litigants and lawyers to disregard the hierarchy of courts

in our judicial system by seeking relief directly from this Court must be
put to a halt for two reasons: (1) it would be an imposition upon the
precious time of this Court; and (2) it would cause an inevitable and
resultant delay, intended or otherwise, in the adjudication of cases, which
in some instances had to be remanded or referred to the lower court as the
proper forum under the rules of procedure, or as better equipped to resolve
the issues because this Court is not a trier of facts.[20]

The rule, however, is not absolute, as when exceptional and compelling

circumstances justify the exercise of this Court of its primary jurisdiction. In
this case, petitioner alleges that EO 566 expands the coverage of RA 7722
and in doing so, the Executive Department usurps the legislative powers of
Congress. The issue in this case is not only the validity of the
RIRR. Otherwise, the proper remedy of petitioner and
petitioners-intervenors would have been an ordinary action for the
nullification of the RIRR before the Regional Trial Court.[21] The alleged
violation of the Constitution by the Executive Department when it issued EO
566 justifies the exercise by the Court of its primary jurisdiction over the
case. The Court is not precluded from brushing aside technicalities and
taking cognizance of an action due to its importance to the public and in
keeping with its duty to determine whether the other branches of the
Government have kept themselves within the limits of the Constitution.[22]

OSGs Technical Objections

The OSG alleges that the petition should be dismissed because the
verification and certification of non-forum shopping were signed only by
Fudolig without the express authority of any board resolution or power of
attorney. However, the records show that Fudolig was authorized under
Board Resolution No. 3, series of 2007[23] to file a petition before this Court
on behalf of petitioner and to execute any and all documents necessary to
implement the resolution.

The OSG also alleges that the petition should be dismissed for violation of
the 2004 Rules on Notarial Practice because Fudolig only presented his
community tax certificate as competent proof of identity before the notary
public. The Court would have required Fudolig to comply with the 2004
Rules on Notarial Practice except that Fudolig already presented his
Philippine passport before the notary public when petitioner submitted its
reply to the OSGs comment.

EO 566 Expands the Coverage of RA 7722

The OSG alleges that Section 3 of RA 7722 should be read in conjunction

with Section 8, enumerating the CHEDs powers and functions. In particular,
the OSG alleges that the CHED has the power under paragraphs (e) and (n)
of Section 8 to:

(e) monitor and evaluate the performance of programs and institutions of

higher learning for appropriate incentives as well as the imposition of
sanctions such as, but not limited to, diminution or withdrawal of subsidy,
recommendation on the downgrading or withdrawal of accreditation,
program termination or school closure;

(n) promulgate such rules and regulations and exercise such other powers
and functions as may be necessary to carry out effectively the purpose and
objectives of this Act[.]

The OSG justifies its stand by claiming that the term programs x x x of
higher learning is broad enough to include programs offered by review
centers.
We do not agree.

Section 3 of RA 7722 provides:

Sec. 3. Creation of Commission on Higher Education. - In pursuance of

the abovementioned policies, the Commission on Higher Education is
hereby created, hereinafter referred to as the Commission.

The Commission shall be independent and separate from the Department

of Education, Culture and Sports (DECS), and attached to the Office of
the President for administrative purposes only.Its coverage shall be both
public and private institutions of higher education as well as
degree-granting programs in all post-secondary educational
institutions, public and private. (Emphasis supplied)

Neither RA 7722 nor CHED Order No. 3, series of 1994 (Implementing

Rules of RA 7722)[24] defines an institution of higher learning or a program
of higher learning.

Higher education, however, is defined as education beyond the secondary

level[25] or education provided by a college or university.[26] Under the plain
meaning or verba legisrule in statutory construction, if the statute is clear,
plain, and free from ambiguity, it must be given its literal meaning and
applied without interpretation.[27] The legislature is presumed to know the
meaning of the words, to have used words advisedly, and to have expressed
its intent by use of such words as are found in the statute.[28] Hence, the term
higher education should be taken in its ordinary sense and should be read
and interpreted together with the phrase degree-granting programs in all
post-secondary educational institutions, public and private. Higher education
should be taken to mean tertiary education or that which grants a degree
after its completion.
Further, Articles 6 and 7 of the Implementing Rules provide:

Article 6. Scope of Application. - The coverage of the Commission shall

be both public and private institutions of higher education as well
as degree granting programs in all post-secondary educational
institutions, public and private.

These Rules shall apply to all public and private educational institutions
offering tertiary degree programs.

The establishment, conversion, or elevation of degree-granting

institutions shall be within the responsibility of the Commission.

Article 7. Jurisdiction. - Jurisdiction over institutions of higher learning

primarily offering tertiary degree programs shall belong to the
Commission. (Emphasis supplied)

Clearly, HEIs refer to degree-granting institutions, or those offering tertiary

degree or post-secondary programs. In fact, Republic Act No. 8292 or the
Higher Education Modernization Act of 1997 covers chartered state
universities and colleges. State universities and colleges primarily offer
degree courses and programs.

Sections 1 and 8, Rule IV of the RIRR define a review center and similar
entities as follows:

Section 1. REVIEW CENTER. - refers to a center operated and owned by

a duly authorized entity pursuant to these Rules intending to offer to the
public and/or to specialized groups whether for a fee or for free a program
or course of study that is intended to refresh and enhance the knowledge
and competencies and skills of reviewees obtained in the formal school
setting in preparation for the licensure examinations given by the
Professional Regulations Commission (PRC). The term review center as
understood in these rules shall also embrace the operation or conduct of
review classes or courses provided by individuals whether for a fee or not
in preparation for the licensure examinations given by the Professional
Regulations Commission.

xxx
 Section 8. SIMILAR ENTITIES the term refer to other review centers
providing review or tutorial services in areas not covered by licensure
examinations given by the Professional Regulations Commission
including but not limited to college entrance examinations, Civil Service
examinations, tutorial services in specific fields like English, Mathematics
and the like.

The same Rule defines a review course as follows:

Section 3. REVIEW COURSE refers to the set of non-degree instructional

program of study and/or instructional materials/module, offered by a
school with a recognized course/program requiring licensure examination,
that are intended merely to refresh and enhance the knowledge or
competencies and skills of reviewees.

The scopes of EO 566 and the RIRR clearly expand the CHEDs coverage
under RA 7722. The CHEDs coverage under RA 7722 is limited to public
and private institutions of higher education and degree-granting
programs in all public and private post-secondary educational
institutions. EO 566 directed the CHED to formulate a framework for the
regulation of review centers and similar entities.

The definition of a review center under EO 566 shows that it refers to one
which offers a program or course of study that is intended to refresh and
enhance the knowledge or competencies and skills of reviewees obtained
in the formal school setting in preparation for the licensure
examinations given by the PRC. It also covers the operation or conduct of
review classes or courses provided by individuals whether for a fee or not in
preparation for the licensure examinations given by the PRC.

A review center is not an institution of higher learning as contemplated by

RA 7722. It does not offer a degree-granting program that would put it under
the jurisdiction of the CHED. A review course is only intended to refresh
and enhance the knowledge or competencies and skills of reviewees. A
reviewee is not even required to enroll in a review center or to take a review
course prior to taking an examination given by the PRC. Even if a reviewee
enrolls in a review center, attendance in a review course is not
mandatory.The reviewee is not required to attend each review class. He is
not required to take or pass an examination, and neither is he given a
grade. He is also not required to submit any thesis or dissertation. Thus,
programs given by review centers could not be considered programs x x x of
higher learning that would put them under the jurisdiction of the CHED.

Further, the similar entities in EO 566 cover centers providing review or

tutorial services in areas not covered by licensure examinations given by the
PRC, which include, although not limited to, college entrance examinations,
Civil Services examinations, and tutorial services. These review and tutorial
services hardly qualify as programs of higher learning.

Usurpation of Legislative Power

The OSG argues that President Arroyo was merely exercising her executive
power to ensure that the laws are faithfully executed. The OSG further
argues that President Arroyo was exercising her residual powers under
Executive Order No. 292 (EO 292),[29] particularly Section 20, Title I of
Book III, thus:

Section 20. Residual Powers. - Unless Congress provides otherwise, the

President shall exercise such other powers and functions vested in the
President which are provided for under the laws and which are not
specifically enumerated above, or which are not delegated by the President
in accordance with law. (Emphasis supplied)

Section 20, Title I of Book III of EO 292 speaks of other powers vested in
the President under the law.[30] The exercise of the Presidents residual
powers under this provision requires legislation,[31] as the provision clearly
states that the exercise of the Presidents other powers and functions has to
be provided for under the law. There is no law granting the President the
power to amend the functions of the CHED. The President may not amend
RA 7722 through an Executive Order without a prior legislation granting her
such power.
The President has no inherent or delegated legislative power to amend the
functions of the CHED under RA 7722. Legislative power is the authority to
make laws and to alter or repeal them,[32] and this power is vested with the
Congress under Section 1, Article VI of the 1987 Constitution which states:

Section 1. The legislative power shall be vested in the Congress of the

Philippines which shall consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the provision on initiative
and referendum.

In Ople v. Torres,[33] the Court declared void, as a usurpation of legislative

power, Administrative Order No. 308 (AO 308) issued by the President to
create a national identification system. AO 308 mandates the adoption of a
national identification system even in the absence of an enabling
legislation. The Court distinguished between Legislative and Executive
powers, as follows:

The line that delineates Legislative and Executive power is not

indistinct. Legislative power is the authority, under the Constitution, to
make laws, and to alter and repeal them. The Constitution, as the will of
the people in their original, sovereign and unlimited capacity, has vested
this power in the Congress of the Philippines. The grant of legislative
power to Congress is broad, general and comprehensive. The legislative
body possesses plenary power for all purposes of civil government. Any
power, deemed to be legislative by usage and tradition, is necessarily
possessed by Congress, unless the Constitution has lodged it elsewhere. In
fine, except as limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to matters of general
concern or common interest.

While Congress is vested with the power to enact laws, the President
executes the laws. The executive power is vested in the President. It is
generally defined as the power to enforce and administer laws. It is the
power of carrying the laws into practical operation and enforcing their due
observance.

As head of the Executive Department, the President is the Chief

Executive. He represents the government as a whole and sees to it that all
laws are enforced by the officials and employees of his department. He has
control over the executive department, bureaus and offices. This means
 that he has the authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of its
officials. Corollary to the power of control, the President also has the duty
of supervising the enforcement of laws for the maintenance of general
peace and public order. Thus, he is granted administrative power over
bureaus and offices under his control to enable him to discharge his duties
effectively.

Administrative power is concerned with the work of applying policies and

enforcing orders as determined by proper governmental organs. It enables
the President to fix a uniform standard of administrative efficiency and
check the official conduct of his agents. To this end, he can issue
administrative orders, rules and regulations.

x x x. An administrative order is:

Sec. 3. Administrative Orders. - Acts of the President which relate

to particular aspects of governmental operation in pursuance of his
duties as administrative head shall be promulgated in
administrative orders.

An administrative order is an ordinance issued by the President which

relates to specific aspects in the administrative operation of government. It
must be in harmony with the law and should be for the sole purpose of
implementing the law and carrying out the legislative policy. x x x.[34]

Just like AO 308 in Ople v. Torres, EO 566 in this case is not supported by
any enabling law. The Court further stated in Ople:
x x x. As well stated by Fisher: x x x Many regulations however, bear
directly on the public. It is here that administrative legislation must be
restricted in its scope and application. Regulations are not supposed to be
a substitute for the general policy-making that Congress enacts in the form
of a public law. Although administrative regulations are entitled to respect,
the authority to prescribe rules and regulations is not an independent
source of power to make laws.[35]

Since EO 566 is an invalid exercise of legislative power, the RIRR is also an

invalid exercise of the CHEDs quasi-legislative power.

Administrative agencies exercise their quasi-legislative or rule-making

power through the promulgation of rules and regulations.[36] The CHED may
only exercise its rule-making power within the confines of its jurisdiction
under RA 7722. The RIRR covers review centers and similar entities which
are neither institutions of higher education nor institutions offering
degree-granting programs.

Exercise of Police Power

Police power to prescribe regulations to promote the health, morals,

education, good order or safety, and the general welfare of the people flows
from the recognition that salus populi est suprema lex the welfare of the
people is the supreme law.[37] Police power primarily rests with the
legislature although it may be exercised by the President and administrative
boards by virtue of a valid delegation.[38] Here, no delegation of police power
exists under RA 7722 authorizing the President to regulate the operations of
non-degree granting review centers.

Republic Act No. 8981 is Not the Appropriate Law

It is argued that the President of the Philippines has adequate powers under
the law to regulate review centers and this could have been done under an
existing validly delegated authority, and that the appropriate law is Republic
Act No. 8981[39] (RA 8981). Under Section 5 of RA 8981, the PRC is
mandated to establish and maintain a high standard of admission to the
practice of all professions and at all times ensure and safeguard the integrity
of all licensure examinations. Section 7 of RA 8981 further states that the
PRC shall adopt measures to preserve the integrity and inviolability of
licensure examinations.

There is no doubt that a principal mandate of the PRC is to preserve the

integrity of licensure examinations. The PRC has the power to adopt
measures to preserve the integrity and inviolability of licensure
examinations. However, this power should properly be interpreted to refer to
the conduct of the examinations. The enumeration of PRCs powers under
Section 7(e) includes among others, the fixing of dates and places of the
examinations and the appointment of supervisors and watchers. The power
to preserve the integrity and inviolability of licensure examinations should
be read together with these functions. These powers of the PRC have
nothing to do at all with the regulation of review centers.

The PRC has the power to investigate any of the members of the
Professional Regulatory Boards (PRB) for commission of any irregularities
in the licensure examinations which taint or impugn the integrity and
authenticity of the results of the said examinations.[40] This is an
administrative power which the PRC exercises over members of the
PRB.However, this power has nothing to do with the regulation of review
centers. The PRC has the power to bar PRB members from conducting
review classes in review centers.However, to interpret this power to
extend to the power to regulate review centers is clearly an unwarranted
interpretation of RA 8981. The PRC may prohibit the members of the PRB
from conducting review classes at review centers because the PRC has
administrative supervision over the members of the PRB. However, such
power does not extend to the regulation of review centers.

Section 7(y) of RA 8981 giving the PRC the power to perform such other
functions and duties as may be necessary to carry out the provisions of RA
8981 does not extend to the regulation of review centers. There is
absolutely nothing in RA 8981 that mentions regulation by the PRC of
review centers.

The Court cannot likewise interpret the fact that RA 8981 penalizes any
person who manipulates or rigs licensure examination results, secretly
informs or makes known licensure examination questions prior to the
conduct of the examination or tampers with the grades in the professional
licensure examinations[41] as a grant of power to regulate review centers. The
provision simply provides for the penalties for manipulation and other
corrupt practices in the conduct of the professional examinations.

The assailed EO 566 seeks to regulate not only review centers but also
similar entities. The questioned CHED RIRR defines similar entities as
 referring to other review centers providing review or tutorial services in
areas not covered by licensure examinations given by the PRC including but
not limited to college entrance examinations, Civil Service examinations,
tutorial services in specific fields like English, Mathematics and the
like.[42] The PRC has no mandate to supervise review centers that give
courses or lectures intended to prepare examinees for licensure examinations
given by the PRC. It is like the Court regulating bar review centers just
because the Court conducts the bar examinations. Similarly, the PRC has
no mandate to regulate similar entities whose reviewees will not even
take any licensure examination given by the PRC.

WHEREFORE, we GRANT the petition and the

petition-in-intervention. We DECLARE Executive Order No. 566 and
Commission on Higher Education Memorandum Order No. 30, series of
2007 VOID for being unconstitutional.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO

 Associate Justice YNARES-SANTIAGO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE

Associate Justice CASTRO
Associate Justice

ARTURO D. BRION
Associate Justice DIOSDADO M. PERALTA
 Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

[1]
Rollo, pp. 35-37. Directing the Commission on Higher Education to Regulate the
Establishment and Operation of Review Centers and Similar Entities. Signed on 8 September 2006.
[2]
Id. at 38-55. Revised Implementing Rules and Regulations Governing The Establishment and Operation
of Review Centers And Similar Entities In The Philippines Pursuant To Executive Order No.
566. Approved on 7 May 2007.
[3] Virginia Madeja and Anesia Dionisio were eventually charged with violation of Republic Act No. 8981
(An Act Modernizing the Professional Regulation Commission) and Republic Act No. 3019 (The
Anti-Graft and Corrupt Practices Act).
[4]
Rollo, pp. 105-121. CMO 49, s. 2006 is otherwise known as the Implementing Rules and Regulations
Governing the Establishment and Operation of Review Centers and Similar Entities in the Philippines.
[5]
Id. at 75-77.
[6]
Id. at 79.
[7]
Id. at 80.
[8]
Id. at 58-69.
[9]
An Act Creating the Commission on Higher Education, Appropriating Funds Therefor and For Other
Purposes.
[10]
Rollo, p. 180.
[11]
Id. at 181-182.
[12]
Id. at 181-182.
[13]
Id. at 92.
[14]
Not 14 February 2008 as stated in the 11 March 2008 Resolution.
[15]
Rollo, p. 184.
[16]
Id. at 230.
[17]
Id. at 257.
[18]
LPBS Commercial, Inc. v. Amila, G.R. No. 147443, 11 February 2008, 544 SCRA 199.
[19]
Liga ng mga Barangay National v. City Mayor of Manila, 465 Phil. 529, 542-543 (2004), citing People
v. Cuaresma, G.R. No. 67787, 18 April 1989, 172 SCRA 415.
[20]
LPBS Commercial, Inc. v. Amila, supra note 18 at 205, citing Santiago v. Vasquez, G.R. Nos. 99289-90,
27 January 1993, 217 SCRA 633.
[21]
Holy Spirit Homeowners Association, Inc. v. Defensor, G.R. No. 163980, 3 August 2006, 497 SCRA
581.
[22]
Executive Secretary v. Southwing Heavy Industries, Inc., G.R. No. 164171, 20 February 2006,
482 SCRA 673.
[23]
Rollo, p. 104.
[24]
Rules and Regulations Implementing RA 7722, as amended.
[25]
WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY, 1986 ed., p. 1068.
[26]
Id.
[27]
Republic v. Lacap, G.R. No. 158253, 2 March 2007, 517 SCRA 255.
[28]
Id.
[29]
The Administrative Code of 1987.
[30]
See Larin v. Executive Secretary, 345 Phil. 962 (1997).
[31]
See Kilusang Mayo Uno v. Director-General, National Economic Development Authority, G.R. No.
167798, 19 April 2006, 487 SCRA 623.
[32]
Id.
[33]
354 Phil. 948 (1998).
[34]
Id. at 966-968.
[35]
Id. at 970.
[36]
Metropolitan Bank and Trust Company, Inc. v. National Wages and Productivity Commission, G.R. No.
144322, 6 February 2007, 514 SCRA 346.
[37]
Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., G.R. No. 170656, 15
August 2007, 530 SCRA 341.
[38]
Id.
[39]
Otherwise known as the Philippine Regulation Commission Modernization Act of 2000.
[40]
Section 7(s).
[41]
Section 15.
[42]
Section 8, RIRR.
 Supreme Court
Manila
EN BANC

LOUIS BAROK C. BIRAOGO, G.R. No. 192935

Petitioner,

- versus -

THE PHILIPPINE TRUTH

COMMISSION OF 2010,
Respondent.
x-----------------------x
REP. EDCEL C. LAGMAN, G.R. No. 193036
REP. RODOLFO B. ALBANO, JR.,
REP. SIMEON A. Present:
DATUMANONG, and REP.
ORLANDO B. FUA, SR., CORONA, C.J.,
Petitioners, CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
EXECUTIVE SECRETARY SERENO, JJ.
PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND Promulgated:
MANAGEMENT SECRETARY
FLORENCIO B. ABAD, December 7, 2010
Respondents.
x -------------------------------------------------------------------------------------- x

DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them.

--- Justice Jose P. 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 theprimary 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 in Tileston v. Ullman. The same Court ruled that
for a private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of the
public.
 This Court adopted the direct injury test in our
jurisdiction. In People v. Vera, it held that the person who impugns
the validity of a statute must have a personal and substantial interest
in the case such that he has sustained, or will sustain direct injury as a
result. The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate, Manila Race Horse
Trainers Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v.
Felix. [Emphases included. Citations omitted]

Notwithstanding, the Court leans on the doctrine that the rule on

standing is a matter of procedure, hence, can be relaxed for nontraditional
plaintiffs like ordinary citizens, taxpayers, and legislators when the public
interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public
interest.[25]

Thus, in Coconut Oil Refiners Association, Inc. v. Torres,[26] the Court

held that in cases of paramount importance where serious constitutional
questions are involved, the standing requirements may be relaxed and a suit
may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the firstEmergency 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 oficioupon 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 of specific powers
of the President, it maintains intact what is traditionally considered
as within the scope of "executive power." Corollarily, the powers of
the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated.

It has been advanced that whatever power inherent in the

government that is neither legislative nor judicial has to be
executive. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are
faithfully executed. As stated above, the powers of the President are not
limited to those specific powers under the Constitution.[53] One of the
recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees.
This flows from the obvious need to ascertain facts and determine if laws
have been faithfully executed. Thus, in Department of Health v.
Camposano,[54] the authority of the President to issue Administrative Order
No. 298, creating an investigative committee to look into the administrative
charges filed against the employees of the Department of Health for the
anomalous purchase of medicines was upheld. In said case, it was ruled:

The Chief 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 ofOmbudsman 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 theequal 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 theprevious 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. While reasonable prioritization is permitted, it should not
be arbitrary lest it be struck down for being unconstitutional. In the often
quoted language of Yick Wo v. Hopkins,[92]

Though the law itself be fair on its face and impartial in

appearance, yet, if applied and administered by public
authority with an evil eye and an unequal hand, so as
practically to make unjust and illegal discriminations between
persons in similar circumstances, material to their rights, the
denial of equal justice is still within the prohibition of the
constitution. [Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its
scope is limited. The Court, however, is of the considered view that although
its focus is restricted, the constitutional guarantee of equal protection under
the laws should not in any way be circumvented. The Constitution is the
fundamental and paramount law of the nation to which all other laws must
conform and in accordance with which all private rights determined and all
public authority administered.[93] Laws that do not conform to the
Constitution should be stricken down for being unconstitutional.[94] While
the thrust of the PTC is specific, that is, for investigation of acts of graft and
corruption, Executive Order No. 1, to survive, must be read together with the
provisions of the Constitution. To exclude the earlier administrations in the
guise of substantial distinctions would only confirm the petitioners lament
that the subject executive order is only an adventure in partisan hostility. In
the case of US v. Cyprian,[95] it was written: A rather limited number of such
classifications have routinely been held or assumed to be arbitrary; those
include: race, national origin, gender, political activity or membership in a
political party, union activity or membership in a labor union, or more
generally the exercise of first amendment rights.

To reiterate, in order for a classification to meet the requirements of

constitutionality, it must include or embrace all persons who naturally
belong to the class.[96] Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number
included within a class, but must be of such a nature as to embrace all those
who may thereafter be in similar circumstances and conditions. Furthermore,
all who are in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from those of the
members of the class must be brought under the influence of the law and
treated by it in the same way as are the members of the class.[97]

The Court is not unaware that mere underinclusiveness is not fatal to

the validity of a law under the equal protection clause.[98] Legislation is not
unconstitutional merely because it is not all-embracing and does not include
all the evils within its reach.[99] It has been written that a regulation
challenged under the equal protection clause is not devoid of a rational
predicate simply because it happens to be incomplete.[100] In several
instances, the underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in future
legislations or regulations. These cases refer to the step by step
process.[101] With regard to equal protection claims, a legislature does not run
the risk of losing the entire remedial scheme simply because it fails, through
inadvertence or otherwise, to cover every evil that might conceivably have
been attacked.[102]

In Executive Order No. 1, however, there is no inadvertence. That the

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

To disprove petitioners contention that there is deliberate

discrimination, the OSG clarifies that the commission does not only confine
itself to cases of large scale graft and corruption committed during the
previous administration.[104] The OSG points to Section 17 of Executive
Order No. 1, which provides:
 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.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

See separate opinion (concurring)

RENATO C. CORONA
Chief Justice

See dissenting opinion Please see dissenting opinion

ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice

I certify that Justice Velasco left his concurring vote See concurring & dissenting
opinion
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice

See separate concurring opinion See separate opinion (concurring)

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice
See separate concurring opinion see my separate concurring opinion
DIOSDADO M. PERALTA LUCAS P. BERSAMIN
Associate Justice Associate Justice

See separate dissenting opinion

MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice

See separate opinion (concurring)

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate Justice Associate Justice

See dissenting opinion

MARIA LOURDES P.A. SERENO
Associate Justice
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that

the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

[1]
Angara v. The Electoral Commission, 63 Phil. 139, 158 (1936).
[2]
Bernas, The 1987 Constitution of the Republic of the Philippines; A Commentary, 1996 ed., p.
xxxiv, citing Miller, Lectures on the Constitution of the United States 64 (1893); 1 Schwartz, The Powers
of Government 1 (1963).
[3]
Cruz, Philippine Political law, 2002 ed. p. 12.
[4]
Id.
[5]
Resolution dated August 24, 2010 consolidating G.R. No. 192935 with G.R. No. 193036, rollo, pp.
87-88.
[6]
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of
a Senate and a House of Representatives, except to the extent reserved to the people by the provision on
initiative and referendum.
[7]
Biraogo Petition, p. 5, rollo, p. 7.
[8]
Salvador Laurel v. Hon. Desierto, G.R. No. 145368, April 12, 2002, citing F.R. Mechem, A Treatise On
The Law of Public Offices and Officers.
[9]
International Center for Transitional Justice, <http://www.ictj.org/en/tj/138.html> visited November 20,
2010.
[10]
Freeman, The Truth Commission and Procedural Fairness, 2006 Ed., p. 12, citing Hayner,
UnspeakableTruths: Facing the Challenge of Truth Commissions.
[11]
International Center for Transitional Justice, supra note 9.
[12]
Armando Doronila, Philippine Daily Inquirer, August 2, 2010.
<http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100802-284444/Truth-body-told-Take-no
prisoners> visited November 9, 2010.
[13]
Lagman Petition, pp. 50-52, rollo, pp. 58-60.
[14]
Rollo, pp. 111-216.
[15]
Otherwise known as the Administrative Code of 1987.
[16] Granting Continuing Authority To The President Of The Philippines To Reorganize The National
Government.
[17]
Otherwise known as the General Appropriations Act of 2010.
[18]
OSG Consolidated Comment, p. 33, rollo, p. 153, citing Uy v. Sandiganbayan, G.R. Nos.
105965-70, March 20, 2001, 354 SCRA 651, 660-661.
[19]
Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, 35; and Francisco
v.
House of Representatives, 460 Phil. 830, 842 (2003).
[20]
OSG Memorandum, p. 29, rollo, p. 348.
[21]
G.R. No. 113105, August 19, 1994, 235 SCRA 506, 520.
[22]
Supra note 19, citing Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA
623, 631-632.
[23]
OSG Memorandum, p. 30, rollo, p. 349.
[24]
G.R. No. 171396, May 3, 2006, 489 SCRA 160, 216-218.
[25]
Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, G.R.
No. 157870, November 3, 2008, 570 SCRA 410, 421; Tatad v. Secretary of the Department of Energy,
346 Phil 321 (1997); De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
[26]
G.R. 132527, July 29, 2005, 465 SCRA 47, 62.
[27]
84 Phil. 368, 373 (1949).
[28]
(1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality
of the government; and, (3) the lack of any other party with a more direct and specific interest in the
questions being raised.
[29]
G.R. No. 174697, July 8, 2010.
[30]
Kilosbayan,Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 139.
[31]
Biraogo Memorandum, p. 7, rollo, p. 69.
[32]
Id. at 6, rollo, p. 68.
[33]
Id. at 9, rollo, p. 71.
[34]
Id. at 10, rollo, p. 72.
[35]
Id. at 10-11, rollo pp. 72-73.
[36]
Lagman Memorandum, G.R. No 193036, pp. 10-11, rollo, pp. 270-271.
[37]
OSG Memorandum, p. 32, rollo, p. 351.
[38]
Id. at 33, rollo, p. 352.
[39]
OSG Consolidated Comment, p. 24, rollo, p. 144.
[40]
OSG Memorandum, pp. 38-39, rollo, pp. 357-358.
[41]
Citing Department of Health v. Camposano, G.R. No. 157684, April 27, 2005, 457 SCRA 438, 450.
[42]
Citing Evangelista v. Jarencio, No. L-27274, November 27, 1975, 68 SCRA 99, 104.
[43]
Citing Rodriguez v. Santos Diaz, No. L-19553, February 29, 1964, 10 SCRA 441, 445.
[44]
G.R. No. 166620, April 20, 2010.
[45]
Consolidated Comment, p. 45, rollo, p. 165.
[46]
G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718, also cited in Banda, supra.
[47]
The Veterans Federation of the Philippines v. Reyes, G. R. No. 155027, February 28, 2006, 483 SCRA
526, 564; DOTC v. Mabalot, 428 Phil. 154, 164-165 (2002); Mondano v. Silvosa, 97 Phil. 143 (1955).
[48]
OSG Memorandum, p. 56, rollo, p. 375.
[49]
G.R. No. 112745, October 16, 1997, 280 SCRA 713, 730.
[50]
TSN, September 28, 2010, pp. 205-207.
[51]
OSG Memorandum, p. 37, rollo, p.356.
[52]
G.R. 88211, September 15, 1989, 177 SCRA 688.
[53]
Id. at 691.
[54]
496 Phil. 886, 896-897 (2005).
[55]
Consolidated Comment, p. 48; rollo, p. 168.
[56]
Section 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
[57]
Ople v. Torres, 354 Phil. 948, 967 (1998).
[58]
Smart Communications, Inc. et al. v. National Telecommunications Commission, 456 Phil. 145, 156
(2003).
[59] G.R. No. 96681, December 2, 1991, 204 SCRA 483.
[60]
Id. at 492.
[61]
TSN, September 28, 2010, pp. 39-44; and OSG Memorandum, p. 67, rollo, p. 339.
[62]
OSG Consolidated Comment, p. 55, rollo, p. 175.
[63]
Id. at 56, rollo, p. 176.
[64]
Id.
[65]
G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339.
[66]
Lagman Petition, pp. 43, 50-52, rollo, pp. 51, 50-60.
[67]
Lagman Memorandum, G.R. 193036, pp. 28-29, rollo, pp. 347-348.
[68]
Lagman Petition, p. 31, rollo, p. 39.
[69]
Id. at 28-29, rollo, pp. 36-37.
[70]
Id. at 29, rollo, p. 37.
[71]
OSG Memorandum, p. 88; rollo, p. 407.
[72]
OSG Consolidated Comment. p. 68, rollo, p. 188.
[73]
OSG Memorandum, pp. 90-93, rollo, pp. 409-412.
[74]
The Philippine Judges Association v. Hon. Pardo, G.R. No. 105371, November 11, 1993, 227 SCRA
703, 711.
[75]
Id. at 712, citing Ichong v. Hernandez, 101 Phil. 1155 (1957); Sison, Jr. v. Ancheta, No. L-59431, July
25, 1984, 130 SCRA 654; Association of Small Landowners in the Philippines v. Secretary of Agrarian
Reform, G.R. No. 7842, July 14, 1989, 175 SCRA 343, 375.
[76]
Guino v. Senkowski, 54 F 3d 1050 (2d. Cir. 1995) cited in Am. Jur, 2d, Vol. 16 (b), p. 302.
[77]
Edward Valves, Inc. v. Wake Country, 343 N.C. 426 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
[78]
Lehr v. Robertson, 463 US 248, 103 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
[79]
See Columbus Bd. of Ed. v. Penick, 443 US 449 cited Am. Jur. 2d, Vol. 16 (b), pp. 316-317.
[80]
See Lombard v. State of La., 373 US 267 cited in Am. Jur. 2d, Vol. 16 (b), p. 316.
[81]
Beltran v. Secretary of Health, 512 Phil 560, 583 (2005).
[82]
Cruz, Constitutional Law, 2003 ed., p. 128.
[83]
McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16 (b), p. 367.
[84]
Cruz, Constitutional Law, 2003 ed., pp. 135-136.
[85]
No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974).
[86]
Basa v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas (FOITAF), No.
L-27113, November 19, 1974, 61 SCRA 93, 110-111; Anuncension v. National Labor Union, No.
L-26097, November 29, 1977, 80 SCRA 350, 372-373; Villegas v. Hiu Chiong Tsai Pao Ho, No.
L-29646, November 10, 1978, 86 SCRA 270, 275; Dumlao v. Comelec, No. L-52245, January 22, 1980,
95 SCRA 392, 404; Ceniza v. Comelec, No. L-52304, January 28, 1980, 95 SCRA 763,
772-773; Himagan v. People, G.R. No. 113811, October 7, 1994, 237 SCRA 538; The Conference of
Maritime Manning Agencies, Inc. v. POEA, G.R. No. 114714, April 21, 1995, 243 SCRA 666, 677; JMM
Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, August 5, 1996, 260 SCRA 319,
331332; and Tiu v. Court of Appeals, G.R. No. 127410, January 20, 1999, 301 SCRA 278, 288-289. See
also Ichong v. Hernandez, No. L-7995, 101 Phil. 1155 (1957); Vera v. Cuevas, Nos. L-33693-94, May 31,
1979, 90 SCRA 379, 388; and Tolentino v. Secretary of Finance, G.R. Nos. 115455, 115525, 115543,
115544, 115754, 115781, 115852, 115873, and 115931, August 25, 1994, 235 SCRA 630, 684.
[87] th
7 Whereas clause, Executive Order No. 1.
[88]
Cruz, Constitutional Law, 2003 ed., p. 128.
[89]
OSG, Memorandum, p. 89, rollo, p. 408.
[90] th
6 Whereas clause, Executive Order No. 1
[91]
Lee, Handbook of Legal Maxims, 2002 Ed., p.
[92]
118 US 357, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=118&invol=35 <accessed
on December 4, 2010>.
[93]
Macalintal v. COMELEC, G.R. No. 157013, July 10, 2003, 405 SCRA 614, pp. 631-632; Manila Prince
Hotel vs. GSIS, 335 Phil. 82, 101 (1997).
[94]
Id. at 632.
[95]
756 F. Supp. 388, N.. D. Ind., 1991, Jan 30, 1991, Crim No. HCR 90-42;
also http://in.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19910130_0000002.NIN.htm/qx <acc
essed December 5, 2010>
[96]
McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16 (b), p. 367.
[97] Martin v. Tollefson, 24 Wash. 2d 211 cited in Am. Jur. 2d, Vol. 16 (b), pp. 367-368 .
[98]
Nixon v. Administrator of General Services, 433 US 425 cited in Am. Jur. 2d, Vol. 16 (b), p. 371.
[99]
Hunter v. Flowers, 43 So 2d 435 cited in Am. Jur. 2d, Vol. 16 (b), p. 370.
[100]
Clements v. Fashing, 457 US 957.
[101]
See Am. Jur. 2d, Vol. 16 (b), pp. 370-371, as footnote (A state legislature may, consistently with the
Equal Protection Clause, address a problem one step at a time, or even select one phase of one field and
apply a remedy there, neglecting the others. [Jeffeson v. Hackney, 406 US 535].
[102]
McDonald v. Board of Election Comrs of Chicago, 394 US 802 cited in Am Jur 2d, Footnote No. 9.
[103]
Ricketts v. City of Hardford, 74 F. 3d 1397 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
[104]
OSG Consolidated Comment, p. 66, rollo, p.186.
[105]
Lagman Memorandum, p. 30; rollo, p. 118.
[106]
G.R. No. 86926, October 15, 1991; 202 SCRA 680.
[107]
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
[108]
Cruz, Philippine Political Law, 2002 ed., pp. 12-13.
[109]
Id.
[110]
Republic v. Southside Homeowners Association, G.R. No. 156951, September 22, 2006.
 United States v. Nixon, 418 U.S. 683 (1974)

United States v. Nixon

No. 73-1766

Argued July 8, 1974

Decided July 24, 1974*

418 U.S. 683

CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Following indictment alleging violation of federal statutes by certain staff members of

the White House and political supporters of the President, the Special Prosecutor filed a
motion under Fed.Rule Crim.Proc. 17(c) for a subpoena duces tecum for the production
before trial of certain tapes and documents relating to precisely identified conversations
and meetings between the President and others. The President, claiming executive
privilege, filed a motion to quash the subpoena. The District Court, after treating the
subpoenaed material as presumptively privileged, concluded that the Special Prosecutor
had made a sufficient showing to rebut the presumption and that the requirements of
Rule 17(c) had been satisfied. The court thereafter issued an order for an in
camera examination of the subpoenaed material, having rejected the President's
contentions (a) that the dispute between him and the Special Prosecutor was
nonjusticiable as an "intra-executive" conflict and (b) that the judiciary lacked authority
to review the President's assertion of executive privilege. The court stayed its order
pending appellate review, which the President then sought in the Court of Appeals. The
Special Prosecutor then filed in this Court a petition for a writ of certiorari before
judgment (No. 73-1766), and the President filed a cross-petition for such a writ
challenging the grand jury action (No. 73-1834). The Court granted both petitions.

Held:

1. The District Court's order was appealable as a "final" order under 28 U.S.C. 1291,
was therefore properly "in" the Court of Appeals, 28 U.S.C. 1254, when the petition for
certiorari before judgment was filed in this Court, and is now properly before this Court
for review. Although such an order is normally not final and subject to appeal, an
exception is made in a
"limited class of

Page 418 U. S. 684

cases where denial of immediate review would render impossible any review
whatsoever of an individual's claims,"

United States v. Ryan, 402 U. S. 530, 402 U. S. 533. Such an exception is proper in the
unique circumstances of this case, where it would be inappropriate to subject the
President to the procedure of securing review by resisting the order and inappropriate
to require that the District Court proceed by a traditional contempt citation in order to
provide appellate review. Pp. 418 U. S. 690-692.

2. The dispute between the Special Prosecutor and the President presents a justiciable
controversy. Pp. 418 U. S. 692-697.

(a) The mere assertion of an "intra-branch dispute," without more, does not defeat
federal jurisdiction. United States v. ICC,337 U. S. 426. P. 418 U. S. 693.

(b) The Attorney General, by regulation, has conferred upon the Special Prosecutor
unique tenure and authority to represent the United States, and has given the Special
Prosecutor explicit power to contest the invocation of executive privilege in seeking
evidence deemed relevant to the performance of his specially delegated duties. While
the regulation remains in effect, the Executive Branch is bound by it. United States ex rel.
Accardi v. Shaughnessy, 347 U. S. 260. Pp. 418 U. S. 694-696.

(c) The action of the Special Prosecutor within the scope of his express authority seeking
specified evidence preliminarily determined to be relevant and admissible in the
pending criminal case, and the President's assertion of privilege in opposition thereto,
present issues "of a type which are traditionally justiciable," United States v. ICC,
supra, at 337 U. S. 430, and the fact that both litigants are officers of the Executive
Branch is not a bar to justiciability. Pp. 418 U. S. 696-697.

3. From this Court's examination of the material submitted by the Special Prosecutor in
support of his motion for the subpoena, much of which is under seal, it is clear that the
District Court's denial of the motion to quash comported with Rule 17(c), and that the
Special Prosecutor has made a sufficient showing to justify a subpoena for production
before trial. Pp. 418 U. S. 697-702.

4. Neither the doctrine of separation of powers nor the generalized need for
confidentiality of high-level communications, without more, can sustain an absolute,
unqualified Presidential privilege of immunity from judicial process under all
circumstances. See, e.g., 5 U. S. Madison, 1 Cranch 137, 5 U. S. 177; Baker v. Carr, 369 U.
S. 186, 369 U. S. 211. Absent a claim of need to protect military, diplomatic, or sensitive
national security secrets, the confidentiality of

Page 418 U. S. 685

Presidential communications is not significantly diminished by producing material for a

criminal trial under the protected conditions of in camera inspection, and any absolute
executive privilege under Art. II of the Constitution would plainly conflict with the
function of the courts under the Constitution. Pp. 418 U. S. 703-707.

5. Although the courts will afford the utmost deference to Presidential acts in the
performance of an Art. II function,United States v. Burr, 25 F.Cas. 187, 190, 191-192 (No.
14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a
criminal trial is based, as it is here, not on the ground that military or diplomatic secrets
are implicated, but merely on the ground of a generalized interest in confidentiality, the
President's generalized assertion of privilege must yield to the demonstrated, specific
need for evidence in a pending criminal trial and the fundamental demands of due
process of law in the fair administration of criminal justice. Pp. 418 U. S. 707-713.

6. On the basis of this Court's examination of the record, it cannot be concluded that the
District Court erred in orderingin camera examination of the subpoenaed material,
which shall now forthwith be transmitted to the District Court. Pp.418 U. S. 713-714.

7. Since a president's communications encompass a vastly wider range of sensitive

material than would be true of an ordinary individual, the public interest requires that
Presidential confidentiality be afforded the greatest protection consistent with the fair
administration of justice, and the District Court has a heavy responsibility to ensure that
material involving Presidential conversations irrelevant to or inadmissible in the criminal
prosecution be accorded the high degree of respect due a President, and that such
material be returned under seal to its lawful custodian. Until released to the Special
Prosecutor, no in camera material is to be released to anyone. Pp. 418 U. S. 714-716.

No. 73-1766, 377 F.Supp. 1326, affirmed; No. 73-1834, certiorari dismissed as
improvidently granted.

BURGER, C.J., delivered the opinion of the Court, in which all Members joined except
REHNQUIST, J., who took no part in the consideration or decision of the cases.

Page 418 U. S. 686

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This litigation presents for review the denial of a motion, filed in the District Court on
behalf of the President of the United States, in the case of United States v.
Mitchell (D.C.Crim. No. 7110), to quash a third-party subpoena duces tecum issued by
the United States District Court for the District of Columbia, pursuant to Fed.Rule
Crim.Proc. 17(c). The subpoena directed the President to produce certain tape
recordings and documents relating to his conversations with aides and advisers. The
court rejected the President's claims of absolute executive privilege, of lack of
jurisdiction, and of failure to satisfy the requirements of Rule 17(c). The President
appealed to the Court of Appeals. We granted both the United States' petition for
certiorari before judgment (No. 7 1766), [Footnote 1] and also the President's
cross-petition for certiorari

Page 418 U. S. 687

before judgment (No. 73-1834), [Footnote 2] because of the public importance of the
issues presented and the need for their prompt resolution. 417 U.S. 927 and 960 (1974).

On March 1, 1974, a grand jury of the United States District Court for the District of
Columbia returned an indictment charging seven named individuals [Footnote 3] with
various offenses, including conspiracy to defraud the United States and to obstruct
justice. Although he was not designated as such in the indictment, the grand jury named
the President, among others, as an unindicted coconspirator. [Footnote 4] On April 18,
1974, upon motion of the Special

Page 418 U. S. 688

Prosecutor, see n 8, infra, a subpoena duces tecum was issued pursuant to Rule 17(c) to
the President by the United States District Court and made returnable on May 2, 1974.
This subpoena required the production, in advance of the September 9 trial date, of
certain tapes, memoranda, papers, transcripts, or other writings relating to certain
precisely identified meetings between the President and others. [Footnote 5] The
Special Prosecutor was able to fix the time, place, and persons present at these
discussions because the White House daily logs and appointment records had been
delivered to him. On April 30, the President publicly released edited transcripts of 43
conversations; portions of 20 conversations subject to subpoena in the present case
were included. On May 1, 1974, the President's counsel filed a "special appearance" and
a motion to quash the subpoena under Rule 17(c). This motion was accompanied by a
formal claim of privilege. At a subsequent hearing, [Footnote 6] further motions to
expunge the grand jury's action naming the President as an unindicted coconspirator
and for protective orders against the disclosure of that information were filed or raised
orally by counsel for the President.

On May 20, 1974, the District Court denied the motion to quash and the motions to
expunge and for protective orders. 377 F.Supp. 1326. It further ordered "the President
or any subordinate officer, official, or employee with custody or control of the
documents or
Page 418 U. S. 689

objects subpoenaed," id. at 1331, to deliver to the District Court, on or before May 31,
1974, the originals of all subpoenaed items, as well as an index and analysis of those
items, together with tape copies of those portions of the subpoenaed recordings for
which transcripts had been released to the public by the President on April 30. The
District Court rejected jurisdictional challenges based on a contention that the dispute
was nonjusticiable because it was between the Special Prosecutor and the Chief
Executive and hence "intra-executive" in character; it also rejected the contention that
the Judiciary was without authority to review an assertion of executive privilege by the
President. The court's rejection of the first challenge was based on the authority and
powers vested in the Special Prosecutor by the regulation promulgated by the Attorney
General; the court concluded that a justiciable controversy was presented. The second
challenge was held to be foreclosed by the decision in Nixon v. Sirica, 159 U.S.App.D.C.
58, 487 F.2d 700 (1973).

The District Court held that the judiciary, not the President, was the final arbiter of a
claim of executive privilege. The court concluded that, under the circumstances of this
case, the presumptive privilege was overcome by the Special Prosecutor'sprima
facie "demonstration of need sufficiently compelling to warrant judicial examination in
chambers. . . ." 377 F.Supp. at 1330. The court held, finally, that the Special Prosecutor
had satisfied the requirements of Rule 17(c). The District Court stayed its order pending
appellate review on condition that review was sought before 4 p.m., May 24. The court
further provided that matters filed under seal remain under seal when transmitted as
part of the record.

On May 24, 1974, the President filed a timely notice of appeal from the District Court
order, and the certified record from the District Court was docketed in the United

Page 418 U. S. 690

States Court of Appeals for the District of Columbia Circuit. On the same day, the
President also filed a petition for writ of mandamus in the Court of Appeals seeking
review of the District Court order.

Later on May 24, the Special Prosecutor also filed, in this Court, a petition for a writ of
certiorari before judgment. On May 31, the petition was granted with an expedited
briefing schedule. 417 U.S. 927. On June 6, the President filed, under seal, a
cross-petition for writ of certiorari before judgment. This cross-petition was granted
June 1, 1974, 417 U.S. 960, and the case was set for argument on July 8, 1974.

JURISDICTION
The threshold question presented is whether the May 20, 1974, order of the District
Court was an appealable order and whether this case was properly "in" the Court of
Appeals when the petition for certiorari was filed in this Cort. 28 U.S.C. 1254. The
Court of Appeals' jurisdiction under 28 U.S.C. 1291 encompasses only "final decisions
of the district courts." Since the appeal as timely filed and all other procedural
requirements were met, the petition is properly before this Court for consideration if
the District Court order was final. 28 U.S.C. 1254(1), 2101(e).

The finality requirement of 28 U.S.C. 1291 embodies a strong congressional policy

against piecemeal reviews, and against obstructing or impeding an ongoing judicial
proceeding by interlocutory appeals. See, e.g., Cobbledick v. United States, 309 U. S.
323, 309 U. S. 324-326 (1940). This requirement ordinarily promotes judicial efficiency
and hastens the ultimate termination of litigation. In applying this principle to an order
denying a motion to quash and requiring the production of evidence pursuant

Page 418 U. S. 691

to a subpoena duces tecum, it has been repeatedly held that the order is not final, and
hence not appealable. United States v. Ryan, 402 U. S. 530, 402 U. S.
532 (1971); Cobbledick v. United States, supra; Alexander v. United States, 201 U. S.
117 (1906). This Court has

"consistently held that the necessity for expedition in the administration of the criminal
law justifies putting one who seeks to resist the production of desired information to a
choice between compliance with a trial court's order to produce prior to any review of
that order, and resistance to that order with the concomitant possibility of an
adjudication of contempt if his claims are rejected on appeal."

United States v. Ryan, supra, at 402 U. S. 533.

The requirement of submitting to contempt, however, is not without exception, and in

some instances the purposes underlying the finality rule require a different result. For
example, in Perlman v. United States, 247 U. S. 7 (1918), a subpoena had been directed
to a third party requesting certain exhibits; the appellant, who owned the exhibits,
sought to raise a claim of privilege. The Court held an order compelling production was
appealable because it was unlikely that the third party would risk a contempt citation in
order to allow immediate review of the appellant's claim of privilege. Id. at247 U. S.
12-13. That case fell within the "limited class of cases where denial of immediate review
would render impossible any review whatsoever of an individual's claims." United States
v. Ryan, supra, at 402 U. S. 533.

Here too, the traditional contempt avenue to immediate appeal is peculiarly

inappropriate due to the unique setting in which the question arises. To require a
President of the United States to place himself in the posture of disobeying an order of a
court merely to trigger the procedural mechanism for review of the ruling would be

Page 418 U. S. 692

unseemly, and would present an unnecessary occasion for constitutional confrontation

between two branches of the Government. Similarly, a federal judge should not be
placed in the posture of issuing a citation to a President simply in order to invoke review.
The issue whether a President can be cited for contempt could itself engender
protracted litigation, and would further delay both review on the merits of his claim of
privilege and the ultimate termination of the underlying criminal action for which his
evidence is sought. These considerations lead us to conclude that the order of the
District Court was an appealable order. The appeal from that order was therefore
properly "in" the Court of Appeals, and the case is now properly before this Court on the
writ of certiorari before judgment. 28 U.S.C. 1254; 28 U.S.C. 2101(e).Gay v. Ruff, 292
U. S. 25, 292 U. S. 30 (1934). [Footnote 7]

II

JUSTICIABILITY

In the District Court, the President's counsel argued that the court lacked jurisdiction to
issue the subpoena because the matter was an intra-branch dispute between a
subordinate and superior officer of the Executive Branch, and hence not subject to
judicial resolution. That argument has been renewed in this Court with emphasis on the
contention that the dispute does not present a "case" or "controversy" which can be
adjudicated in the federal courts. The President's counsel argues that the federal courts
should not intrude into areas committed to the other branches of Government.

Page 418 U. S. 693

He views the present dispute as essentially a "jurisdictional" dispute within the

Executive Branch which he analogizes to a dispute between two congressional
committees. Since the Executive Branch has exclusive authority and absolute discretion
to decide whether to prosecute a case, Confiscation Cases, 7 Wall. 454 (1869); United
States v. Cox, 342 F.2d 167, 171 (CA5), cert. denied sub nom. Cox v. Hauber, 381 U.S.
935 (1965), it is contended that a President's decision is final in determining what
evidence is to be used in a given criminal case. Although his counsel concedes that the
President ha delegated certain specific powers to the Special Prosecutor, he has not

"waived nor delegated to the Special Prosecutor the President's duty to claim privilege
as to all materials . . . which fall within the President's inherent authority to refuse to
disclose to any executive officer."
Brief for the President 42. The Special Prosecutor's demand for the items therefore
presents, in the view of the President's counsel, a political question under Baker v.
Carr, 369 U. S. 186 (1962), since it involves a "textually demonstrable" grant of power
under Art. II.

The mere assertion of a claim of an "intra-branch dispute," without more, has never
operated to defeat federal jurisdiction; justiciability does not depend on such a surface
inquiry. In United States v. ICC, 337 U. S. 426 (1949), the Court observed, "courts must
look behind names that symbolize the parties to determine whether a justiciable case or
controversy is presented." Id. at 337 U. S. 430. See also Powell v. McCormack, 395 U. S.
486 (1969); ICC v. Jersey City, 322 U. S. 503 (1944); United States ex rel. Chapman v.
FPC, 345 U. S. 153 (1953); Secretary of Agriculture v. United States, 347 U. S.
645(1954); FMB v. Isbrandtsen Co., 356 U. S. 481, 356 U. S. 483 n. 2 (1958); United
States v. Marine Bancorporation, ante, p. 418 U. S. 602; and United States v. Connecticut
National Bank, ante, p. 418 U. S. 656.

Page 418 U. S. 694

Our starting point is the nature of the proceeding for which the evidence is sought --
here, a pending criminal prosecution. It is a judicial proceeding in a federal court alleging
violation of federal laws, and is brought in the name of the United States as
sovereign. Berger v. United States, 295 U. S. 78, 295 U. S. 88 (1935). Under the authority
of Art. II, 2, Congress has vested in the Attorney General the power to conduct the
criminal litigation of the United States Government. 28 U.S.C. 516. It has also vested in
him the power to appoint subordinate officers to assist him in the discharge of his duties.
28 U.S.C. 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General
has delegated the authority to represent the United States in these particular matters to
a Special Prosecutor with unique authority and tenure. [Footnote 8] The regulation gives
the

Page 418 U. S. 695

Special Prosecutor explicit power to contest the invocation of executive privilege in the
process of seeking evidence deemed relevant to the performance of these specially
delegated duties. [Footnote 9] 38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805.

So long as this regulation is extant, it has the force of law. In United States ex rel. Accardi
v. Shaughnessy, 347 U. S. 260(1954), regulations of the Attorney General delegated
certain of his discretionary powers to the Board

Page 418 U. S. 696

of Immigration Appeals and required that Board to exercise its own discretion on
appeals in deportation cases. The Court held that, so long as the Attorney General's
regulations remained operative, he denied himself the authority to exercise the
discretion delegated to the Board even though the original authority was his and he
could reassert it by amending the regulations. Service v. Dulles, 354 U. S. 363, 354 U. S.
388 (1957), and Vitarelli v. Seaton, 359 U. S. 535 (1959), reaffirmed the basic holding
of Accardi.

Here, as in Accardi, it is theoretically possible for the Attorney General to amend or

revoke the regulation defining the Special Prosecutor's authority. But he has not done so.
[Footnote 10] So long as this regulation remains in force, the Executive Branch is bound
by it, and indeed the United States, as the sovereign composed of the three branches, is
bound to respect and to enforce it. Moreover, the delegation of authority to the Special
Prosecutor in this case is not an ordinary delegation by the Attorney General to a
subordinate officer: with the authorization of the President, the Acting Attorney General
provided in the regulation that the Special Prosecutor was not to be removed without
the "consensus" of eight designated leaders of Congress. N 8, supra.

The demands of and the resistance to the subpoena present an obvious controversy in
the ordinary sense, but that alone is not sufficient to meet constitutional standards. In
the constitutional sense, controversy means more than disagreement and conflict;
rather it means the kind of controversy courts traditionally resolve. Here

Page 418 U. S. 697

at issue is the production or nonproduction of specified evidence deemed by the Special

Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one
official of the Executive Branch within the scope of his express authority; it is resisted by
the Chief Executive on the ground of his duty to preserve the confidentiality of the
communications of the President. Whatever the correct answer on the merits, these
issues are "of a type which are traditionally justiciable." United States v. ICC, 337 U.S.
at 337 U. S. 430. The independent Special Prosecutor, with his asserted need for the
subpoenaed material in the underlying criminal prosecution, is opposed by the
President, with his steadfast assertion of privilege against disclosure of the material. This
setting assures there is

"that concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions."

Baker v. Carr, 369 U.S. at 369 U. S. 204. Moreover, since the matter is one arising in the
regular course of a federal criminal prosecution, it is within the traditional scope of Art.
III power. Id. at 369 U. S. 198.

In light of the uniqueness of the setting in which the conflict arises, the fact that both
parties are officer of the Executive Branch cannot be viewed as a barrier to justiciability.
It would be inconsistent with the applicable law and regulation, and the unique facts of
this case, to conclude other than that the Special Prosecutor has standing to bring this
action, and that a justiciable controversy is presented for decision.

III

RULE 17(c)

The subpoena duces tecum is challenged on the ground that the Special Prosecutor
failed to satisfy the requirements of Fed.Rule Crim.Proc. 17(c), which governs

Page 418 U. S. 698

the issuance of subpoenas duces tecum in federal criminal proceedings. If we sustained

this challenge, there would be no occasion to reach the claim of privilege asserted with
respect to the subpoenaed material. Thus, we turn to the question whether the
requirements of Rule 17(c) have been satisfied. See Arkansas Louisiana Gas Co. v. Dept.
of Public Utilities, 304 U. S. 61, 304 U. S. 64 (1938); Ashwander v. TVA, 297 U. S. 288, 297
U. S. 346-347 (1936) (Brandeis, J., concurring).

Rule 17(c) provides:

"A subpoena may also command the person to whom it is directed to produce the books,
papers, documents or other objects designated therein. The court on motion made
promptly may quash or modify the subpoena if compliance would be unreasonable or
oppressive. The court may direct that books, papers, documents or objects designated
in the subpoena be produced before the court at a time prior to the trial or prior to the
time when they are to be offered in evidence and may upon their production permit the
books, papers, documents or objects or portions thereof to be inspected by the parties
and their attorneys."

A subpoena for documents may be quashed if their production would be "unreasonable

or oppressive," but not otherwise. The leading case in this Court interpreting this
standard is Bowman Dairy Co. v. United States, 341 U. S. 214(1951). This case recognized
certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it
was not intended to provide a means of discovery for criminal cases, id. at 341 U. S. 220;
(2) its chief innovation was to expedite the trial by providing a time and place before
trial for the inspection of

Page 418 U. S. 699

subpoenaed materials, [Footnote 11] ibid. As both parties agree, cases decided in the
wake of Bowman have generally followed Judge Weinfeld's formulation in United States
v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952), as to the required showing. Under this test, in
order to require production prior to trial, the moving party must show: (1) that the
documents are evidentiary [Footnote 12] and relevant; (2) that they are not otherwise
procurable reasonably in advance of trial by exercise of due diligence; (3) that the party
cannot properly prepare for trial without such production and inspection in advance of
trial, and that the failure to obtain such inspection may tend unreasonably to delay the
trial; and (4) that

Page 418 U. S. 700

the application is made in good faith and is not intended as a general "fishing
expedition."

Against this background, the Special Prosecutor, in order to carry his burden, must clear
three hurdles: (1) relevancy; (2) admissibility; (3) specificity. Our own review of the
record necessarily affords a less comprehensive view of the total situation than was
available to the trial judge, and we are unwilling to conclude that the District Court erred
in the evaluation of the Special Prosecutor's showing under Rule 17(c). Our conclusion is
based on the record before us, much of which is under seal. Of course, the contents of
the subpoenaed tapes could not at that stage be described fully by the Special
Prosecutor, but there was a sufficient likelihood that each of the tapes contains
conversations relevant to the offenses charged in the indictment. United States v.
Gross, 24 F.R.D. 138 (SDNY 1959). With respect to many of the tapes, the Special
Prosecutor offered the sworn testimony or statements of one or more of the
participants in the conversations as to what was said at the time. As for the remainder
of the tapes, the identity of the participants and the time and place of the conversations,
taken in their total context, permit a rational inference that at least part of the
conversations relate to the offenses charged in the indictment.

We also conclude there was a sufficient preliminary showing that each of the
subpoenaed tapes contains evidence admissible with respect to the offenses charged in
the indictment. The most cogent objection to the admissibility of the taped
conversations here at issue is that they are a collection of out-of-court statements by
declarants who will not be subject to cross-examination, and that the statements are
therefore inadmissible hearsay. Here, however, most of the tapes apparently contain
conversations

Page 418 U. S. 701

to which one or more of the defendant named in the indictment were party. The
hearsay rule does not automatically bar all out-of-court statements by a defendant in a
criminal case. [Footnote 13] Declarations by one defendant may also be admissible
against other defendant upon a sufficient showing, by independent evidence, [Footnote
14] of a conspiracy among one or more other defendants and the declarant and if the
declarations at issue were in furtherance of that conspiracy. The same is true of
declarations of coconspirators who are not defendants in the case on trial. Dutton v.
Evans,400 U. S. 74, 400 U. S. 81 (1970). Recorded conversations may also be admissible
for the limited purpose of impeaching the credibility of any defendant who testifies or
any other coconspirator who testifies. Generally, the need for evidence to impeach
witnesses is insufficient to require its production in advance of trial. See, e.g., United
States v. Carter, 15 F.R.D. 367,

Page 418 U. S. 702

371 (DC 1954). Here, however, there are other valid potential evidentiary uses for the
same material, and the analysis and possible transcription of the tapes may take a
significant period of time. Accordingly, we cannot conclude that the District Court erred
in authorizing the issuance of the subpoena duces tecum.

Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the

sound discretion of the trial court, since the necessity for the subpoena most often turns
upon a determination of factual issues. Without a determination of arbitrariness or that
the trial court finding was without record support, an appellate court will not ordinarily
disturb a finding that the applicant for a subpoena complied with Rule 17(c). See, e.g.,
Sue v. Chicago Transit Authority, 279 F.2d 416, 419 (CA7 1960); Shotkin v. Nelson, 146
F.2d 402 (CA10 1944).

In a case such as this, however, where a subpoena is directed to a President of the

United States, appellate review, in deference to a coordinate branch of Government,
should be particularly meticulous to ensure that the standards of Rule 17(c) have been
correctly applied. United States v. Burr, 25 F.Cas. 30, 34 (No. 14,692d) (CC Va. 1807).
From our examination of the materials submitted by the Special Prosecutor to the
District Court in support of his motion for the subpoena, we are persuaded that the
District Court's denial of the President's motion to quash the subpoena was consistent
with Rule 17(c). We also conclude that the Special Prosecutor has made a sufficient
showing to justify a subpoena for production before trial. The subpoenaed materials are
not available from any other source, and their examination and processing should not
await trial in the circumstances shown. Bowman Dairy Co. v. United States, 341 U. S.
214 (1951); United States v. Iozia, 13 F.R.D. 335 (SDNY 1952).

Page 418 U. S. 703

IV

THE CLAIM OF PRIVILEGE A

Having determined that the requirements of Rule 17(c) were satisfied, we turn to the
claim that the subpoena should be quashed because it demands "confidential
conversations between a President and his close advisors that it would be inconsistent
with the public interest to produce." App. 48a. The first contention is a broad claim that
the separation of powers doctrine precludes judicial review of a President's claim of
privilege. The second contention is that, if he does not prevail on the claim of absolute
privilege, the court should hold as a matter of constitutional law that the privilege
prevails over the subpoena duces tecum.

In the performance of assigned constitutional duties, each branch of the Government

must initially interpret the Constitution, and the interpretation of its powers by any
branch is due great respect from the others. The President's counsel, as we have noted,
reads the Constitution as providing an absolute privilege of confidentiality for all
Presidential communications. Many decisions of this Court, however, have
unequivocally reaffirmed the holding of Marbury v. Madison,1 Cranch 137 (1803), that
"[i]t is emphatically the province and duty of the judicial department to say what the law
is." Id.at 5 U. S. 177. No holding of the Court has defined the scope of judicial power
specifically relating to the enforcement of a subpoena for confidential Presidential
communications for use in a criminal prosecution, but other exercises of power by the
Executive Branch and the Legislative Branch have been found invalid as in conflict with
the Constitution. Powell v. McCormack, 395 U. S. 486 (1969); Youngstown Sheet & Tube
Co. v. Sawyer, 343 U. S. 579 (1952). In a

Page 418 U. S. 704

series of cases, the Court interpreted the explicit immunity conferred by express
provisions of the Constitution on Members of the House and Senate by the Speech or
Debate Clause, U.S.Const. Art. I, 6. Doe v. McMillan, 412 U. S. 306(1973); Gravel v.
United States, 408 U. S. 606 (1972); United States v. Brewster, 408 U. S.
501 (1972); United States v. Johnson383 U. S. 169 (1966). Since this Court has
consistently exercised the power to construe and delineate claims arising under express
powers, it must follow that the Court has authority to interpret claims with respect to
powers alleged to derive from enumerated powers.

Our system of government

"requires that federal courts on occasion interpret the Constitution in a manner at

variance with the construction given the document by another branch."

Powell v. McCormack, supra, at 395 U. S. 549. And in Baker v. Carr, 369 U.S. at 369 U. S.
211, the Court stated:

"Deciding whether a matter has in any measure been committed by the Constitution to
another branch of government, or whether the action of that branch exceeds whatever
authority has been committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate interpreter of the
Constitution."
Notwithstanding the deference each branch must accord the others, the "judicial Power
of the United States" vested in the federal courts by Art. III, 1, of the Constitution can
no more be shared with the Executive Branch than the Chief Executive, for example, can
share with the Judiciary the veto power, or the Congress share with the Judiciary the
power to override a Presidential veto. Any other conclusion would be contrary to the
basic concept of separation of powers and the checks and balances that flow from the
scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed.

Page 418 U. S. 705

1938). We therefore reaffirm that it is the province and duty of this Court "to say what
the law is" with respect to the claim of privilege presented in this case. Marbury v.
Madison, supra at 5 U. S. 177.

In support of his claim of absolute privilege, the President's counsel urges two grounds,
one of which is common to all governments and one of which is peculiar to our system
of separation of powers. The first ground is the valid need for protection of
communications between high Government officials and those who advise and assist
them in the performance of their manifold duties; the importance of this confidentiality
is too plain to require further discussion. Human experience teaches that those who
expect public dissemination of their remarks may well temper candor with a concern for
appearances and for their own interests to the detriment of the decisionmaking process.
[Footnote 15] Whatever the nature of the privilege of confidentiality of Presidential
communications in the exercise of Art. II powers, the privilege can be said to derive from
the supremacy of each branch within its own assigned area of constitutional duties.
Certain powers and privileges flow from the nature of enumerated powers; [Footnote
16] the protection of the confidentiality of

Page 418 U. S. 706

Presidential communications has similar constitutional underpinnings.

The second ground asserted by the President's counsel in support of the claim of
absolute privilege rests on the doctrine of separation of powers. Here it is argued that
the independence of the Executive Branch within its own sphere,Humphrey's Executor v.
United States, 295 U. S. 602, 295 U. S. 629-630 (1935); Kilbourn v. Thompson, 103 U. S.
168, 103 U. S. 190-191 (1881), insulates a President from a judicial subpoena in an
ongoing criminal prosecution, and thereby protects confidential Presidential
communications.

However, neither the doctrine of separation of powers nor the need for confidentiality
of high-level communications, without more, can sustain an absolute, unqualified
Presidential privilege of immunity from judicial process under all circumstances. The
President's need for complete candor and objectivity from advisers calls for great
deference from the courts. However, when the privilege depends solely on the broad,
undifferentiated claim of public interest in the confidentiality of such conversations, a
confrontation with other values arises. Absent a claim of need to protect military,
diplomatic, or sensitive national security secrets, we find it difficult to accept the
argument that even the very important interest in confidentiality of Presidential
communications is significantly diminished by production of such material for in
camera inspection with all the protection that a district court will be obliged to provide.

Page 418 U. S. 707

The impediment that an absolute, unqualified privilege would place in the way of the
primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions
would plainly conflict with the function of the courts under Art. III. In designing the
structure of our Government and dividing and allocating the sovereign power among
three co-equal branches, the Framers of the Constitution sought to provide a
comprehensive system, but the separate powers were not intended to operate with
absolute independence.

"While the Constitution diffuses power the better to secure liberty, it also contemplate
that practice will integrate the dispersed powers into a workable government. It enjoins
upon its branches separateness but interdependence, autonomy but reciprocity."

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 343 U. S. 635 (Jackson, J.,
concurring). To read the Art. II powers of the President as providing an absolute
privilege as against a subpoena essential to enforcement of criminal statutes on no
more than a generalized claim of the public interest in confidentiality of nonmilitary and
nondiplomatic discussions would upset the constitutional balance of "a workable
government" and gravely impair the role of the courts under Art. III.

C.

Since we conclude that the legitimate needs of the judicial process may outweigh
Presidential privilege, it is necessary to resolve those competing interests in a manner
that preserves the essential functions of each branch. The right and indeed the duty to
resolve that question does not free the Judiciary from according high respect to the
representations made on behalf of the President. United States v. Burr, 25 F.Cas. 187,
190, 191-192 (No. 14,694) (CC Va. 1807).

Page 418 U. S. 708

The expectation of a President to the confidentiality of his conversations and

correspondence, like the claim of confidentiality of judicial deliberations, for example,
has all the values to which we accord deference for the privacy of all citizens and, added
to those values, is the necessity for protection of the public interest in candid, objective,
and even blunt or harsh opinions in Presidential decisionmaking. A President and those
who assist him must be free to explore alternatives in the process of shaping policies
and making decisions, and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of Government, and
inextricably rooted in the separation of powers under the Constitution. [Footnote 17]
In Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973), the Court of Appeals held
that such Presidential communications are "presumptively privileged," id. at 75, 487
F.2d at 717, and this position is accepted by both parties in the present litigation. We
agree with Mr. Chief Justice Marshall's observation, therefore, that "[i]n no case of his
kind would a court be required to proceed against the president as against an ordinary
individual." United States v. Burr, 25 F.Cas. at 192.

But this presumptive privilege must be considered in light of our historic commitment to
the rule of law. This

Page 418 U. S. 709

is nowhere more profoundly manifest than, in our view, that "the twofold aim [of
criminal justice] is that guilt shall not escape or innocence suffer." Berger v. United
States, 295 U.S. at 295 U. S. 88. We have elected to employ an adversary system of
criminal justice in which the parties contest all issues before a court of law. The need to
develop all relevant facts in the adversary system is both fundamental and
comprehensive. The ends of criminal justice would be defeated if judgments were to be
founded on a partial or speculative presentation of the facts. The very integrity of the
judicial system and public confidence in the system depend on full disclosure of all the
facts, within the framework of the rules of evidence. To ensure that justice is done, it is
imperative to the function of courts that compulsory process be available for the
production of evidence needed either by the prosecution or by the defense.

Only recently the Court restated the ancient proposition of law, albeit in the context of a
grand jury inquiry, rather than a trial,

"that 'the public . . . has a right to every man's evidence,' except for those persons
protected by a constitutional, common law, or statutory privilege, United States v.
Bryan, 339 U.S. [323, 339 U. S. 331 (1950)]; Blackmer v. United States, 284 U. S. 421, 284
U. S. 438 (1932). . . ."

Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 688 (1972). The privileges referred to by the
Court are designed to protect weighty and legitimate competing interests. Thus, the
Fifth Amendment to the Constitution provides that no man "shall be compelled in any
criminal case to be a witness against himself." And, generally, an attorney or a priest
may not be required to disclose what has been revealed in professional confidence.
These and other interests are recognized in law by privileges

Page 418 U. S. 710

against forced disclosure, established in the Constitution, by statute, or at common law.

Whatever their origins, these exceptions to the demand for every man's evidence are
not lightly created nor expansively construed, for they are in derogation of the search
for truth. [Footnote 18]

In this case, the President challenges a subpoena served on him as a third party
requiring the production of materials for use in a criminal prosecution; he does so on
the claim that he has a privilege against disclosure of confidential communications. He
does not place his claim of privilege on the ground they are military or diplomatic
secrets. As to these areas of Art. II duties, the courts have traditionally shown the
utmost deference to Presidential responsibilities. In C. & S. Air Lines v. Waterman S.S.
Corp., 333 U. S. 103, 333 U. S. 111 (1948), dealing with Presidential authority involving
foreign policy considerations, the Court said:

"The President, both as Commander-in-Chief and as the Nation's organ for foreign
affairs, has available intelligence services whose reports are not and ought not to be
published to the world. It would be intolerable that courts, without the relevant
information, should review and perhaps nullify actions of the Executive taken on
information properly held secret."

In United States v. Reynolds, 345 U. S. 1 (1953), dealing

Page 418 U. S. 711

with a claimant's demand for evidence in a Tort Claims Act case against the Government,
the Court said:

"It may be possible to satisfy the court, from all the circumstances of the case, that
there is a reasonable danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not be divulged. When this is
the case, the occasion for the privilege is appropriate, and the court should not
jeopardize the security which the privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone, in chambers."

Id. at 345 U. S. 10. No case of the Court, however, has extended this high degree of
deference to a President's generalized interest in confidentiality. Nowhere in the
Constitution, as we have noted earlier, is there any explicit reference to a privilege of
confidentiality, yet to the extent this interest relates to the effective discharge of a
President's powers, it is constitutionally based.
The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal
trial the right "to be confronted with the witnesses against him" and "to have
compulsory process for obtaining witnesses in his favor." Moreover, the Fifth
Amendment also guarantees that no person shall be deprived of liberty without due
process of law. It is the manifest duty of the courts to vindicate those guarantees, and to
accomplish that it is essential that all relevant and admissible evidence be produced.

In this case, we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of the President's responsibilities against
the inroads of such a privilege on the fair

Page 418 U. S. 712

administration of criminal justice. [Footnote 19] The interest in preserving

confidentiality is weighty indeed, and entitled to great respect. However, we cannot
conclude that advisers will be moved to temper the candor of their remarks by the
infrequent occasions of disclosure because of the possibility that such conversations will
be called for in the context of a criminal prosecution. [Footnote 20]

On the other hand, the allowance of the privilege to withhold evidence that is
demonstrably relevant in a criminal trial would cut deeply into the guarantee of due
process of law and gravely impair the basic function of the court. A President's
acknowledged need for confidentiality

Page 418 U. S. 713

in the communications of his office is general in nature, whereas the constitutional need
for production of relevant evidence in a criminal proceeding is specific and central to the
fair adjudication of a particular criminal case in the administration of justice. Without
access to specific facts, a criminal prosecution may be totally frustrated. The President's
broad interest in confidentiality of communications will not be vitiated by disclosure of a
limited number of conversations preliminarily shown to have some bearing on the
pending criminal cases.

We conclude that, when the ground for asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of due process of law in
the fair administration of criminal justice. The generalized assertion of privilege must
yield to the demonstrated, specific need for evidence in a pending criminal trial.

D
We have earlier determined that the District Court did not err in authorizing the
issuance of the subpoena. If a President concludes that compliance with a subpoena
would be injurious to the public interest, he may properly, as was done here, invoke a
claim of privilege on the return of the subpoena. Upon receiving a claim of privilege
from the Chief Executive, it became the further duty of the District Court to treat the
subpoenaed material as presumptively privileged and to require the Special Prosecutor
to demonstrate that the Presidential material was "essential to the justice of the
[pending criminal] case." United States v. Burr, 25 F.Cas. at 192. Here, the District Court
treated the material as presumptively privileged, proceeded to find that the Special

Page 418 U. S. 714

Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in
camera examination of the subpoenaed material. On the basis of our examination of the
record, we are unable to conclude that the District Court erred in ordering the
inspection. Accordingly, we affirm the order of the District Court that subpoenaed
materials be transmitted to that court. We now turn to the important question of the
District Court's responsibilities in conducting thein camera examination of Presidential
materials or communications delivered under the compulsion of the subpoenaduces
tecum.

Enforcement of the subpoena duces tecum was stayed pending this Court's resolution of
the issues raised by the petitions for certiorari. Those issues now having been disposed
of, the matter of implementation will rest with the District Court.

"[T]he guard, furnished to [the President] to protect him from being harassed by
vexatious and unnecessary subpoenas, is to be looked for in the conduct of a [district]
court after those subpoenas have issued; not in any circumstance which is to precede
their being issued."

United States v. Burr, 25 F.Cas. at 34. Statements that meet the test of admissibility and
relevance must be isolated; all other material must be excised. At this stage, the District
Court is not limited to representations of the Special Prosecutor as to the evidence
sought by the subpoena; the material will be available to the District Court. It is
elementary that in camera inspection of evidence is always a procedure calling for
scrupulous protection against any release or publication of material not found by the
court, at that stage, probably admissible in evidence and relevant to the issues of the
trial for which it is sought. That being true of an ordinary situation, it is obvious that the
District Court has

Page 418 U. S. 715

a very heavy responsibility to see to it that Presidential conversations, which are either
not relevant or not admissible, are accorded that high degree of respect due the
President of the United States. Mr. Chief Justice Marshall, sitting as a trial judge in
the Burr case, supra, was extraordinarily careful to point out that

"[i]n no case of this kind would a court be required to proceed against the president as
against an ordinary individual."

25 F.Cas. at 192. Marshall's statement cannot be read to mean in any sense that a
President is above the law, but relates to the singularly unique role under Art. II of a
President's communications and activities, related to the performance of duties under
that Article. Moreover, a President's communications and activities encompass a vastly
wider range of sensitive material than would be true of any "ordinary individual." It is
therefore necessary [Footnote 21] in the public interest to afford Presidential
confidentiality the greatest protection consistent with the fair administration of justice.
The need for confidentiality even as to idle conversations with associates in which casual
reference might be made concerning political leaders within the country or foreign
statesmen is too obvious to call for further treatment. We have no doubt that the
District Judge will at all times accord to Presidential records that high degree of
deference suggested in United States v. Burr, supra, and will discharge his responsibility
to see to

Page 418 U. S. 716

it that, until released to the Special Prosecutor, no in camera material is revealed to

anyone. This burden applies with even greater force to excised material; once the
decision is made to excise, the material is restored to its privileged status, and should be
returned under seal to its lawful custodian.

Since this matter came before the Court during the pendency of a criminal prosecution,
and on representations that time is of the essence, the mandate shall issue forthwith.

Affirmed.

MR. JUSTICE REHNQUIST took no part in the consideration or decision of these cases.

* Together with No. 73-1834, Nixon, President of the United States v. United States, also
on certiorari before judgment to the same court.

[Footnote 1]

See 28 U.S.C. 1254(1) and 2101(e) and our Rule 20. See, e.g., Youngstown Sheet &
Tube Co. v. Sawyer, 343 U. S. 579 (1952);United States v. United Mine Workers, 330 U. S.
258 (1947); Carter v. Carter Coal Co, 298 U. S. 238 (1936); Rickert Rice Mills v.
Fontenot, 297 U. S. 110 (1936); Railroad Retirement Board v. Alton R. Co., 295 U. S.
330 (1935); Norman v. Baltimore & Ohio R. Co, 294 U. S. 240 (1935)

[Footnote 2]

The cross-petition in No. 73-1824 raised the issue whether the grand jury acted within
its authority in naming the President as an unindicted coconspirator. Since we find
resolution of this issue unnecessary to resolution of the question whether the claim of
privilege is to prevail, the cross-petition for certiorari is dismissed as improvidently
granted and the remainder of this opinion is concerned with the issues raised in No.
73-1766. On June 19, 1974, the President's counsel moved for disclosure and transmittal
to this Court of all evidence presented to the grand jury relating to its action in naming
the President as an unindicted coconspirator. Action on this motion was deferred
pending oral argument of the case, and is now denied.

[Footnote 3]

The seven defendants were John N. Mitchell, H. R. Haldeman, John D. Ehrlichman,

Charles W. Colson, Robert C. Mardian, Kenneth W. Parkinson, and Gordon Strachan.
Each has occupied either a position of responsibility on the White House Staff or a
position with the Committee for the Re-election of the President. Colson entered a
guilty plea on another charge, and is no longer a defendant.

[Footnote 4]

The President entered a special appearance in the District Court on June 6 and
requested that court to lift its protective order regarding the naming of certain
individuals as coconspirators and to any additional extent deemed appropriate by the
Court. This motion of the President was based on the ground that the disclosures to the
news media made the reasons for continuance of the protective order no longer
meaningful. On June 7, the District Court removed its protective order and, on June 10,
counsel for both parties jointly moved this Court to unseal those parts of the record
which related to the action of the grand jury regarding the President. After receiving a
statement in opposition from the defendants, this Court denied that motion on June 15,
1974, except for the grand jury's immediate finding relating to the status of the
President as an unindicted coconspirator. 417 U.S. 960.

[Footnote 5]

The specific meetings and conversations are enumerated in a schedule attached to the
subpoena. App. 42a-46a.

[Footnote 6]
At the joint suggestion of the Special Prosecutor and counsel for the President, and with
the approval of counsel for the defendants, further proceedings in the District Court
were held in camera.

[Footnote 7]

The parties have suggested that this Court has jurisdiction on other grounds. In view of
our conclusion that there is jurisdiction under 28 U.S.C. 1254(1) because the District
Court's order was appealable, we need not decide whether other jurisdictional vehicles
are available.

[Footnote 8]

The regulation issued by the Attorney General pursuant to his statutory authority vests
in the Special Prosecutor plenary authority to control the course of investigations and
litigation related to

"all offenses arising out of the 1972 Presidential Election for which the Special
Prosecutor deems it necessary and appropriate to assume responsibility, allegations
involving the President, members of the White House staff, or Presidential appointees,
and any other matters which he consents to have assigned to him by the Attorney
General."

38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805. In particular, the Special

Prosecutor was given full authority, inter alia, "to contest the assertion of Executive
Privilege' . . . and handl[e] all aspects of any cases within his jurisdiction." Id. at 30739.
The regulation then goes on to provide:

"In exercising this authority, the Special Prosecutor will have the greatest degree of
independence that is consistent with the Attorney General's statutory accountability for
all matters falling within the jurisdiction of the Department of Justice. The Attorney
General will not countermand or interfere with the Special Prosecutor's decisions or
actions. The Special Prosecutor will determine whether and to what extent he will
inform or consult with the Attorney General about the conduct of his duties and
responsibilities. In accordance with assurances given by the President to the Attorney
General that the President will not exercise his Constitutional powers to effect the
discharge of the Special Prosecutor or to limit the independence that he is hereby given,
the Special Prosecutor will not be removed from his duties except for extraordinary
improprieties on his part and without the President's first consulting the Majority and
the Minority Leaders and Chairmen and ranking Minority Members of the Judiciary
Committees of the Senate and House of Representatives and ascertaining that their
consensus is in accord with his proposed action."

[Footnote 9]
That this was the understanding of Acting Attorney General Robert Bork, the author of
the regulation establishing the independence of the Special Prosecutor, is shown by his
testimony before the Senate Judiciary Committee:

"Although it is anticipated that Mr. Jaworski will receive cooperation from the White
House in getting any evidence he feels he needs to conduct investigations and
prosecutions, it is clear and understood on all sides that he has the power to use judicial
processes to pursue evidence if disagreement should develop."

Hearings on the Special Prosecutor before the Senate Committee on the Judiciary, 93d
Cong., 1st Sess., pt. 2, p. 450 (1973). Acting Attorney General Bork gave similar
assurances to the House Subcommittee on Criminal Justice. Hearings on H. J Res. 784
and H.R. 10937 before the Subcommittee on Criminal Justice of the House Committee
on the Judiciary, 93d Cong., 1st Sess., 266 (1973). At his confirmation hearings, Attorney
General William Saxbe testified that he shared Acting Attorney General Bork's views
concerning the Special Prosecutor's authority to test any claim of executive privilege in
the courts. Hearings on the Nomination of William B. Saxbe to be Attorney General
before the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 9 (1973).

[Footnote 10]

At his confirmation hearings, Attorney General William Saxbe testified that he agreed
with the regulation adopted by Acting Attorney General Bork, and would not remove
the Special Prosecutor except for "gross impropriety." Id. at 5-6, 8-10. There is no
contention here that the Special Prosecutor is guilty of any such impropriety.

[Footnote 11]

The Court quoted a statement of a member of the advisory committee that the purpose
of the Rule was to bring documents into court

"in advance of the time that they are offered in evidence, so that they may then be
inspected in advance, for the purpose . . . of enabling the party to see whether he can
use [them] or whether he wants to use [them]."

341 U.S. at 341 U. S. 220 n. 5. The Manual for Complex and Multidistrict Litigation
published by the Federal Judicial Center recommends that use of Rule 17(c) be
encouraged in complex criminal cases in order that each party may be compelled to
produce its documentary evidence well in advance of trial and in advance of the time it
is to be offered. P. 150.

[Footnote 12]

The District Court found here that it was faced with

"the more unusual situation . . . where the subpoena, rather than being directed to the
government by defendants, issues to what, as a practical matter, is a third party."

United States v. Mitchell, 377 F.Supp. 1326, 1330 (DC 1974). The Special Prosecutor
suggests that the evidentiary requirement of Bowman Dairy Co. and Iozia does not apply
in its full vigor when the subpoena duces tecum is issued to third parties, rather than to
government prosecutors. Brief for United States 128-129. We need not decide whether
a lower standard exists, because we are satisfied that the relevance and evidentiary
nature of the subpoenaed tapes were sufficiently shown as a preliminary matter to
warrant the District Court's refusal to quash the subpoena.

[Footnote 13]

Such statements are declarations by a party defendant that "would surmount all
objections based on the hearsay rule . . ." and, at least as to the declarant himself,
"would be admissible for whatever inferences" might be reasonably drawn.United
States v. Matlock, 415 U. S. 164, 415 U. S. 172 (1974). On Lee v. United States, 343 U. S.
747, 343 U. S. 757 (1952). See also C. McCormick, Evidence 270, pp. 651-652 (2d
ed.1972).

[Footnote 14]

As a preliminary matter, there must be substantial, independent evidence of the

conspiracy, at least enough to take the question to the jury. United States v. Vaught, 485
F.2d 320, 323 (CA4 1973); United States v. Hoffa, 349 F.2d 20, 412 (CA6 1965), aff'd on
other grounds, 385 U. S. 293 (1966); United States v. Santos, 385 F.2d 43, 45 (CA7
1967), cert. denied, 390 U.S. 954 (1968); United States v. Morton, 483 F.2d 573, 576
(CA8 1973); United States v. Spanos, 462 F.2d 1012, 1014 (CA9 1972);Carbo v. United
States, 314 F.2d 718, 737 (CA9 1963), cert. denied, 377 U.S. 953 (1964). Whether the
standard has been satisfied is a question of admissibility of evidence to be decided by
the trial judge.

[Footnote 15]

There is nothing novel about governmental confidentiality. The meetings of the

Constitutional Convention in 1787 were conducted in complete privacy. 1 M. Farrand,
The Records of the Federal Convention of 1787, pp. xi-xxv (1911). Moreover, all records
of those meetings were sealed for more than 30 years after the Convention. See 3 Stat.
475, 15th Cong., 1st Sess., Res. 8 (1818). Most of the Framers acknowledged that,
without secrecy, no constitution of the kind that was developed could have been written.
C. Warren, The Making of the Constitution 134-139 (1937).

[Footnote 16]
The Special Prosecutor argues that there is no provision in the Constitution for a
Presidential privilege as to the President's communications corresponding to the
privilege of Members of Congress under the Speech or Debate Clause. But the silence of
the Constitution on this score is not dispositive.

"The rule of constitutional interpretation announced in McCulloch v. Maryland, 4 Wheat.

316, that that which was reasonably appropriate and relevant to the exercise of a
granted power was to be considered as accompanying the grant, has been so universally
applied that it suffices merely to state it."

Marshall v. Gordon, 243 U. S. 521, 243 U. S. 537 (1917).

[Footnote 17]

"Freedom of communication vital to fulfillment of the aims of wholesome relationships

is obtained only by removing the specter of compelled disclosure. . . . [G]overnment . . .
needs open but protected channels for the kind of plain talk that is essential to the
quality of its functioning."

Carl Zeiss Stiftung v. v. E. B. Carl Zeis, Jena, 4 F.R.D. 318, 325 (DC 1966). See Nixon v.
Sirica, 159 U.S.App.D.C. 58, 71, 487 F.2d 700, 713 (1973); Kaiser Aluminum & Chem.
Corp. v. United States, 141 Ct.Cl. 38, 157 F.Supp. 939 (1958) (Reed, J.); The Federalist,
No. 64 (S. Mittell ed.1938).

[Footnote 18]

Because of the key role of the testimony of witnesses in the judicial process, courts have
historically been cautious about privileges. Mr. Justice Frankfurter, dissenting in Elkins v.
United States, 364 U. S. 206, 364 U. S. 234 (1960), said of this:

"Limitations are properly placed upon the operation of this general principle only to the
very limited extent that permitting a refusal to testify or excluding relevant evidence has
a public good transcending the normally predominant principle of utilizing all rational
means for ascertaining truth."

[Footnote 19]

We are not here concerned with the balance between the President's generalized
interest in confidentiality and the need for relevant evidence in civil litigation, nor with
that between the confidentiality interest and congressional demands for information,
nor with the President's interest in preserving state secrets. We address only the conflict
between the President's assertion of a generalized privilege of confidentiality and the
constitutional need for relevant evidence in criminal trials.
[Footnote 20]

Mr. Justice Cardozo made this point in an analogous context. Speaking for a unanimous
Court in Clark v. United States, 289 U. S. 1 (1933), he emphasized the importance of
maintaining the secrecy of the deliberations of a petit jury in a criminal case.

"Freedom of debate might be stifled and independence of thought checked if jurors

were made to feel that their arguments and ballots were to be freely published to the
world."

Id. at 289 U. S. 13. Nonetheless, the Court also recognized that isolated inroads on
confidentiality designed to serve the paramount need of the criminal law would not
vitiate the interests served by secrecy:

"A juror of integrity and reasonable firmness will not fear to speak his mind if the
confidences of debate are barred to the ears of mere impertinence or malice. He will not
expect to be shielded against the disclosure of his conduct in the event that there is
evidence reflecting upon his honor. The chance that now and then there may be found
some timid soul who will take counsel of his fears and give way to their repressive
power is too remote and shadowy to shape the course of justice."

Id. at 289 U. S. 16.

[Footnote 21]

When the subpoenaed material is delivered to the District Judge in camera, questions
may arise as to the excising of parts, and it lies within the discretion of that court to seek
the aid of the Special Prosecutor and the President's counsel for in camera consideration
of the validity of particular excision, whether the basis of excision is relevancy or
admissibility or under such cases as United States v. Reynolds, 345 U. S. 1 (1953), or C. &
S. Air Line v. Waterman S.S. Corp., 333 U. S. 103(1948).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 95367 May 23, 1995

COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, and

ELISA RIVERA,petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and CONCERNED CITIZENS, respondents.

MENDOZA, J.:

This is a petition for certiorari, prohibition, and mandamus to annul the subpoena duces
tecum and orders issued by respondent Ombudsman, requiring petitioners Nerio Rogado and
Elisa Rivera, as chief accountant and record custodian, respectively, of the Economic
Intelligence and Investigation Bureau (EIIB) to produce "all documents relating to Personal
Services Funds for the year 1988 and all evidence, such as vouchers (salary) for the whole
plantilla of EIIB for 1988" and to enjoin him from enforcing his orders.

Petitioner Jose T. Almonte was formerly Commissioner of the EIIB, while Villamor C. Perez is
Chief of the EIIB's Budget and Fiscal Management Division. The subpoena duces tecum was
issued by the Ombudsman in connection with his investigation of an anonymous letter
alleging that funds representing savings from unfilled positions in the EIIB had been illegally
disbursed. The letter, purporting to have been written by an employee of the EIIB and a
concerned citizen, was addressed to the Secretary of Finance, with copies furnished several
government offices, including the Office of the Ombudsman.

The letter reads in pertinent parts:

1 These are the things that I have been observing. During the implementation of E.O. 127 on
May 1, 1988, one hundred ninety (190) personnel were dismissed. Before that
implementation, we had a monthly savings of P500,000.00 from unfilled plantilla position plus
the implementation of RA 6683 wherein seventy (70) regular employees availed a total
amount of P1,400,000.00 was saved from the government monthly. The question is, how do
they used or disbursed this savings? The EIIB has a syndicate headed by the Chief of Budget
Division who is manipulating funds and also the brain of the so called "ghost agents" or the
"Emergency Intelligence Agents" (EIA). The Commissioner of EIIB has a biggest share on this.
Among his activities are:

a) Supporting RAM wherein he is involved. He gives big amount especially during the Dec.
Failed coup.

b) Payment for thirty five (30) mini UZI's.

c) Payment for the purchased of Maxima '87 for personal used of the Commissioner.
d) Another observation was the agents under the Director of NCR EIIB is the sole operating
unit within Metro Manila which was approved by no less than the Commissioner due to
anomalous activities of almost all agents assigned at the central office directly under the
Commissioner. Retired Brig. Gen. Almonte as one of the Anti-Graft board member of the
Department of Finance should not tolerate this. However, the Commissioner did not
investigate his own men instead, he placed them under the 15-30 payroll.

e) Many more which are personal.

2. Sir, my question is this. Can your good office investigate EII intelligence funds particularly
Personal Services (01) Funds? I wonder why the Dep't of Budget & Mgmt. cannot compel
EIIB to submit an actual filled up position because almost half of it are vacant and still they are
releasing it. Are EIIB plantilla position classified? It is included in the Personal Services
Itemization (PSI) and I believe it is not classified and a ruling from Civil Service Commission
that EIIB is not exempted from Civil Service. Another info, when we had salary differential last
Oct '88 all money for the whole plantilla were released and from that alone, Millions were
saved and converted to ghost agents of EIA.

3. Another thing that I have observed was the Chief Budget Division possesses high caliber
firearms such as a mini UZI, Armalite rifle and two (2) 45 cal. pistol issued to him by the
Assistant Commissioner wherein he is not an agent of EIIB and authorized as such according
to memorandum order number 283 signed by the President of the Republic of the Philippines
effective 9 Jan. 1990.

Another observation was when EIIB agents apprehended a certain civilian who possesses
numerous assorted high powered firearms. Agents plus one personnel from the legal
proclaimed only five (5) firearms and the remaining was pilfered by them.

Another observation is almost all EIIB agents collects payroll from the big time smuggler
syndicate monthly and brokers every week for them not to be apprehended.

Another observation is the commissioner allocates funds coming from the intelligence funds
to the media to sustain their good image of the bureau.

In his comment 1 on the letter-complaint, petitioner Almonte denied that as a result of the
separation of personnel, the EIIB had made some savings. He averred that the only funds
released to his agency by the Department of Budget and Management (DBM) were those
corresponding to 947 plantilla positions which were filled. He also denied that there were "ghost
agents" in the EIIB and claimed that disbursements for "open" (i.e., "overt" personnel) and "closed"
(i.e., "covert" personnel) plantillas of the agency had been cleared by the Commission on Audit
(COA); that the case of the 30 Uzis had already been investigated by Congress, where it was
shown that it was not the EIIB but an agent who had spent for the firearms and they were only
loaned to the EIIB pending appropriation by Congress; that, contrary to the charge that a Maxima
car had been purchased for his use, he was using a government issued car from the NICA; that it
was his prerogative as Commissioner to "ground" agents in the EIIB main office so that they could
be given reorientation and retraining; that the allegation that the EIIB operatives pilfered smuggled
firearms was without factual basis because the firearms were the subject of seizure proceedings
before the Collector of Customs, Port of Manila; that the EIIB had been uncompromising toward
employees found involved in anomalous activities; and that intelligence funds had not been used
for media propaganda and if media people went to the EIIB it was because of newsworthy stories.
Petitioner asked that the complaint be dismissed and the case considered closed.
Similarly petitioner Perez, budget chief of the EIIB, denied in his comment 2 dated April 3, 1990
that savings had been realized from the implementation of E.O. No. 127, since the DBM provided
allocations for only the remaining 947 personnel. He said that the disbursement of funds for the
plantilla positions for "overt" and "covert" personnel had been cleared by the COA and that the
high-powered firearms had been issued for the protection of EIIB personnel attending court
hearings and the Finance Officer in withdrawing funds from the banks.

The Graft Investigation Officer of the Ombudsman's office, Jose F. Sao, found the comments
unsatisfactory, being "unverified and plying only on generalizations without meeting
specifically the points raised by complainant as constitutive of the alleged anomalies." 3 He,
therefore, asked for authority to conduct a preliminary investigation. Anticipating the grant of his
request, he issued a subpoena 4 to petitioners Almonte and Perez, requiring them to submit their
counter-affidavits and the affidavits of their witnesses, as well as a subpoena duces tecum 5 to the
Chief of the EIIB's Accounting Division ordering him to bring "all documents relating to Personal
Services Funds for the year 1988 and all evidence, such as vouchers (salary) for the whole
plantilla of EIIB for 1988."

Petitioners Almonte and Perez moved to quash the subpoena and the subpoena duces tecum.
In his Order dated June 15, 1990, 6 respondent Ombudsman granted the motion to quash the
subpoena in view of the fact that there were no affidavits filed against petitioners. But he denied
their motion to quash the subpoena duces tecum. He ruled that petitioners were not being forced
to produce evidence against themselves, since the subpoena duces tecum was directed to the
Chief Accountant, petitioner Nerio Rogado. In addition the Ombudsman ordered the Chief of the
Records a Section of the EIIB, petitioner Elisa Rivera, to produce before the investigator "all
documents relating to Personnel Service Funds, for the year 1988, and all documents, salary
vouchers for the whole plantilla of the EIIB for 1988, within ten (10) days from receipt hereof."

Petitioners Almonte and Perez moved for a reconsideration, arguing that Rogado and Rivera
were EIIB employees under their supervision and that the Ombudsman was doing indirectly
what he could not do directly,i.e., compelling them (petitioners Almonte and Perez) to produce
evidence against themselves.

Petitioners' motion was denied in respondent Ombudsman's order dated August 6, 1990.
Hence, this petition which questions the orders of June 15, 1990 and August 6, 1990 of
respondent Ombudsman.

To put this case in perspective it should be stated at the outset that it does not concern a
demand by a citizen for information under the freedom of information guarantee of the
Constitution. 7 Rather it concerns the power of the Office of the Ombudsman to obtain evidence in
connection with an investigation conducted by it vis-a-vis the claim of privilege of an agency of the
Government. Thus petitioners raise the following issues: 8

I. WHETHER OR NOT A CASE BROUGHT ABOUT BY AN UNSIGNED AND UNVERIFIED

LETTER COMPLAINT IS AN "APPROPRIATE CASE" WITHIN THE CONCEPT OF THE
CONSTITUTION IN WHICH PUBLIC RESPONDENT CAN OBLIGE PETITIONERS BY
VIRTUE OF HIS SUBPOENA DUCES TECUM TO PRODUCE TO HIM "ALL DOCUMENTS
RELATING TO PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL
EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF EIIB
FOR 1988."

II. WHETHER OR NOT "ALL DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS

FOR THE YEAR 1988 AND ALL EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE
WHOLE PLANTILLA OF EIIB FOR 1988" ARE CLASSIFIED AND, THEREFORE, BEYOND
THE REACH OF PUBLIC RESPONDENT'S SUBPOENA DUCES TECUM.

I.

There are several subsidiary issues raised by petitioners, but the principal ones revolve on the
question whether petitioners can be ordered to produce documents relating to personal
services and salary vouchers of EIIB employees on the plea that such documents are
classified. Disclosure of the documents in question is resisted on the ground that "knowledge
of EIIB's documents relative to its Personal Services Funds and its plantilla . . . will
necessarily [lead to] knowledge of its operations, movements, targets, strategies, and tactics
and the whole of its being" and this could "destroy the EIIB." 9

Petitioners do not question the power of the Ombudsman to issue a subpoena duces
tecum nor the relevancy or materiality of the documents required to be produced, to the
pending investigation in the Ombudsman's office. Accordingly, the focus of discussion should
be on the Government's claim of privilege.

A.

At common law a governmental privilege against disclosure is recognized with respect to

state secrets bearing on military, diplomatic and similar matters. This privilege is based upon
public interest of such paramount importance as in and of itself transcending the individual
interests of a private citizen, even though, as a consequence thereof, the plaintiff cannot
enforce his legal rights. 10

In addition, in the litigation over the Watergate tape subpoena in 1973, the U.S. Supreme
Court recognized the right of the President to the confidentiality of his conversations and
correspondence, which it likened to "the claim of confidentiality of judicial deliberations." Said
the Court in United States v. Nixon: 11

The expectation of a President to the confidentiality of his conversations and correspondence,

like the claim of confidentiality of judicial deliberations, for example, has all the values to
which we accord deference for the privacy of all citizens and, added to those values, is the
necessity for protection of the public interest in candid, objective, and even blunt or harsh
opinions in Presidential decision-making. A President and those who assist him must be free
to explore alternatives in the process of shaping policies and making decisions and to do so in
a way many would be unwilling to express except privately. These are the considerations
justifying a presumptive privilege for Presidential communications. The privilege is
fundamental to the operation of the government and inextricably rooted in the separation of
powers under the Constitution. . . .

Thus, the Court for the first time gave executive privilege a constitutional status and a new
name, although not necessarily a new birth. 12

"The confidentiality of judicial deliberations" mentioned in the opinion of the Court referred to
the fact that Justices of the U.S. Supreme Court and judges of lower federal courts have
traditionally treated their working papers and judicial notes as private property. A 1977
proposal in the U.S. Congress that Justices and judges of lower federal courts "should be
encouraged to make such arrangements as will assure the preservation and eventual
availability of their personal papers, especially the deposit of their papers in the same
depository they select for [their] Public Papers" 13 was rebuffed by the Justices who, in a letter to
the Chairman of the Subcommittee on Regulation and Government Information of the U.S. Senate,
referred to "difficult concerns respecting the appropriate separation that must be maintained
between the legislative branch and this Court." 14

There are, in addition to such privileges, statutorily-created ones such as the Government's
privilege to withhold the identity of persons who furnish information of violations of laws. 15

With respect to the privilege based on state secret, the rule was stated by the U.S. Supreme
Court as follows:

Judicial control over the evidence in a case cannot be abdicated to the caprice of executive
officers. Yet we will not go so far as to say that the court may automatically require a complete
disclosure to the judge before the claim of privilege will be accepted in any case. It may be
possible to satisfy the court, from all the circumstances of the case, that there is a reasonable
danger that compulsion of the evidence will expose military matters which, in the interest of
national security, should not be divulged. When this is the case, the occasion for the privilege
is appropriate, and the court should not jeopardize the security which the privilege is meant to
protect by insisting upon an examination of the evidence, even by the judge alone, in
chambers. . . . In each case, the showing of necessity which is made will determine how far
the court should probe in satisfying itself that the occasion for invoking the privilege is
appropriate. Where there is a strong showing of necessity, the claim of privilege should not be
lightly accepted, but even the most compelling necessity cannot overcome the claim of
privilege if the court is ultimately satisfied that military secrets are at stake. A fortiori, where
necessity is dubious, a formal claim of privilege, made under the circumstances of this case,
will have to prevail. 16

On the other hand, where the claim of confidentiality does not rest on the need to protect
military, diplomatic or other national security secrets but on a general public interest in the
confidentiality of his conversations, courts have declined to find in the Constitution an
absolute privilege of the President against a subpoena considered essential to the
enforcement of criminal laws. 17

B.

In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the
production of records pertaining to the personnel of the EIIB. Indeed, EIIB's function is the
gathering and evaluation of intelligence reports and information regarding "illegal activities
affecting the national economy, such as, but not limited to, economic sabotage, smuggling,
tax evasion, dollar salting." 18 Consequently, while in cases which involve state secrets it may be
sufficient to determine from the circumstances of the case that there is reasonable danger that
compulsion of the evidence will expose military matters without compelling production, 19 no similar
excuse can be made for a privilege resting on other considerations.

Nor has our attention been called to any law or regulation which considers personnel records
of the EIIB as classified information. To the contrary, COA Circular No. 88-293, which
petitioners invoke to support their contention that there is adequate safeguard against misuse
of public funds, provides that the "only item of expenditure which should be treated strictly
confidential" is that which refers to the "purchase of information and payment of rewards."
Thus, part V, No. 7 of the Circular reads:

The only item of expenditure which should be treated as strictly confidential because it falls
under the category of classified information is that relating to purchase of information and
payment of rewards. However, reasonable records should be maintained and kept for
inspection of the Chairman, Commission on Audit or his duly authorized representative. All
other expenditures are to be considered unclassified supported by invoices, receipts and
other documents, and, therefore, subject to reasonable inquiry by the Chairman or his duly
authorized representative. 20

It should be noted that the regulation requires that "reasonable records" be kept justifying the
confidential or privileged character of the information relating to informers. There are no such
reasonable records in this case to substitute for the records claimed to be confidential.

The other statutes and regulations 21 invoked by petitioners in support of their contention that the
documents sought in the subpoena duces tecum of the Ombudsman are classified merely indicate
the confidential nature of the EIIB's functions, but they do not exempt the EIIB from the duty to
account for its funds to the proper authorities. Indeed by denying that there were savings made
from certain items in the agency and alleging that the DBM had released to the EIIB only the
allocations needed for the 947 personnel retained after its reorganization, petitioners in effect
invited inquiry into the veracity of their claim. If, as petitioners claim, the subpoenaed records have
been examined by the COA and found by it to be regular in all respects, there is no reason why
they cannot be shown to another agency of the government which by constitutional mandate is
required to look into any complaint concerning public office.

On the other hand, the Ombudsman is investigating a complaint that several items in the EIIB
were filled by fictitious persons and that the allotments for these items in 1988 were used for
illegal purposes. The plantilla and other personnel records are relevant to his investigation.
He and his Deputies are designated by the Constitution "protectors of the people" and as
such they are required by it "to act promptly on complaints in any form or manner against
public officials or employees of the Government, or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporation." 22

His need for the documents thus outweighs the claim of confidentiality of petitioners. What is
more, while there might have been compelling reasons for the claim of privilege in 1988 when
it was asserted by petitioners, now, seven years later, these reasons may have been
attenuated, if they have not in fact ceased. The agents whose identities could not then be
revealed may have ceased from the service of the EIIB, while the covert missions to which
they might have been deployed might either have been accomplished or abandoned. On the
other hand, the Ombudsman's duty to investigate the complaint that there were in 1988
unfilled positions in the EIIB for which continued funding was received by its officials and put
to illegal use, remains.

Above all, even if the subpoenaed documents are treated as presumptively privileged, this
decision would only justify ordering their inspection in camera but not their nonproduction.
However, as concession to the nature of the functions of the EIIB and just to be sure no
information of a confidential character is disclosed, the examination of records in this case
should be made in strict confidence by the Ombudsman himself. Reference may be made to
the documents in any decision or order which the Ombudsman may render or issue but only
to the extent that it will not reveal covert activities of the agency. Above all, there must be a
scrupulous protection of the documents delivered.

With these safeguards outlined, it is believed that a satisfactory resolution of the conflicting
claims of the parties is achieved. It is not amiss to state that even matters of national security
have been inquired into in appropriate in camera proceedings by the courts. In Lansang
v. Garcia 23 this Court held closed door sessions, with only the immediate parties and their
counsel present, to determine claims that because of subversion there was imminent danger to
public safety warranting the suspension of the writ of habeas corpus in 1971. Again in Marcos
v. Manglapus 24 the Court met behind closed doors to receive military briefings on the threat posed
to national security by the return to the country of the former President and his family. In the United
States, a similar inquiry into the danger to national security as a result of the publication of
classified documents on the Vietnam war was upheld by the U.S. Supreme Court. 25 We see no
reason why similar safeguards cannot be made to enable an agency of the Government, like the
Office of the Ombudsman, to carry out its constitutional duty to protect public interests 26 while
insuring the confidentiality of classified documents.

C.

Petitioners contend that under Art. XI, 13(4) the Ombudsman can act only "in any
appropriate case, and subject to such limitations as may be provided by law" and that
because the complaint in this case is unsigned and unverified, the case is not an appropriate
one. This contention lacks merit. As already stated, the Constitution expressly enjoins the
Ombudsman to act on any complaint filed "in any form or manner" concerning official acts or
omissions. Thus, Art. XI, 12 provides:

The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the
Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations and shall in appropriate cases, notify the
complainants of the action taken and the result thereof. (Emphasis added)

Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770) provides in 26(2):

The Office of the Ombudsman shall receive complaints from any source in whatever
form concerning an official act or omission. It shall act on the complaint immediately and if it
finds the same entirely baseless, it shall dismiss the same and inform the complainant of such
dismissal citing the reasons therefor. If it finds a reasonable ground to investigate further, it
shall first furnish the respondent public officer or employee with a summary of the complaint
and require him to submit a written answer within seventy-two hours from receipt thereof. If
the answer is found satisfactory, it shall dismiss the case. (Emphasis added)

Accordingly, in Diaz v. Sandiganbayan 27 the Court held that testimony given at a fact-finding
investigation and charges made in a pleading in a case in court constituted a sufficient basis for
the Ombudsman to commence investigation, because a formal complaint was really not
necessary.

Rather than referring to the form of complaints, therefore, the phrase "in an appropriate case"
in Art. XI, 12 means any case concerning official act or omission which is alleged to be
"illegal, unjust, improper, or inefficient."28 The phrase "subject to such limitations as may be
provided by law" refers to such limitations as may be provided by Congress or, in the absence
thereof, to such limitations as may be imposed by the courts. Such limitations may well include a
requirement that the investigation be concluded in camera, with the public excluded, as exception
to the general nature of the proceedings in the Office of the Ombudsman. 29 A reconciliation is
thereby made between the demands of national security and the requirement of accountability
enshrined in the Constitution. 30

What has been said above disposes of petitioners' contention that the anonymous
letter-complaint against them is nothing but a vexatious prosecution. It only remains to say
that the general investigation in the Ombudsman' s office is precisely for the purpose of
protecting those against whom a complaint is filed against hasty, malicious, and oppressive
prosecution as much as securing the State from useless and expensive trials. There may also
be benefit resulting from such limited in camera inspection in terms of increased public
confidence that the privilege is not being abused and increased likelihood that no abuse is in
fact occurring.

II.

Nor is there violation of petitioner's right to the equal protection of the laws. Petitioners
complain that "in all forum and tribunals . . . the aggrieved parties . . . can only hale
respondents via their verified complaints or sworn statements with their identities fully
disclosed," while in proceedings before the Office of the Ombudsman anonymous letters
suffice to start an investigation. In the first place, there can be no objection to this procedure
because it is provided in the Constitution itself. In the second place, it is apparent that in
permitting the filing of complaints "in any form and in a manner," the framers of the
Constitution took into account the well-known reticence of the people which keep them from
complaining against official wrongdoings. As this Court had occasion to point out, the Office of
the Ombudsman is different from the other investigatory and prosecutory agencies of the
government because those subject to its jurisdiction are public officials who, through official
pressure and influence, can quash, delay or dismiss investigations held against them. 31 On
the other hand complainants are more often than not poor and simple folk who cannot afford to
hire lawyers. 32

III.

Finally, it is contended that the issuance of the subpoena duces tecum would violate
petitioners' right against self-incrimination. It is enough to state that the documents required to
be produced in this case are public records and those to whom the subpoena duces tecum is
directed are government officials in whose possession or custody the documents are.
Moreover, if, as petitioners claim the disbursement by the EIIB of funds for personal service
has already been cleared by the COA, there is no reason why they should object to the
examination of the documents by respondent Ombudsman.

WHEREFORE, the petition is DISMISSED, but it is directed that the inspection of

subpoenaed documents be made personally in camera by the Ombudsman, and with all the
safeguards outlined in this decision.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason,
Puno and Vitug, JJ., concur.

Francisco, J., is on leave.

Separate Opinions

KAPUNAN, J., dissenting:

The well-written ponencia of Mr. Justice Mendoza would postulate that the Economic
Intelligence and Investigation Bureau (EIIB) documents relating to the Personal Services
Funds for the year 1988 and all documentary evidence, including salary vouchers for the
whole plantilla of the EIIB for 1988 be produced before the Ombudsman over the objections of
the EIIB Commissioner on the ground that the documents contain highly confidential matters,
apart from the fact that the expenditures had been cleared in audit by the Commission on
Audit (COA). The reasons relied upon in the ponencia are a) that the EIIB documents at issue
are not classified under COA (Commission on Audit) Circular No. 88-293, Part V No. 7 which
limits such matters exclusively to expenditures relating to the purchase of information and
payment of rewards; and b) the documents relating to disbursement and expenditures of the
EIIB for personal funds had already been previously examined by the Commission on Audit
when such outlay had been passed upon in audit in the said Office, such that there is no
confidentiality privilege to protect.

With due respect, I beg to disagree.

Disclosure of the documents as required by the Ombudsman would necessarily defeat the
legal mandate of the EIIB as the intelligence arm of the executive branch of government
relating to matters affecting the economy of the nation. As such, EIIB's functions are related to
matters affecting national security. In the performance of its function in relation with the
gathering of intelligence information executive privilege could as well be invoked by the EIIB,
especially in relation to its covert operations.

The determination, by the executive branch, through its appropriate agencies, of a question
as affecting the national security is a policy decision for which this Court has neither the
competence nor the mandate to infringe upon. In the absence of a clear showing a grave
abuse of discretion on the part of the Executive, acting through its (national security) agencies,
I am of the opinion that we cannot interfere with a determination, properly made, on a
question affecting economic security lest we are prepared to ride roughshod over certain
prerogatives of our political branches. In an area obviously affecting the national security,
disclosure of confidential information on the promptings of some dissatisfied employees
would potentially disturb a number of carefully laid-out operations dependent on secrecy and I
am not prepared to do this. The characterization of the documents as classified information is
not a shield for wrongdoing but a barrier against the burden some requests for information
which necessarily interfere with the proper performance of their duties. To give in, at every
turn, to such requests would be greatly disruptive of governmental functions. More so in this
case, since expenditures of the EIIB for personal funds had already been previously
examined and passed upon in audit by the Commission on Audit. There has been no
allegation of any irregularity in the COA's earlier examination, and in the absence of
substantiated allegations, the previous determination ought to be accorded our respect unless
we want to encourage unnecessary and tiresome forays and investigations into government
activities which would not only end up nowhere but which would also disrupt or derail such
activities.

The confidentiality privilege invoked by petitioners attaches in the exercise of the functions of
the EIIB, as presidential immunity is bestowed by reason of the political functions of the Chief
Executive, as a separate and co-equal branch of government. By the same parity of
reasoning, the disclosure of the EIIB documents required to be examined by the Ombudsman
even in camera proceedings will under the pretext of ascertaining the proper disbursements
of the EIIB funds will unnecessarily impair the performance by the EIIB of its functions
especially those affecting national security.

The constitutional right allowing disclosure of governmental documents, i.e., the right to
information on matters of public concern is not absolute. While access to official records may
not be prohibited, it may be regulated. 1Regulation includes appropriate authority to determine
what documents are of public concern, the manner of access to information contained in such
documents and to withhold information under certain circumstances, particularly, as in this case,
those circumstances affecting the national security. 2

Besides, as I emphasized earlier, the determination of the legality of EIIB's disbursements of

funds allocated to it are properly within the competence of the Commission on Audit, which as
the ponencia of Justice Mendoza finds, has been cleared in audit. The Commission on Audit
had adopted, as in the past, measures to protect "classified information" pertaining to
examination of expenditures of intelligence agencies. In the present case, disclosure of
information to any other agency would unnecessarily expose the covert operations of EIIB, as
a government agency charged with national security functions.

I, therefore, vote to give due course to the petition.

Separate Opinions

KAPUNAN, J., dissenting:

The well-written ponencia of Mr. Justice Mendoza would postulate that the Economic
Intelligence and Investigation Bureau (EIIB) documents relating to the Personal Services
Funds for the year 1988 and all documentary evidence, including salary vouchers for the
whole plantilla of the EIIB for 1988 be produced before the Ombudsman over the objections of
the EIIB Commissioner on the ground that the documents contain highly confidential matters,
apart from the fact that the expenditures had been cleared in audit by the Commission on
Audit (COA). The reasons relied upon in the ponencia are a) that the EIIB documents at issue
are not classified under COA (Commission on Audit) Circular No. 88-293, Part V No. 7 which
limits such matters exclusively to expenditures relating to the purchase of information and
payment of rewards; and b) the documents relating to disbursement and expenditures of the
EIIB for personal funds had already been previously examined by the Commission on Audit
when such outlay had been passed upon in audit in the said Office, such that there is no
confidentiality privilege to protect.

With due respect, I beg to disagree.

Disclosure of the documents as required by the Ombudsman would necessarily defeat the
legal mandate of the EIIB as the intelligence arm of the executive branch of government
relating to matters affecting the economy of the nation. As such, EIIB's functions are related to
matters affecting national security. In the performance of its function in relation with the
gathering of intelligence information executive privilege could as well be invoked by the EIIB,
especially in relation to its covert operations.

The determination, by the executive branch, through its appropriate agencies, of a question
as affecting the national security is a policy decision for which this Court has neither the
competence nor the mandate to infringe upon. In the absence of a clear showing a grave
abuse of discretion on the part of the Executive, acting through its (national security) agencies,
I am of the opinion that we cannot interfere with a determination, properly made, on a
question affecting economic security lest we are prepared to ride roughshod over certain
prerogatives of our political branches. In an area obviously affecting the national security,
disclosure of confidential information on the promptings of some dissatisfied employees
would potentially disturb a number of carefully laid-out operations dependent on secrecy and I
am not prepared to do this. The characterization of the documents as classified information is
not a shield for wrongdoing but a barrier against the burden some requests for information
which necessarily interfere with the proper performance of their duties. To give in, at every
turn, to such requests would be greatly disruptive of governmental functions. More so in this
case, since expenditures of the EIIB for personal funds had already been previously
examined and passed upon in audit by the Commission on Audit. There has been no
allegation of any irregularity in the COA's earlier examination, and in the absence of
substantiated allegations, the previous determination ought to be accorded our respect unless
we want to encourage unnecessary and tiresome forays and investigations into government
activities which would not only end up nowhere but which would also disrupt or derail such
activities.

The confidentiality privilege invoked by petitioners attaches in the exercise of the functions of
the EIIB, as presidential immunity is bestowed by reason of the political functions of the Chief
Executive, as a separate and co-equal branch of government. By the same parity of
reasoning, the disclosure of the EIIB documents required to be examined by the Ombudsman
even in camera proceedings will under the pretext of ascertaining the proper disbursements
of the EIIB funds will unnecessarily impair the performance by the EIIB of its functions
especially those affecting national security.

The constitutional right allowing disclosure of governmental documents, i.e., the right to
information on matters of public concern is not absolute. While access to official records may
not be prohibited, it may be regulated. 1Regulation includes appropriate authority to determine
what documents are of public concern, the manner of access to information contained in such
documents and to withhold information under certain circumstances, particularly, as in this case,
those circumstances affecting the national security. 2

Besides, as I emphasized earlier, the determination of the legality of EIIB's disbursements of

funds allocated to it are properly within the competence of the Commission on Audit, which as
the ponencia of Justice Mendoza finds, has been cleared in audit. The Commission on Audit
had adopted, as in the past, measures to protect "classified information" pertaining to
examination of expenditures of intelligence agencies. In the present case, disclosure of
information to any other agency would unnecessarily expose the covert operations of EIIB, as
a government agency charged with national security functions.

I, therefore, vote to give due course to the petition.

Footnotes

1 Rollo, pp. 36-37.

2 Id., p. 38.

3 Id., p. 39.

4 Id., p. 41.

5 Id., p. 42.

6 Id., pp. 53-54.

7 Art. III, 7 provides: "The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as basis
for policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law."

8 Petitioners' Memorandum, p. 6.

9 Petitioners' Memorandum, p. 27.

10 Anno., Government Privilege Against Disclosure of Official Information, 95 L. Ed. 3-4

and 7, pp. 427-29, 434.

11 418 U.S. 683, 708-9, 41 L. Ed. 2d 1039, 1061-4 (1973).

12 Freund, The Supreme Court 1973 Term Foreword: On Presidential Privilege, 88 HARV.
L. REV. 13, 18-35 (1974).

13 Final Report of the National Study Commission on Records and Documents of Federal
Officials (March 31, 1977), quoted in BLOCH & KRATTENMAKER, SUPREME COURT
POLITICS: THE INSTITUTION AND ITS PROCEDURES 677-87 (1994).

14 Letter of Chief Justice William H. Rehnquist dated June 7, 1993 to Sen. Joseph I.
Lieberman, Chairman, Subcommittee on Regulation and Government Information, U.S.
Senate, quoted in BLOCH & KRATTENMAKER, id., at 687-8.

15 COA Circular No. 88-293.

16 United States v. Reynolds, 345 U.S. 1, 10-11, 97 L. Ed. 727, 734-35 (1953). In this case
the U.S. Supreme Court reversed a lower court order requiring the government to produce
documents relating to the crash of a military aircraft which had been engaged in a secret
mission to test electronic equipment. The fact conceded by respondents, that the aircraft was
on secret military mission, justified nonproduction of the report of the accident. It was
apparent the report contained state secrets which in the interest of national security could not
be divulged even in the chambers of the judge or in camera. There was "a reasonable danger
that the investigation report would contain references to the secret electronic equipment
which was the primary concern of the mission."

17 In United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039 (1974), the Court, while
acknowledging that the President's need "for complete candor and objectivity from advisers
calls for great deference from the courts," nonetheless held that such generalized claim of
confidentiality could not prevail over the "specific need for evidence in a pending criminal
trial." Accordingly the Court ordered the tapes of conversations of President Nixon to be
turned over to the trial judge for in camera inspection to determine whether they were relevant
and admissible apart from being privileged. Similarly in Nixon v. Administrator of General
Services, 433 U.S. 425, 53 L. Ed. 2d 867 (1977) it was held that the mere screening of tapes
and other records of President Nixon's conversations with employees of the Federal
Government, to be done by professional archivists for the purpose of "legitimate historical and
governmental purpose," constituted "a very limited intrusion . . . into executive confidentiality
comparable to those held to justify in camera inspection." 433 U.S. at 451-52, 53 L. Ed. 2d. at
896-97. Accordingly the validity of the law, entitled "Presidential Recordings and Materials
Preservation Act," was upheld against the claim that "the Presidential privilege shields the
records from archival scrutiny."

18 E.O. No. 127.

19 United States v. Reynolds, supra note 16.

20 Quoted in Petitioners' Memorandum, p. 27.

21 Petitioners cite in their Memorandum, at p. 19, the following:

19. Release of Intelligence and Confidential Funds. Intelligence and confidential funds
provided for in the budgets of departments, bureaus, offices or other agencies of the national
government,including amounts from savings authorized by Special Provisions to be used for
intelligence and counter-intelligence activities, shall be released only upon approval of the
President of the Philippines. (RA 6642-GAA for CY 1988).

Effective immediately, all requests for the allocation or release of intelligence funds shall
indicate in full detail the specific purposes for which said funds shall be spent and shall
explain the circumstances giving rise to the necessity for the expenditure and the particular
aims to be accomplished. (Letter of Instructions No. 1282 dated January 12, 1983).

Any disbursement of intelligence funds should not be allowed in audit, unless it is in strict
compliance with the provisions of Letters of Instruction
No. . . . and 1282. Any officer or employee who violates the provisions of the aforementioned
Letter of Instruction shall be dealt with administratively without prejudice to any criminal action
that may be warranted. (Memorandum Circular No. 1290 of the Office of the President dated
August 19, 1985).

22 Art. XI, 12.

23 42 SCRA 448 (1971).

24 117 SCRA 668 (1989).

25 New York Times Co. v. United States [The Pentagon Papers Case], 403 U.S. 713, 29 L.
Ed. 2d 822 (1971).

26 Art. XI, 13. The Office of the Ombudsman shall have the following powers, functions, and
duties:

(1) 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.

(2) Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original charter, to perform and expedite
any act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the
performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official or employee
at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution,
and ensure compliance therewith.

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as
may be provided by law, to furnish it with copies of documents relating to contracts or
transactions entered into by his office involving the disbursement or use of public funds or
properties, and report any irregularity to the Commission on Audit for appropriate action.

(5) Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents.

xxx xxx xxx

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in
the Government and make recommendations or their elimination and the observance of high
standards of ethics and efficiency.

In the performance of his functions the Ombudsman is given under Republic Act No. 6770,
15(8) the power to issue subpoena and subpoena duces tecum.

27 219 SCRA 675 (1993).

28 Art. XI, 13(1).

29 Art. XI, 13(6) requires the Office of the Ombudsman to "publicize matters covered by its
investigation when circumstances so warrant and with due prudence."

30 Art. XI, 1 provides: "Public office is a public trust. Public officers and employees must at
all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency, act with patriotism and justice and lead modest lives."

31 Deloso v. Domingo, 191 SCRA 545, 551 (1990).

32 2 RECORD OF THE CONSTITUTIONAL COMMISSION, pp. 369-370.

KAPUNAN, J., dissenting:

1 BERNAS, I THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 265 (1987).

2 See id., at 267.

 Supreme Court
Manila
EN BANC

AKBAYAN CITIZENS ACTION

PARTY (AKBAYAN), PAMBANSANG G.R. No. 170516
KATIPUNAN NG MGA SAMAHAN
SA KANAYUNAN (PKSK), Present:
ALLIANCE OF PROGRESSIVE PUNO, C.J.,
LABOR (APL), VICENTE A. FABE, QUISUMBING,
ANGELITO R. MENDOZA, MANUEL YNARES-SANTIAGO,
P. QUIAMBAO, ROSE BEATRIX CARPIO,
CRUZ-ANGELES, CONG. LORENZO AUSTRIA-MARTINEZ,
R. TANADA III, CONG. MARIO CORONA,
JOYO AGUJA, CONG. LORETA ANN CARPIO MORALES,
P. ROSALES, CONG. ANA AZCUNA,
THERESIA TINGA,
HONTIVEROS-BARAQUEL, AND CHICO-NAZARIO,
CONG. EMMANUEL JOEL J. VELASCO, JR.,
VILLANUEVA, NACHURA,
Petitioners, REYES,
LEONARDO-DE CASTRO, &
- versus BRION, JJ.

THOMAS G. AQUINO, in his capacity

as Undersecretary of the Department of
Trade and Industry (DTI) and
Chairman and Chief Delegate of the
Philippine Coordinating Committee
(PCC) for the Japan-Philippines
Economic Partnership Agreement,
EDSEL T. CUSTODIO, in his capacity
as Undersecretary of the Department of Promulgated:
Foreign Affairs (DFA) and Co-Chair of
the PCC for the JPEPA, EDGARDO
ABON, in his capacity as Chairman of July 16, 2008
the Tariff Commission and lead
negotiator for Competition Policy and
Emergency Measures of the JPEPA,
MARGARITA SONGCO, in her
capacity as Assistant Director-General
of the National Economic Development
Authority (NEDA) and lead negotiator
for Trade in Services and Cooperation
of the JPEPA, MALOU MONTERO, in
her capacity as Foreign Service Officer
I, Office of the Undersecretary for
International Economic Relations of the
DFA and lead negotiator for the
General and Final Provisions of the
JPEPA, ERLINDA ARCELLANA, in
her capacity as Director of the Board of
Investments and lead negotiator for
Trade in Goods (General Rules) of the
JPEPA, RAQUEL ECHAGUE, in her
capacity as lead negotiator for Rules of
Origin of the JPEPA, GALLANT
SORIANO, in his official capacity as
Deputy Commissioner of the Bureau of
Customs and lead negotiator for
Customs Procedures and Paperless
Trading of the JPEPA, MA. LUISA
GIGETTE IMPERIAL, in her capacity
as Director of the Bureau of Local
Employment of the Department of
Labor and Employment (DOLE) and
lead negotiator for Movement of
Natural Persons of the JPEPA,
PASCUAL DE GUZMAN, in his
capacity as Director of the Board of
Investments and lead negotiator for
Investment of the JPEPA, JESUS
MOTOOMULL, in his capacity as
Director for the Bureau of Product
Standards of the DTI and lead
negotiator for Mutual Recognition of
the JPEPA, LOUIE CALVARIO, in his
capacity as lead negotiator for
Intellectual Property of the JPEPA,
ELMER H. DORADO, in his capacity
as Officer-in-Charge of the Government
Procurement Policy Board Technical
Support Office, the government agency
that is leading the negotiations on
Government Procurement of the
JPEPA, RICARDO V. PARAS, in his
capacity as Chief State Counsel of the
Department of Justice (DOJ) and lead
negotiator for Dispute Avoidance and
Settlement of the JPEPA, ADONIS
SULIT, in his capacity as lead
negotiator for the General and Final
Provisions of the JPEPA, EDUARDO R.
ERMITA, in his capacity as Executive
Secretary, and ALBERTO ROMULO,
in his capacity as Secretary of the DFA,*
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Petitioners non-government organizations, Congresspersons, citizens and

taxpayers seek via the present petition for mandamus and prohibition to
obtain from respondents the full text of the Japan-Philippines Economic
Partnership Agreement (JPEPA) including the Philippine and Japanese
offers submitted during the negotiation process and all pertinent attachments
and annexes thereto.

Petitioners Congressmen Lorenzo R. Taada III and Mario

Joyo Aguja filed on January 25, 2005 House Resolution No. 551 calling for
an inquiry into the bilateral trade agreements then being negotiated by the
Philippine government, particularly the JPEPA. The Resolution became the
basis of an inquiry subsequently conducted by the House Special Committee
on Globalization (the House Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein
respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the
Philippine Coordinating Committee created under Executive Order No. 213
(CREATION OF A PHILIPPINE COORDINATING COMMITTEE TO
STUDY THE FEASIBILITY OF THE JAPAN-PHILIPPINES ECONOMIC
PARTNERSHIP AGREEMENT)[1] to study and negotiate the proposed
JPEPA, and to furnish the Committee with a copy of the latest draft of the
JPEPA. Usec. Aquino did not heed the request, however.

Congressman Aguja later requested for the same document,

but Usec. Aquino, by letter of November 2, 2005, replied that the
Congressman shall be provided with a copy thereof once the negotiations are
completed and as soon as a thorough legal review of the proposed agreement
has been conducted.

In a separate move, the House Committee, through

Congressman Herminio G. Teves, requested Executive Secretary
Eduardo Ermita to furnish it with all documents on the subject including the
latest draft of the proposed agreement, the requests and offers etc.[2] Acting
on the request, Secretary Ermita, by letter of June 23, 2005, wrote
CongressmanTeves as follows:

In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of]
F[oreign] A[ffairs] explains that the Committees request to be furnished
all documents on the JPEPA may be difficult to accomplish at this
time, since the proposed Agreement has been a work in progress for
about three years. A copy of the draft JPEPA will however be forwarded
to the Committee as soon as the text thereof is settled and complete.
(Emphasis supplied)

Congressman Aguja also requested NEDA

Director-General Romulo Neri and Tariff Commission
Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest
text of the JPEPA.
 Chairman Abon replied, however, by letter of July 12, 2005 that the
Tariff Commission does not have a copy of the documents being requested,
albeit he was certain thatUsec. Aquino would provide the Congressman with
a copy once the negotiation is completed. And by letter of July 18, 2005,
NEDA Assistant Director-General Margarita R.Songco informed the
Congressman that his request addressed to Director-General Neri had been
forwarded to Usec. Aquino who would be in the best position to respond to
the request.

In its third hearing conducted on August 31, 2005, the House Committee
resolved to issue a subpoena for the most recent draft of the JPEPA, but the
same was not pursued because by Committee Chairman
Congressman Teves information, then House Speaker Jose de Venecia had
requested him to hold in abeyance the issuance of the subpoena until the
President gives her consent to the disclosure of the documents.[3]

Amid speculations that the JPEPA might be signed by the Philippine

government within December 2005, the present petition was filed
on December 9, 2005.[4] The agreement was to be later signed on September
9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime
Minister Junichiro Koizumi in Helsinki, Finland, following which the
President endorsed it to the Senate for its concurrence pursuant to Article
VII, Section 21 of the Constitution. To date, the JPEPA is still being
deliberated upon by the Senate.

The JPEPA, which will be the first bilateral free trade agreement to be
entered into by the Philippines with another country in the event the Senate
grants its consent to it, covers a broad range of topics which respondents
enumerate as follows: trade in goods, rules of origin, customs procedures,
paperless trading, trade in services, investment, intellectual property rights,
government procurement, movement of natural persons, cooperation,
competition policy, mutual recognition, dispute avoidance and settlement,
improvement of the business environment, and general and final
provisions.[5]
While the final text of the JPEPA has now been made accessible to the
public since September 11, 2006,[6] respondents do not dispute that, at the
time the petition was filed up to the filing of petitioners Reply when the
JPEPA was still being negotiated the initial drafts thereof were kept from
public view.

Before delving on the substantive grounds relied upon by petitioners in

support of the petition, the Court finds it necessary to first resolve some
material procedural issues.

Standing

For a petition for mandamus such as the one at bar to be given due course, it
must be instituted by a party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which unlawfully excludes said party
from the enjoyment of a legal right.[7] Respondents deny that petitioners
have such standing to sue. [I]n the interest of a speedy and definitive
resolution of the substantive issues raised, however, respondents consider it
sufficient to cite a portion of the ruling in Pimentel v. Office of Executive
Secretary[8]which emphasizes the need for a personal stake in the outcome of
the controversy on questions of standing.

In a petition anchored upon the right of the people to information on matters

of public concern, which is a public right by its very nature, petitioners need
not show that they have any legal or special interest in the result, it being
sufficient to show that they are citizens and, therefore, part of the general
public which possesses the right.[9] As the present petition is anchored on the
right to information and petitioners are all suing in their capacity as citizens
and groups of citizens including petitioners-members of the House of
Representatives who additionally are suing in their capacity as such, the
standing of petitioners to file the present suit is grounded in jurisprudence.

Mootness
Considering, however, that [t]he principal relief petitioners are praying for is
the disclosure of the contents of the JPEPA prior to its finalization between
the two States parties,[10] public disclosure of the text of the JPEPA after its
signing by the President, during the pendency of the present petition, has
been largely rendered moot and academic.

With the Senate deliberations on the JPEPA still pending, the agreement as it
now stands cannot yet be considered as final and binding between the two
States. Article 164 of the JPEPA itself provides that the agreement does not
take effect immediately upon the signing thereof. For it must still go through
the procedures required by the laws of each country for its entry into
force, viz:

Article 164
Entry into Force

This Agreement shall enter into force on the thirtieth day after the date on
which the Governments of the Parties exchange diplomatic notes
informing each other that their respective legal procedures necessary
for entry into force of this Agreement have been completed. It shall
remain in force unless terminated as provided for in Article
165.[11] (Emphasis supplied)

President Arroyos endorsement of the JPEPA to the Senate for concurrence

is part of the legal procedures which must be met prior to the agreements
entry into force.

The text of the JPEPA having then been made accessible to the public, the
petition has become moot and academic to the extent that it seeks the
disclosure of the full text thereof.

The petition is not entirely moot, however, because petitioners seek to

obtain, not merely the text of the JPEPA, but also the Philippine and
Japanese offers in the course of the negotiations.[12]

A discussion of the substantive issues, insofar as they impinge on petitioners

demand for access to the Philippine and Japanese offers, is thus in order.
Grounds relied upon by petitioners

Petitioners assert, first, that the refusal of the government to disclose the
documents bearing on the JPEPA negotiations violates their right to
information on matters of publicconcern[13] and contravenes other
constitutional provisions on transparency, such as that on the policy of full
public disclosure of all transactions involving public interest.[14]Second,
they contend that non-disclosure of the same documents undermines their
right to effective and reasonable participation in all levels of social, political,
and economic decision-making.[15] Lastly, they proffer that divulging the
contents of the JPEPA only after the agreement has been concluded will
effectively make the Senate into a mere rubber stamp of the Executive, in
violation of the principle of separation of powers.

Significantly, the grounds relied upon by petitioners for the disclosure of

the latest text of the JPEPA are, except for the last, the same as those cited
for the disclosure of the Philippine and Japanese offers.

The first two grounds relied upon by petitioners which bear on the merits of
respondents claim of privilege shall be discussed. The last, being
purely speculatory given that the Senate is still deliberating on the JPEPA,
shall not.

The JPEPA is a matter of public concern

To be covered by the right to information, the information sought must meet

the threshold requirement that it be a matter of public concern. Apropos is
the teaching of Legaspi v. Civil Service Commission:

In determining whether or not a particular information is of public concern

there is no rigid test which can be applied. Public concern like public
interest is a term that eludes exact definition.Both terms embrace a broad
 spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the
courts to determine on a case by case basis whether the matter at issue is
of interest or importance, as it relates to or affects the
public.[16] (Underscoring supplied)

From the nature of the JPEPA as an international trade agreement, it is

evident that the Philippine and Japanese offers submitted during the
negotiations towards its execution are matters of public concern. This,
respondents do not dispute. They only claim that diplomatic negotiations are
covered by the doctrine of executive privilege, thus constituting an
exception to the right to information and the policy of full public disclosure.

Respondents claim of privilege

It is well-established in jurisprudence that neither the right to information

nor the policy of full public disclosure is absolute, there being matters which,
albeit of public concern or public interest, are recognized as privileged in
nature. The types of information which may be considered privileged have
been elucidated in Almonte v. Vasquez,[17] Chavez v. PCGG,[18] Chavez v.
Public Estates Authority,[19] and most recently in Senate v. Ermita[20] where
the Court reaffirmed the validity of the doctrine of executive privilege in this
jurisdiction and dwelt on its scope.

Whether a claim of executive privilege is valid depends on the ground

invoked to justify it and the context in which it is made.[21] In the present
case, the ground for respondents claim of privilege is set forth in
their Comment, viz:

x x x The categories of information that may be considered privileged

includes matters of diplomatic character and under negotiation and
review. In this case, the privileged character of thediplomatic
negotiations has been categorically invoked and clearly explained by
respondents particularly respondent DTI Senior Undersecretary.

The documents on the proposed JPEPA as well as the text which is subject
to negotiations and legal review by the parties fall under the exceptions to
 the right of access to information on matters of public concern and policy
of public disclosure. They come within the coverage of executive
privilege. At the time when the Committee was requesting for copies of
such documents, the negotiations were ongoing as they are still now and
the text of the proposed JPEPA is still uncertain and subject to
change. Considering the status and nature of such documents then and now,
these are evidently covered by executive privilege consistent with existing
legal provisions and settled jurisprudence.

Practical and strategic considerations likewise counsel against the

disclosure of the rolling texts which may undergo radical change or
portions of which may be totally abandoned. Furthermore,
the negotiations of the representatives of the Philippines as well as of
Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working
drafts of opinions are accorded strict confidentiality.[22] (Emphasis and
underscoring supplied)

The ground relied upon by respondents is thus not simply that the
information sought involves a diplomatic matter, but that it pertains
to diplomatic negotiations then in progress.

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in

this jurisdiction. In discussing valid limitations on the right to information,
the Court in Chavez v. PCGG held that information on inter-government
exchanges prior to the conclusion of treaties and executive agreements may
be subject to reasonable safeguards for the sake of national interest.[23] Even
earlier, the same privilege was upheld in Peoples Movement for Press
Freedom (PMPF) v. Manglapus[24] wherein the Court discussed the reasons
for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information

from the Presidents representatives on the state of the then on-going
negotiations of the RP-US Military Bases Agreement.[25] The Court denied
the petition, stressing that secrecy of negotiations with foreign countries is
not violative of the constitutional provisions of freedom of speech or of the
press nor of the freedom of access to information. The Resolution went on
to state, thus:

The nature of diplomacy requires centralization of authority and

expedition of decision which are inherent in executive action. Another
essential characteristic of diplomacy is its confidential
nature. Although much has been said about open and secret diplomacy,
with disparagement of the latter, Secretaries of State Hughes
and Stimson have clearly analyzed and justified the practice. In the words
of Mr. Stimson:

A complicated negotiation . . . cannot be carried

through without many, many private talks and
discussion, man to man; many tentative suggestions and
proposals.Delegates from other countries come and tell
you in confidence of their troubles at home and of their
differences with other countries and with other
delegates; they tell you of what they would do under
certain circumstances and would not do under other
circumstances. . . If these reports . . . should become
public . . . who would ever trust American Delegations
in another conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284.).

xxxx

There is frequent criticism of the secrecy in which negotiation with

foreign powers on nearly all subjects is concerned. This, it is claimed,
is incompatible with the substance of democracy. As expressed by one
writer, It can be said that there is no more rigid system of silence
anywhere in the world. (E.J. Young, Looking Behind the Censorship, J.
B. Lippincott Co., 1938) President Wilson in starting his efforts for the
conclusion of the World War declared that we must have open covenants,
openly arrived at. He quickly abandoned his thought.

No one who has studied the question believes that such a method of
publicity is possible. In the moment that negotiations are started,
pressure groups attempt to muscle in. An ill-timed speech by one of
the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to widespread
propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for
discussion before it is approved. (The New American Government and
Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)
 Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S.
v. Curtiss-Wright Export Corp.[26] that the President is the sole organ of the
nation in its negotiations with foreign countries, viz:

x x x In this vast external realm, with its important, complicated, delicate

and manifold problems, the President alone has the power to speak or
listen as a representative of the nation. He makestreaties with the advice
and consent of the Senate; but he alone negotiates. Into the field of
negotiation the Senate cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great argument of March 7, 1800, in the
House of Representatives, The President is the sole organ of the nation
in its external relations, and its sole representative with foreign
nations. Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring
in the original)

Applying the principles adopted in PMPF v. Manglapus, it is clear that while

the final text of the JPEPA may not be kept perpetually confidential since
there should be ample opportunity for discussion before [a treaty] is
approved the offers exchanged by the parties during the negotiations
continue to be privileged even after the JPEPA is published. It is reasonable
to conclude that the Japanese representatives submitted their offers with the
understanding that historic confidentiality[27] would govern the
same. Disclosing these offers could impair the ability of the Philippines to
deal not only with Japan but with other foreign governments in
future negotiations.

A ruling that Philippine offers in treaty negotiations should now be open to

public scrutiny would discourage future Philippine representatives from
frankly expressing their views during negotiations. While, on first
impression, it appears wise to deter Philippine representatives from entering
into compromises, it bears noting that treaty negotiations, or any negotiation
for that matter, normally involve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of lesser
importance in order to obtain more favorable terms in an area of
greater national interest. Apropos are the following observations of
Benjamin S. Duval, Jr.:

x x x [T]hose involved in the practice of negotiations appear to be in

agreement that publicity leads to grandstanding, tends to freeze
negotiating positions, and inhibits the give-and-take essential to
successful negotiation. As Sissela Bok points out, if negotiators have
more to gain from being approved by their own sides than by making a
reasoned agreement with competitors or adversaries, then they are inclined
to 'play to the gallery . . .'' In fact, the public reaction may leave them
little option. It would be a brave, or foolish, Arab leader who expressed
publicly a willingness for peace with Israel that did not involve the return
of the entire West Bank, or Israeli leader who stated publicly a willingness
to remove Israel's existing settlements from Judea and Samaria in return
for peace.[28] (Emphasis supplied)

Indeed, by hampering the ability of our representatives to compromise,

we may be jeopardizing higher national goals for the sake of securing less
critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this
jurisdiction, the JPEPA negotiations constituting no exception. It bears
emphasis, however, that such privilege is only presumptive. For as Senate
v. Ermita holds, recognizing a type of information as privileged does not
mean that it will be considered privileged in all instances.Only after a
consideration of the context in which the claim is made may it be determined
if there is a public interest that calls for the disclosure of the desired
information, strong enough to overcome its traditionally privileged status.

Whether petitioners have established the presence of such a public interest

shall be discussed later. For now, the Court shall first pass upon the
arguments raised by petitioners against the application of PMPF
v. Manglapus to the present case.

Arguments proffered by petitioners against the application of PMPF

v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the
present case, there being substantial factual distinctions between the two.

To petitioners, the first and most fundamental distinction lies in the

nature of the treaty involved. They stress that PMPF v. Manglapus involved
the Military Bases Agreement which necessarily pertained to matters
affecting national security; whereas the present case involves an economic
treaty that seeks to regulate trade and commerce between
the Philippines and Japan, matters which, unlike those covered by the
Military Bases Agreement, are not so vital to national security to disallow
their disclosure.

Petitioners argument betrays a faulty assumption that information, to be

considered privileged, must involve national security. The recognition
in Senate v. Ermita[29] that executive privilege has encompassed claims of
varying kinds, such that it may even be more accurate to speak of executive
privileges, cautions against such generalization.

While there certainly are privileges grounded on the necessity of

safeguarding national security such as those involving military secrets, not
all are founded thereon. One example is the informers privilege, or the
privilege of the Government not to disclose the identity of a person or
persons who furnish information of violations of law to officers charged
with the enforcement of that law.[30] The suspect involved need not be so
notorious as to be a threat to national security for this privilege to apply in
any given instance.Otherwise, the privilege would be inapplicable in all but
the most high-profile cases, in which case not only would this be contrary to
long-standing practice. It would also be highly prejudicial to law
enforcement efforts in general.

Also illustrative is the privilege accorded to presidential communications,

which are presumed privileged without distinguishing between those which
involve matters of national security and those which do not, the rationale for
the privilege being that
 x x x [a] frank exchange of exploratory ideas and assessments, free from
the glare of publicity and pressure by interested parties, is essential to
protect the independence of decision-makingof those tasked to exercise
Presidential, Legislative and Judicial power. x x x[31] (Emphasis supplied)

In the same way that the privilege for judicial deliberations does not depend
on the nature of the case deliberated upon, so presidential communications
are privileged whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential
communications is not absolute, one significant qualification being that the
Executive cannot, any more than the other branches of government, invoke
a general confidentiality privilege to shield its officials and employees from
investigations by the proper governmental institutions into possible criminal
wrongdoing. [32] This qualification applies whether the privilege is being
invoked in the context of a judicial trial or a congressional investigation
conducted in aid of legislation.[33]

Closely related to the presidential communications privilege is

the deliberative process privilege recognized in the United States. As
discussed by the U.S. Supreme Court inNLRB v. Sears, Roebuck &
Co,[34] deliberative process covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. Notably, the privileged
status of such documents rests, not on the need to protect national
security but, on the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item of discovery
and front page news, the objective of the privilege being to enhance the
quality of agency decisions. [35]

The diplomatic negotiations privilege bears a close resemblance to the

deliberative process and presidential communications privilege. It may be
readily perceived that the rationale for the confidential character of
diplomatic negotiations, deliberative process, and presidential
communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the privilege for
diplomatic negotiations is meant to encourage a frank exchange of
exploratory ideas between the negotiating parties by shielding such
negotiations from public view. Similar to the privilege for presidential
communications, the diplomatic negotiations privilege seeks, through the
same means, to protect the independence in decision-making of the President,
particularly in its capacity as the sole organ of the nation in its external
relations, and its sole representative with foreign nations. And, as with the
deliberative process privilege, the privilege accorded to diplomatic
negotiations arises, not on account of the content of the information per se,
but because the information is part of a process of deliberation which, in
pursuit of the public interest, must be presumed confidential.

The decision of the U.S. District Court, District of Columbia in Fulbright

& Jaworski v. Department of the Treasury[37] enlightens on the close relation
between diplomatic negotiations and deliberative process privileges. The
plaintiffs in that case sought access to notes taken by a member of
the U.S. negotiating team during the
U.S.-French taxtreaty negotiations. Among the points noted therein were
the issues to be discussed, positions which the French and U.S. teams took
on some points, the draft language agreed on, and articles which needed to
be amended. Upholding the confidentiality of those notes, Judge Green ruled,
thus:

Negotiations between two countries to draft a treaty represent a true

example of a deliberative process. Much give-and-take must occur for
the countries to reach an accord. A description of the negotiations at any
one point would not provide an onlooker a summary of the discussions
which could later be relied on as law. It would not be working law as the
points discussed and positions agreed on would be subject to change at any
date until the treaty was signed by the President and ratified by the Senate.

The policies behind the deliberative process privilege support

non-disclosure. Much harm could accrue to the negotiations process if
these notes were revealed. Exposure of the pre-agreement positions of
the French negotiators might well offend foreign governments and
would lead to less candor by the U. S. in recording the events of the
negotiations process. As several months pass in between negotiations,
this lack of record could hinder readily the U. S. negotiating team. Further
disclosure would reveal prematurely adopted policies. If these policies
should be changed, public confusion would result easily.
 Finally, releasing these snapshot views of the negotiations would be
comparable to releasing drafts of the treaty, particularly when the
notes state the tentative provisions and language agreed on. As drafts
of regulations typically are protected by the deliberative process
privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No.
80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded
the same protection. (Emphasis and underscoring supplied)

Clearly, the privilege accorded to diplomatic negotiations follows as a

logical consequence from the privileged character of the deliberative
process.

The Court is not unaware that in Center for International Environmental

Law (CIEL), et al. v. Office of U.S. Trade Representative[38] where the
plaintiffs sought information relating to the just-completed negotiation of a
United States-Chile Free Trade Agreement the same district court, this time
under Judge Friedman, consciously refrained from applying the doctrine
in Fulbright and ordered the disclosure of the information being sought.

Since the factual milieu in CIEL seemed to call for the straight application
of the doctrine in Fulbright, a discussion of why the district court did not
apply the same would help illumine this Courts own reasons for deciding
the present case along the lines of Fulbright.

In both Fulbright and CIEL, the U.S. government cited a statutory basis for
withholding information, namely, Exemption 5 of the Freedom of
Information Act (FOIA).[39] In order to qualify for protection under
Exemption 5, a document must satisfy two conditions: (1) it must be
either inter-agency or intra-agency in nature, and (2) it must be
bothpre-decisional and part of the agency's deliberative or
decision-making process.[40]
Judge Friedman, in CIEL, himself cognizant of a superficial similarity of
context between the two cases, based his decision on what he perceived to
be a significant distinction: he found the negotiators notes that were sought
in Fulbright to be clearly internal, whereas the documents being sought
in CIEL were those produced by or exchanged with an outside party, i.e.
Chile. The documents subject of Fulbright being clearly internal in
character, the question of disclosure therein turned not on the threshold
requirement of Exemption 5 that the document be inter-agency, but on
whether the documents were part of the agency's pre-decisional deliberative
process. On this basis, Judge Friedman found that Judge Green's discussion
[in Fulbright] of the harm that could result from disclosure therefore is
irrelevant, since the documents at issue [in CIEL] are not inter-agency,
and the Court does not reach the question of deliberative
process. (Emphasis supplied)

In fine, Fulbright was not overturned. The court in CIEL merely found the
same to be irrelevant in light of its distinct factual setting. Whether this
conclusion was valid a question on which this Court would not pass the
ruling in Fulbright that [n]egotiations between two countries to draft a
treaty represent a true example of a deliberative process was left standing,
since the CIEL court explicitly stated that it did not reach the question of
deliberative process.

Going back to the present case, the Court recognizes that the
information sought by petitioners includes documents produced and
communicated by a party external to the Philippine government, namely,
the Japanese representatives in the JPEPA negotiations, and to that extent
this case is closer to the factual circumstances of CIEL than those
ofFulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes
the principle articulated in Fulbright that the public policy underlying the
deliberative process privilege requires that diplomatic negotiations should
also be accorded privileged status, even if the documents subject of the
present case cannot be described as purely internal in character.

It need not be stressed that in CIEL, the court ordered the disclosure of
information based on its finding that the first requirement of FOIA
Exemption 5 that the documents be inter-agency was not met. In
determining whether the government may validly refuse disclosure of the
exchanges between the U.S. and Chile, it necessarily had to deal with this
requirement, it being laid down by a statute binding on them.

In this jurisdiction, however, there is no counterpart of the FOIA, nor is

there any statutory requirement similar to FOIA Exemption 5 in
particular. Hence, Philippine courts, when assessing a claim of privilege for
diplomatic negotiations, are more free to focus directly on the issue
of whether the privilege being claimed is indeed supported by public
policy, without having to consider as the CIEL court did if these
negotiations fulfill a formal requirement of being inter-agency. Important
though that requirement may be in the context of domestic negotiations, it
need not be accorded the same significance when dealing with international
negotiations.

There being a public policy supporting a privilege for diplomatic

negotiations for the reasons explained above, the Court sees no reason to
modify, much less abandon, the doctrine in PMPF v. Manglapus.

A second point petitioners proffer in their attempt to differentiate PMPF

v. Manglapus from the present case is the fact that the petitioners therein
consisted entirely of members of the mass media, while petitioners in the
present case include members of the House of Representatives who invoke
their right to information not just as citizens but as members of Congress.

Petitioners thus conclude that the present case involves the right of members
of Congress to demand information on negotiations of international trade
agreements from the Executive branch, a matter which was not raised
in PMPF v. Manglapus.

While indeed the petitioners in PMPF v. Manglapus consisted only of

members of the mass media, it would be incorrect to claim that the doctrine
laid down therein has no bearing on a controversy such as the present, where
the demand for information has come from members of Congress, not only
from private citizens.

The privileged character accorded to diplomatic negotiations does

not ipso facto lose all force and effect simply because the same privilege
is now being claimed under different circumstances. The probability of
the claim succeeding in the new context might differ, but to say that the
privilege, as such, has no validity at all in that context is another matter
altogether.

The Courts statement in Senate v. Ermita that presidential refusals to furnish

information may be actuated by any of at least three distinct kinds of
considerations [state secrets privilege, informers privilege, and a generic
privilege for internal deliberations], and may be asserted, with differing
degrees of success, in the context of either judicial or legislative
investigations,[41] implies that a privilege, once recognized, may be invoked
under different procedural settings. That this principle holds true particularly
with respect to diplomatic negotiations may be inferred from PMPF
v. Manglapus itself, where the Court held that it is the President alone who
negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.
 Clearly, the privilege for diplomatic negotiations may be invoked not
only against citizens demands for information, but also in the context of
legislative investigations.

Hence, the recognition granted in PMPF v. Manglapus to the privileged

character of diplomatic negotiations cannot be considered irrelevant in
resolving the present case, the contextual differences between the two cases
notwithstanding.
As third and last point raised against the application of PMPF
v. Manglapus in this case, petitioners proffer that the socio-political and
historical contexts of the two cases are worlds apart. They claim that the
constitutional traditions and concepts prevailing at the time PMPF
v. Manglapus came about, particularly the school of thought that the
requirements of foreign policy and the ideals of transparency were
incompatible with each other or the incompatibility hypothesis, while valid
when international relations were still governed by power, politics and wars,
are no longer so in this age of international cooperation.[42]

Without delving into petitioners assertions respecting the incompatibility

hypothesis, the Court notes that the ruling in PMPF v. Manglapus is
grounded more on the nature of treaty negotiations as such than on a
particular socio-political school of thought. If petitioners are suggesting that
the nature of treaty negotiations have so changed that [a]n ill-timed speech
by one of the parties or a frank declaration of the concession which are
exacted or offered on both sides no longer lead[s] to widespread propaganda
to block the negotiations, or that parties in treaty negotiations no
longer expect their communications to be governed by historic
confidentiality, the burden is on them to substantiate the same. This
petitioners failed to discharge.

Whether the privilege applies only at certain stages of the negotiation

process

Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a

reasonable amount of confidentiality so as not to jeopardize the diplomatic
process. They argue, however, that the same is privileged only at certain
stages of the negotiating process, after which such information must
necessarily be revealed to the public.[43] They add that the duty to disclose
this information was vested in the government when the negotiations moved
from the formulation and exploratory stage to the firming up of definite
propositions or official recommendations, citing Chavez v.
[44] [45]
PCGG and Chavez v. PEA.

The following statement in Chavez v. PEA, however, suffices to show that

the doctrine in both that case and Chavez v. PCGG with regard to the duty to
disclose definite propositions of the government does not apply to
diplomatic negotiations:

We rule, therefore, that the constitutional right to information includes

official information on on-going negotiations before a final contract. The
information, however, must constitutedefinite propositions by the
government and should not cover recognized exceptions like
privileged information, military and diplomatic secrets and similar
matters affecting national security and public
order. x x x[46] (Emphasis and underscoring supplied)

It follows from this ruling that even definite propositions of the government
may not be disclosed if they fall under recognized exceptions. The privilege
for diplomatic negotiations is clearly among the recognized exceptions, for
the footnote to the immediately quoted ruling cites PMPF
v. Manglapus itself as an authority.

Whether there is sufficient public interest to overcome the claim of

privilege

It being established that diplomatic negotiations enjoy a presumptive

privilege against disclosure, even against the demands of members of
Congress for information, the Court shall now determine whether petitioners
have shown the existence of a public interest sufficient to overcome the
privilege in this instance.
 To clarify, there are at least two kinds of public interest that must be
taken into account. One is the presumed public interest in favor of keeping
the subject information confidential, which is the reason for the privilege
in the first place, and the other is the public interest in favor of disclosure,
the existence of which must be shown by the party asking for
information. [47]

The criteria to be employed in determining whether there is a sufficient

public interest in favor of disclosure may be gathered from cases such as U.S.
v. Nixon,[48] Senate Select Committee on Presidential Campaign Activities v.
Nixon,[49] and In re Sealed Case.[50]

U.S. v. Nixon, which involved a claim of the presidential communications

privilege against the subpoena duces tecum of a district court in
a criminal case, emphasized the need to balance such claim of privilege
against the constitutional duty of courts to ensure a fair administration
of criminal justice.

x x x the allowance of the privilege to withhold evidence that

is demonstrably relevant in a criminal trial would cut deeply into the
guarantee of due process of law and gravely impair the basic function
of the courts. A Presidents acknowledged need for confidentiality in
the communications of his office is general in nature, whereas
the constitutional need for production of relevant evidence in a
criminal proceeding is specific and central to the fair adjudication of a
particular criminal case in the administration of justice. Without
access to specific facts a criminal prosecution may be totally
frustrated. The Presidents broad interest in confidentiality of
communications will not be vitiated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the pending
criminal cases. (Emphasis, italics and underscoring supplied)

Similarly, Senate Select Committee v. Nixon,[51] which involved a

claim of the presidential communications privilege against the
subpoena duces tecum of a Senate committee, spoke of the need to balance
such claim with the duty of Congress to perform its legislative functions.

The staged decisional structure established in Nixon v. Sirica was designed

to ensure that the President and those upon whom he directly relies in the
 performance of his duties could continue to work under a general
assurance that their deliberations would remain confidential. So long
as the presumption that the public interest favors confidentiality can
be defeated only by astrong showing of need by another institution of
government- a showing that the responsibilities of that institution
cannot responsibly be fulfilled without access to records of the
President's deliberations- we believed in Nixon v. Sirica, and continue to
believe, that the effective functioning of the presidential office will not be
impaired. x x x

xxxx

The sufficiency of the Committee's showing of need has come to

depend, therefore, entirely on whether the subpoenaed materials
are critical to the performance of its legislative
functions. x x x (Emphasis and underscoring supplied)

In re Sealed Case[52] involved a claim of the deliberative process and

presidential communications privileges against a subpoena duces tecum of a
grand jury. On the claim of deliberative process privilege, the court stated:

The deliberative process privilege is a qualified privilege and can

be overcome by a sufficient showing of need. This need determination
is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the
deliberative process privilege] is asserted the district court must undertake
a fresh balancing of the competing interests," taking into account factors
such as "the relevance of the evidence," "the availability of other
evidence," "the seriousness of the litigation," "the role of the
government," and the "possibility of future timidity by government
employees. x x x (Emphasis, italics and underscoring supplied)

Petitioners have failed to present the strong and sufficient showing of

need referred to in the immediately cited cases. The arguments they proffer
to establish their entitlement to the subject documents fall short of this
standard.

Petitioners go on to assert that the non-involvement of the Filipino people in

the JPEPA negotiation process effectively results in the bargaining away of
their economic and property rights without their knowledge and participation,
in violation of the due process clause of the Constitution. They claim,
moreover, that it is essential for the people to have access to the initial offers
exchanged during the negotiations since only through such disclosure can
their constitutional right to effectively participate in decision-making be
brought to life in the context of international trade agreements.

Whether it can accurately be said that the Filipino people were not involved
in the JPEPA negotiations is a question of fact which this Court need not
resolve. Suffice it to state that respondents had presented documents
purporting to show that public consultations were conducted on the
JPEPA. Parenthetically, petitioners consider these alleged consultations as
woefully selective and inadequate.[53]

AT ALL EVENTS, since it is not disputed that the offers exchanged by the
Philippine and Japanese representatives have not been disclosed to the public,
the Court shall pass upon the issue of whether access to the documents
bearing on them is, as petitioners claim, essential to their right to participate
in decision-making.

The case for petitioners has, of course, been immensely weakened by the
disclosure of the full text of the JPEPA to the public since September 11,
2006, even as it is still being deliberated upon by the Senate and, therefore,
not yet binding on the Philippines. Were the Senate to concur with the
validity of the JPEPA at this moment, there has already been, in the words
of PMPF v. Manglapus, ample opportunity for discussion before [the treaty]
is approved.

The text of the JPEPA having been published, petitioners have failed to
convince this Court that they will not be able to meaningfully exercise their
right to participate in decision-making unless the initial offers are also
published.

It is of public knowledge that various non-government sectors and private

citizens have already publicly expressed their views on the JPEPA, their
comments not being limited to general observations thereon but on its
specific provisions. Numerous articles and statements critical of the JPEPA
have been posted on the Internet.[54] Given these developments, there is no
basis for petitioners claim that access to the Philippine and Japanese offers is
essential to the exercise of their right to participate in decision-making.

Petitioner-members of the House of Representatives additionally

anchor their claim to have a right to the subject documents on the basis of
Congress inherent power to regulate commerce, be it domestic or
international. They allege that Congress cannot meaningfully exercise the
power to regulate international trade agreements such as the JPEPA without
being given copies of the initial offers exchanged during the negotiations
thereof. In the same vein, they argue that the President cannot exclude
Congress from the JPEPA negotiations since whatever power and authority
the President has to negotiate international trade agreements is derived only
by delegation of Congress, pursuant to Article VI, Section 28(2) of the
Constitution and Sections 401 and 402 of Presidential Decree No. 1464.[55]

The subject of Article VI Section 28(2) of the Constitution is not the

power to negotiate treaties and international agreements, but the power to fix
tariff rates, import and export quotas, and other taxes. Thus it provides:

(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it may
impose, tariff rates, import and export quotas, tonnage and wharfage dues,
and other duties or imposts within the framework of the national
development program of the Government.

As to the power to negotiate treaties, the constitutional basis thereof is

Section 21 of Article VII the article on the Executive Department
which states:

No treaty or international agreement shall be valid and effective unless

concurred in by at least two-thirds of all the Members of the Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is
exclusive to the President, being the sole organ of the nation in its external
relations, was echoed in BAYAN v. Executive Secretary[56] where the Court
held:

By constitutional fiat and by the intrinsic nature of his office, the

President, as head of State, is the sole organ and authority in the
external affairs of the country. In many ways, the President is the
chief architect of the nation's foreign policy; his "dominance in the
field of foreign relations is (then) conceded." Wielding vast powers
and influence, his conduct in the external affairs of the nation,
as Jefferson describes, is executive altogether.

As regards the power to enter into treaties or international

agreements, the Constitution vests the same in the President, subject
only to the concurrence of at least two thirds vote of all the members
of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic
powers granted him no less than by the fundamental law itself. Into the
field of negotiation the Senate cannot intrude, and Congress itself is
powerless to invade it. x x x (Italics in the original; emphasis and
underscoring supplied)

The same doctrine was reiterated even more recently in Pimentel v.

Executive Secretary[57] where the Court ruled:

In our system of government, the President, being the head of state, is

regarded as the sole organ and authority in external relations and is the
country's sole representative with foreign nations. As the chief architect
of foreign policy, the President acts as the country's mouthpiece with
respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with
other states.

Nonetheless, while the President has the sole authority to negotiate

and enter into treaties, the Constitution provides a limitation to his
power by requiring the concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into by him.
x x x (Emphasis and underscoring supplied)
While the power then to fix tariff rates and other taxes clearly belongs to
Congress, and is exercised by the President only by delegation of that body,
it has long been recognized that the power to enter into treaties is vested
directly and exclusively in the President, subject only to the concurrence of
at least two-thirds of all the Members of the Senate for the validity of the
treaty. In this light, the authority of the President to enter into trade
agreements with foreign nations provided under P.D. 1464[58] may be
interpreted as an acknowledgment of a power already inherent in its
office. It may not be used as basis to hold the President or its representatives
accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the Presidents power to enter into treaties is
unlimited but for the requirement of Senate concurrence, since the President
must still ensure that all treaties will substantively conform to all the relevant
provisions of the Constitution.

It follows from the above discussion that Congress, while possessing

vast legislative powers, may not interfere in the field of treaty
negotiations. While Article VII, Section 21 provides for Senate concurrence,
such pertains only to the validity of the treaty under consideration, not to the
conduct of negotiations attendant to its conclusion. Moreover, it is not even
Congress as a whole that has been given the authority to concur as a means
of checking the treaty-making power of the President, but only the Senate.

Thus, as in the case of petitioners suing in their capacity as private citizens,

petitioners-members of the House of Representatives fail to present
a sufficient showing of need that the information sought is critical to the
performance of the functions of Congress, functions that do not include
treaty-negotiation.

Respondents alleged failure to timely claim executive privilege

On respondents invocation of executive privilege, petitioners find the same

defective, not having been done seasonably as it was raised only in their
Comment to the present petition and not during the House Committee
hearings.
That respondents invoked the privilege for the first time only in their
Comment to the present petition does not mean that the claim of privilege
should not be credited.Petitioners position presupposes that an assertion of
the privilege should have been made during the House Committee
investigations, failing which respondents are deemed to have waived it.

When the House Committee and

petitioner-Congressman Aguja requested respondents for copies of the
documents subject of this case, respondents replied that the negotiations
were still on-going and that the draft of the JPEPA would be released once
the text thereof is settled and complete. There was no intimation that the
requested copies are confidential in nature by reason of public policy. The
response may not thus be deemed a claim of privilege by the standards
of Senate v. Ermita, which recognizes as claims of privilege only those
which are accompanied by precise and certain reasons for preserving
the confidentiality of the information being sought.

Respondents failure to claim the privilege during the House Committee

hearings may not, however, be construed as a waiver thereof by the
Executive branch. As the immediately preceding paragraph indicates, what
respondents received from the House Committee and
petitioner-Congressman Aguja were mere requests for information. And
as priorlystated, the House Committee itself refrained from pursuing its
earlier resolution to issue a subpoena duces tecum on account of then
Speaker Jose de Venecias alleged request to Committee Chairperson
Congressman Teves to hold the same in abeyance.

While it is a salutary and noble practice for Congress to refrain from issuing
subpoenas to executive officials out of respect for their office until resort to
it becomes necessary, the fact remains that such requests are not a
compulsory process. Being mere requests, they do not strictly call for an
assertion of executive privilege.
 The privilege is an exemption to Congress power of inquiry.[59] So
long as Congress itself finds no cause to enforce such power, there is no
strict necessity to assert the privilege. In this light, respondents failure to
invoke the privilege during the House Committee investigations did not
amount to a waiver thereof.

The Court observes, however, that the claim of privilege appearing in

respondents Comment to this petition fails to satisfy in full the requirement
laid down in Senate v. Ermitathat the claim should be invoked by the
President or through the Executive Secretary by order of the
President.[60] Respondents claim of privilege is being sustained, however, its
flaw notwithstanding, because of circumstances peculiar to the case.

The assertion of executive privilege by the Executive Secretary, who is one

of the respondents herein, without him adding the phrase by order of the
President, shall be considered as partially complying with the requirement
laid down in Senate v. Ermita. The requirement that the phrase by order of
the President should accompany the Executive Secretarys claim of privilege
is a new rule laid down for the first time in Senate v. Ermita, which was not
yet final and executory at the time respondents filed their Comment to the
petition.[61] A strict application of this requirement would thus be
unwarranted in this case.

Response to the Dissenting Opinion of the Chief Justice

We are aware that behind the dissent of the Chief Justice lies a
genuine zeal to protect our peoples right to information against any abuse of
executive privilege. It is a zeal that We fully share.

The Court, however, in its endeavor to guard against the abuse of

executive privilege, should be careful not to veer towards the opposite
extreme, to the point that it would strike down as invalid even a legitimate
exercise thereof.
 We respond only to the salient arguments of the Dissenting Opinion
which have not yet been sufficiently addressed above.

1. After its historical discussion on the allocation of power over international

trade agreements in the United States, the dissent concludes that it will be
turning somersaults with history to contend that the President is the sole
organ for external relations in that jurisdiction. With regard to this opinion,
We make only the following observations:

There is, at least, a core meaning of the phrase sole organ of the nation in its
external relations which is not being disputed, namely, that the power
to directly negotiate treaties and international agreements is vested by our
Constitution only in the Executive. Thus, the dissent states that Congress has
the power to regulate commerce with foreign nationsbut does not have the
power to negotiate international agreements directly.[62]

What is disputed is how this principle applies to the case at bar.

The dissent opines that petitioner-members of the House of Representatives,

by asking for the subject JPEPA documents, are not seeking
to directly participate in the negotiations of the JPEPA, hence, they cannot
be prevented from gaining access to these documents.

On the other hand, We hold that this is one occasion where the following
ruling in Agan v. PIATCO[63] and in other cases both before and since should
be applied:

This Court has long and consistently adhered to the legal maxim that
those that cannot be done directly cannot be done indirectly. To
declare the PIATCO contracts valid despite the clear statutory prohibition
against a direct government guarantee would not only make a mockery of
what the BOT Law seeks to prevent -- which is to expose the government
to the risk of incurring a monetary obligation resulting from a contract of
loan between the project proponent and its lenders and to which the
Government is not a party to -- but would also render the BOT Law
useless for what it seeks to achieve - to make use of the resources of the
private sector in the financing, operation and maintenance of
infrastructure and development projects which are necessary for national
 growth and development but which the government, unfortunately, could
ill-afford to finance at this point in time.[64]

Similarly, while herein petitioners-members of the House of Representatives

may not have been aiming to participate in the negotiations directly, opening
the JPEPA negotiations to their scrutiny even to the point of giving them
access to the offers exchanged between the Japanese and Philippine
delegations would have made a mockery of what the Constitution sought to
prevent and rendered it useless for what it sought to achieve when it vested
the power of direct negotiation solely with the President.

What the U.S. Constitution sought to prevent and aimed to achieve in

defining the treaty-making power of the President, which our Constitution
similarly defines, may be gathered from Hamiltons explanation of why the
U.S. Constitution excludes the House of Representatives from the
treaty-making process:

x x x The fluctuating, and taking its future increase into account, the
multitudinous composition of that body, forbid us to expect in it those
qualities which are essential to the proper execution of such a
trust. Accurate and comprehensive knowledge of foreign politics; a steady
and systematic adherence to the same views; a nice and uniform sensibility
to national character, decision,secrecy and dispatch; are incompatible with
a body so variable and so numerous. The very complication of the
business by introducing a necessity of the concurrence of so many
different bodies, would of itself afford a solid objection. The greater
frequency of the calls upon the house of representatives, and the greater
length of time which it would often be necessary to keep them together
when convened, to obtain their sanction in the progressive stages of a
treaty, would be source of so great inconvenience and expense, as alone
ought to condemn the project.[65]

These considerations a fortiori apply in this jurisdiction, since the Philippine

Constitution, unlike that of the U.S., does not even grant the Senate the
power to advise the Executive in the making of treaties, but only vests in that
body the power to concur in the validity of the treaty after negotiations have
been concluded.[66] Much less, therefore, should it be inferred that the House
of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access
to the subject JPEPA documents would set a precedent for future
negotiations, leading to the contravention of the public interests articulated
above which the Constitution sought to protect, the subject documents
should not be disclosed.

2. The dissent also asserts that respondents can no longer claim the
diplomatic secrets privilege over the subject JPEPA documents now that
negotiations have been concluded, since their reasons for nondisclosure cited
in the June 23, 2005 letter of Sec. Ermita, and later in their Comment,
necessarily apply only for as long as the negotiations were still pending;

In their Comment, respondents contend that the negotiations of the

representatives of the Philippines as well as of Japan must be allowed to
explore alternatives in the course of the negotiations in the same manner as
judicial deliberations and working drafts of opinions are accorded strict
confidentiality. That respondents liken the documents involved in the
JPEPA negotiations to judicial deliberations and working drafts of
opinions evinces, by itself, that they were claiming confidentiality not
only until, but even after, the conclusion of the negotiations.

Judicial deliberations do not lose their confidential character once a decision

has been promulgated by the courts. The same holds true with respect to
working drafts of opinions, which are comparable to
intra-agency recommendations. Such intra-agency recommendations are
privileged even after the position under consideration by the agency has
developed into a definite proposition, hence, the rule in this jurisdiction that
agencies have the duty to disclose only definite propositions, and not the
inter-agency and intra-agency communications during the stage when
common assertions are still being formulated.[67]

3. The dissent claims that petitioner-members of the House of

Representatives have sufficiently shown their need for the same documents
to overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not
pursue its earlier intention to subpoena the documents. This strongly
undermines the assertion that access to the same documents by the House
Committee is critical to the performance of its legislative functions. If the
documents were indeed critical, the House Committee should have, at the
very least, issued a subpoena duces tecum or, like what the Senate did
in Senate v. Ermita, filed the present petition as a legislative body, rather
than leaving it to the discretion of individual Congressmen whether to
pursue an action or not. Such acts would have served as strong indicia that
Congress itself finds the subject information to be critical to its legislative
functions.

Further, given that respondents have claimed executive privilege,

petitioner-members of the House of Representatives should have, at least,
shown how its lack of access to the Philippine and Japanese offers would
hinder the intelligent crafting of legislation. Mere assertion that the
JPEPA covers a subject matter over which Congress has the power to
legislate would not suffice. As Senate Select Committee v. Nixon[68] held,
the showing required to overcome the presumption favoring confidentiality
turns, not only on the nature and appropriateness of the function in the
performance of which the material was sought, but also the degree to which
the material was necessary to its fulfillment.This petitioners failed to do.

Furthermore, from the time the final text of the JPEPA including its annexes
and attachments was published, petitioner-members of the House of
Representatives have been free to use it for any legislative purpose they may
see fit. Since such publication, petitioners need, if any, specifically for the
Philippine and Japanese offers leading to the final version of the JPEPA, has
become even less apparent.

In asserting that the balance in this instance tilts in favor of disclosing the
JPEPA documents, the dissent contends that the Executive has failed to
show how disclosing them afterthe conclusion of negotiations would impair
the performance of its functions. The contention, with due respect, misplaces
the onus probandi. While, in keeping with the general presumption of
transparency, the burden is initially on the Executive to provide precise and
certain reasons for upholding its claim of privilege, once the Executive is
able to show that the documents being sought are covered by a recognized
privilege, the burden shifts to the party seeking information to overcome the
privilege by a strong showing of need.

When it was thus established that the JPEPA documents are covered by the
privilege for diplomatic negotiations pursuant to PMPF v. Manglapus, the
presumption arose that their disclosure would impair the performance of
executive functions. It was then incumbent on petitioner- requesting parties
to show that they have a strong need for the information sufficient to
overcome the privilege. They have not, however.

4. Respecting the failure of the Executive Secretary to explicitly state that he

is claiming the privilege by order of the President, the same may not be
strictly applied to the privilege claim subject of this case.

When the Court in Senate v. Ermita limited the power of invoking the
privilege to the President alone, it was laying down a new rule for which
there is no counterpart even in theUnited States from which the concept of
executive privilege was adopted. As held in the 2004 case of Judicial Watch,
Inc. v. Department of Justice,[69] citing In re Sealed Case,[70] the issue of
whether a President must personally invoke the [presidential
communications] privilege remains an open question. U.S. v. Reynolds,[71] on
the other hand, held that [t]here must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after
actual personal consideration by that officer.

The rule was thus laid down by this Court, not in adherence to any
established precedent, but with the aim of preventing the abuse of the
privilege in light of its highly exceptional nature. The Courts recognition that
the Executive Secretary also bears the power to invoke the privilege,
provided he does so by order of the President, is meant to avoid laying down
too rigid a rule, the Court being aware that it was laying down a new
restriction on executive privilege. It is with the same spirit that the Court
should not be overly strict with applying the same rule in this peculiar
instance, where the claim of executive privilege occurred before the
judgment in Senate v. Ermita became final.

5. To show that PMPF v. Manglapus may not be applied in the present case,
the dissent implies that the Court therein erred in citing US
v. Curtiss Wright[72] and the book entitled The New American Government
and Its Work[73] since these authorities, so the dissent claims, may not be
used to calibrate the importance of the right to information in the Philippine
setting.

The dissent argues that since Curtiss-Wright referred to a conflict between

the executive and legislative branches of government, the factual setting
thereof was different from that of PMPF v. Manglapus which involved a
collision between governmental power over the conduct of foreign affairs
and the citizens right to information.

That the Court could freely cite Curtiss-Wright a case that upholds the
secrecy of diplomatic negotiations against congressional demands for
information in the course of laying down a ruling on the public right to
information only serves to underscore the principle mentioned earlier that
the privileged character accorded to diplomatic negotiations does not ipso
facto lose all force and effect simply because the same privilege is now
being claimed under different circumstances.

PMPF v. Manglapus indeed involved a demand for information from private

citizens and not an executive-legislative conflict, but so did Chavez v.
PEA[74] which held that the [publics] right to information . . . does not extend
to matters recognized as privileged information under the separation of
powers. What counts as privileged information in an executive-legislative
conflict is thus also recognized as such in cases involving the publics right to
information.

Chavez v. PCGG[75] also involved the publics right to information, yet

the Court recognized as a valid limitation to that right the same privileged
information based on separation of powers closed-door Cabinet meetings,
executive sessions of either house of Congress, and the internal deliberations
of the Supreme Court.

These cases show that the Court has always regarded claims of privilege,
whether in the context of an executive-legislative conflict or a citizens
demand for information, as closely intertwined, such that the principles
applicable to one are also applicable to the other.

The reason is obvious. If the validity of claims of privilege were to be

assessed by entirely different criteria in each context, this may give rise to
the absurd result whereCongress would be denied access to a particular
information because of a claim of executive privilege, but the general
public would have access to the same information, the claim of privilege
notwithstanding.

Absurdity would be the ultimate result if, for instance, the Court adopts the
clear and present danger test for the assessment of claims of privilege
against citizens demands for information. If executive information, when
demanded by a citizen, is privileged only when there is a clear and present
danger of a substantive evil that the State has a right to prevent, it would be
very difficult for the Executive to establish the validity of its claim in each
instance. In contrast, if the demand comes from Congress, the Executive
merely has to show that the information is covered by a recognized privilege
in order to shift the burden on Congress to present a strong showing of
need. This would lead to a situation where it would be more difficult for
Congress to access executive information than it would be for private
citizens.

We maintain then that when the Executive has already shown that an
information is covered by executive privilege, the party demanding the
information must present a strong showing of need, whether that party is
Congress or a private citizen.
The rule that the same showing of need test applies in both these contexts,
however, should not be construed as a denial of the importance of analyzing
the context in which an executive privilege controversy may happen to be
placed. Rather, it affirms it, for it means that the specific need being shown
by the party seeking information in every particularinstance is highly
significant in determining whether to uphold a claim of privilege. This need
is, precisely, part of the context in light of which every claim of privilege
should be assessed.

Since, as demonstrated above, there are common principles that should be

applied to executive privilege controversies across different contexts, the
Court in PMPF v. Manglapusdid not err when it cited
the Curtiss-Wright case.

The claim that the book cited in PMPF v. Manglapus entitled The New
American Government and Its Work could not have taken into account the
expanded statutory right to information in the FOIA assumes that the
observations in that book in support of the confidentiality of treaty
negotiations would be different had it been written after the FOIA.Such
assumption is, with due respect, at best, speculative.

As to the claim in the dissent that [i]t is more doubtful if the same book be
used to calibrate the importance of the right of access to information in the
Philippine setting considering its elevation as a constitutional right, we
submit that the elevation of such right as a constitutional right did not set it
free from the legitimate restrictions of executive privilege which is
itself constitutionally-based.[76] Hence, the comments in that book which
were cited in PMPF v. Manglapus remain valid doctrine.

6. The dissent further asserts that the Court has never used need as a test to
uphold or allow inroads into rights guaranteed under the Constitution. With
due respect, we assert otherwise. The Court has done so before, albeit
without using the term need.
In executive privilege controversies, the requirement that parties present a
sufficient showing of need only means, in substance, that they should show a
public interest in favor of disclosure sufficient in degree to overcome the
claim of privilege.[77] Verily, the Court in such cases engages in a balancing
of interests. Such a balancing of interests is certainly not new in
constitutional adjudication involving fundamental rights. Secretary of Justice
v. Lantion,[78] which was cited in the dissent, applied just such a test.

Given that the dissent has clarified that it does not seek to apply the clear
and present danger test to the present controversy, but the balancing test,
there seems to be no substantial dispute between the position laid down in
this ponencia and that reflected in the dissent as to what test to apply. It
would appear that the only disagreement is on the results of applying that
test in this instance.

The dissent, nonetheless, maintains that it suffices that information is of

public concern for it to be covered by the right, regardless of the publics
need for the information, and that the same would hold true even if they
simply want to know it because it interests them. As has been stated earlier,
however, there is no dispute that the information subject of this case is a
matter of public concern. The Court has earlier concluded that it is a matter
of public concern, not on the basis of any specific need shown by petitioners,
but from the very nature of the JPEPA as an international trade agreement.

However, when the Executive has as in this case invoked the privilege, and
it has been established that the subject information is indeed covered by the
privilege being claimed, can a party overcome the same by merely asserting
that the information being demanded is a matter of public concern, without
any further showing required? Certainly not, for that would render the
doctrine of executive privilege of no force and effect whatsoever as a
limitation on the right to information, because then the sole test in such
controversies would be whether an information is a matter of public concern.

Moreover, in view of the earlier discussions, we must bear in mind that, by

disclosing the documents of the JPEPA negotiations, the Philippine
government runs the grave risk of betraying the trust reposed in it by the
Japanese representatives, indeed, by the Japanese government itself. How
would the Philippine government then explain itself when that
happens? Surely, it cannot bear to say that it just had to release the
information because certain persons simply wanted to know it because it
interests them.

Thus, the Court holds that, in determining whether an information is

covered by the right to information, a specific showing of need for such
information is not a relevant consideration, but only whether the same is a
matter of public concern. When, however, the government has claimed
executive privilege, and it has established that the information is indeed
covered by the same, then the party demanding it, if it is to overcome the
privilege, must show that that the information is vital, not simply for the
satisfaction of its curiosity, but for its ability to effectively and reasonably
participate in social, political, and economic decision-making.[79]
7. The dissent maintains that [t]he treaty has thus entered the ultimate stage
where the people can exercise their right to participate in the discussion
whether the Senate should concur in its ratification or not. (Emphasis
supplied) It adds that this right will be diluted unless the people can have
access to the subject JPEPA documents. What, to the dissent, is a dilution of
the right to participate in decision-making is, to Us, simply a recognition of
the qualified nature of the publics right to information. It is beyond dispute
that the right to information is not absolute and that the doctrine of executive
privilege is a recognized limitation on that right.

Moreover, contrary to the submission that the right to participate in

decision-making would be diluted, We reiterate that our people have been
exercising their right to participate in the discussion on the issue of the
JPEPA, and they have been able to articulate their different opinions without
need of access to the JPEPA negotiation documents.

Thus, we hold that the balance in this case tilts in favor of executive
privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate
Select Committee case, and In re Sealed Case, are similarly applicable to the
present controversy, the dissent cites the caveat in the Nixon case that the
U.S. Court was there addressing only the Presidents assertion of privilege in
the context of a criminal trial, not a civil litigation nor a congressional
demand for information. What this caveat means, however, is only that
courts must be careful not to hastily apply the ruling therein to other
contexts. It does not, however, absolutely mean that the principles applied in
that case may never be applied in such contexts.

Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on
claims of executive privilege in contexts other than a criminal trial, as in the
case of Nixon v. Administrator of General Services[80] which involved former
President Nixons invocation of executive privilege to challenge the
constitutionality of the Presidential Recordings and Materials Preservation
Act[81] and the above-mentioned In re Sealed Case which involved a claim of
privilege against a subpoena duces tecum issued in a grand jury
investigation.

Indeed, in applying to the present case the principles found in U.S. v.

Nixon and in the other cases already mentioned, We are merely affirming
what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate
Committee on Accountability[82] a case involving an executive-legislative
conflict over executive privilege. That dissenting opinion stated that,
while Nixon was not concerned with the balance between the Presidents
generalized interest in confidentiality and congressional demands for
information, [n]onetheless the [U.S.] Court laid down principles and
procedures that can serve as torch lights to illumine us on the scope and
use of Presidential communication privilege in the case at bar.[83] While
the Court was divided in Neri, this opinion of the Chief Justice was not
among the points of disagreement, and We similarly hold now that
the Nixon case is a useful guide in the proper resolution of the present
controversy, notwithstanding the difference in context.
Verily, while the Court should guard against the abuse of executive
privilege, it should also give full recognition to the validity of the
privilege whenever it is claimed within the proper bounds of executive
power, as in this case. Otherwise, the Court would undermine its own
credibility, for it would be perceived as no longer aiming to strike a balance,
but seeking merely to water down executive privilege to the point of
irrelevance.

Conclusion

To recapitulate, petitioners demand to be furnished with a copy of the full

text of the JPEPA has become moot and academic, it having been made
accessible to the public sinceSeptember 11, 2006. As for their demand for
copies of the Philippine and Japanese offers submitted during the JPEPA
negotiations, the same must be denied, respondents claim of executive
privilege being valid.

Diplomatic negotiations have, since the Court promulgated its Resolution

in PMPF v. Manglapus on September 13, 1988, been recognized as
privileged in this jurisdiction and the reasons proffered by petitioners against
the application of the ruling therein to the present case have not persuaded
the Court. Moreover, petitioners both private citizens and members of the
House of Representatives have failed to present a sufficient showing of
need to overcome the claim of privilege in this case.

That the privilege was asserted for the first time in respondents Comment to
the present petition, and not during the hearings of the House Special
Committee on Globalization, is of no moment, since it cannot be interpreted
as a waiver of the privilege on the part of the Executive branch.

For reasons already explained, this Decision shall not be interpreted as

departing from the ruling in Senate v. Ermita that executive privilege should
be invoked by the President or through the Executive Secretary by order of
the President.
 WHEREFORE, the petition is DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES- SANTIAGO

Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

RENATO C. CORONA ADOLFO S. AZCUNA

Associate Justice Associate Justice
 DANTE O. TINGA
Associate Justice MINITA V. CHICO-NAZARIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice ANTONIO EDUARDO B. NACHURA
Associate Justice

RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

*
In the case title as indicated in the petition, only the name of Usec. Thomas G. Aquino appears in the
portion for Respondents, to wit: HON. THOMAS G. AQUINO, in his capacity as Chairman and Chief
Delegate of the Philippine Coordinating Committee for the Japan-Philippines Economic Partnership
Agreement, et al. (Underscoring supplied) The other respondents are enumerated in the body of the
petition. (Rollo, pp. 20-23) The Court motu proprio included the names of these other respondents in
the case title to conform to Sec. 1, par. 2, Rule 7 of the Rules of Civil Procedure, as well as the
capacities in which they are being sued. Moreover, it inserted therein that respondent Usec. Aquino, as
stated in the petition, is also being sued in his capacity as DTI Undersecretary.
[1]
Effective May 28, 2003.
[2]
Annex F of Petition, rollo, p. 95.
[3]
The Petition quoted the following statement of Congressman Teves appearing in the transcript of the
Committee hearing held on October 12, 2005:
THE CHAIRPERSON. Now I call on Usec. Aquino to furnish us a copy of the draft JPEPA and enunciate
to this body the positive as well as the negative impact of said agreement. Is this the draft that the
government will sign in December or this will still be subjected to revisions in the run-up to its
signing? x x x We requested also to subpoena this but then the Speaker requested me to hold
in abeyance because he wanted to get a (sic) consent of the President before we can x xx the
department can furnish us a copy of this agreement. (Rollo, p. 32)
[4]
Id. at 16.
[5]
Annex A, Comment, rollo, p. 207.
[6]
Respondents Manifestation dated September 12, 2007; vide Business Philippines: A Department of Trade
and Industry Website at www.business.gov.ph,
particularly www.business.gov.ph/DTI_News.php?contentID=136 (visited August 9, 2007).
[7]
Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987; 150 SCRA 530, 535.
[8]
G.R. No. 158088, July 6, 2005; 462 SCRA 622, 630-631.
[9]
Supra note 7 at 536.
[10]
Reply to the Comment of the Solicitor General, rollo, p. 319 (underscoring supplied).
[11]
Business Philippines: A Department of Trade and Industry
Website, http://www.business.gov.ph/filedirectory/JPEPA.pdf, accessed on June 12, 2007.
[12]
By Resolution dated August 28, 2007, this Court directed the parties to manifest whether the Philippine
and Japanese offers have been made accessible to the public just like the full text of the JPEPA and, if
not, whether petitioners still intend to pursue their prayer to be provided with copies thereof. In
compliance, petitioners manifested that the offers have not yet been made public and reiterated their
prayer that respondents be compelled to provide them with copies thereof, including all pertinent
attachments and annexes thereto (Manifestation and Motion dated September 17, 2007). Respondents,
on the other hand, asserted that the offers have effectively been made accessible to the public
since September 11, 2006 (Manifestation dated September 12, 2007). Respondents claim does not
persuade, however. By their own manifestation, the documents posted on the DTI website on that date
were only the following: (1) Joint Statement on the Occasion of the Signing of the Agreement between
Japan and the Republic of the Philippines, (2) the full text of the JPEPA itself and its annexes, (3) the
JPEPA implementing Agreement, and (4) resource materials on the JPEPA including presentations of
the [DTI] during the hearings of the Senates Committee on Trade and Commerce and Committee on
Economic Affairs. While these documents no doubt provide very substantial information on the JPEPA,
 the publication thereof still falls short of addressing the prayer of petitioners to be provided with copies
of the Philippine and Japanese offers. Thus, the petition, insofar as it prays for access to these offers,
has not become moot.
[13]
CONSTITUTION, Art. III, Sec. 7.
[14]
Id. at Art. II, Sec. 28.
[15]
Id. at Art. XIII, Sec. 16.
[16]
Supra note 7 at 541.
[17]
314 Phil. 150 (1995).
[18]
360 Phil. 133 (1998).
[19]
433 Phil. 506 (2002).
[20]
G.R. No. 169777, April 20, 2006, 488 SCRA 1.
[21]
Id. at 51.
[22]
Rollo, pp. 191-192.
[23]
360 Phil. 133, 764 (1998), citing V RECORD OF THE CONSTITUTIONAL COMMISSION 25
(1986).
[24]
G.R. No. 84642, Resolution of the Court En Banc dated September 13, 1988.
[25]
Specifically, petitioners therein asked that the Court order respondents to (1) open to petitioners their
negotiations/sessions with the U.S. counterparts on the agreement; (2) reveal and/or give petitioners
access to the items which they have already agreed upon; and (3) reveal and/or make accessible the
respective positions on items they have not agreed upon, particularly the compensation package for the
continued use by the U.S. of their military bases and facilities in the Philippines.
[26]
299 U.S. 304 (1936).
[27]
Vide Xerox Corp. v. U.S. (12 Cl.Ct. 93). Against the claim of a taxpayer for the production of a letter
from the Inland Revenue of the United Kingdom to the associate commissioner of the Internal Revenue
Service (IRS), defendant asserted a claim of privilege, relying on the affidavit of Lawrence B. Gibbs,
Commissioner of IRS, which stated that the production of the letter would impair the United States
government's ability to deal with the tax authorities of foreign governments * * * by breaching
the historic confidentiality of negotiations between the United States and foreign sovereigns * * *.
(Emphasis supplied) The U.S. court therein ruled thus: Given the context in which the letter in question
was written, it is reasonable to conclude that frank and honest expression of views on the treaty
language in issue were expressed, views that ostensibly were expressed in the belief that historic
confidentiality would govern such expressions. (Underscoring supplied)
[28]
B. DuVal, Jr., Project Director, American Bar Foundation. B.A., 1958, University of Virginia; J.D.,
1961, Yale University, THE OCCASIONS OF SECRECY (47 U. Pitt. L. Rev. 579).
[29]
Supra note 20 at 46.
[30]
Ibid.
[31]
Supra note 19 at 189.
[32]
Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 162 U.S.App.D.C.
183.
[33]
Vide Arnault v. Nazareno, 87 PHIL. 29, 46 (1950): In the present case the jurisdiction of the Senate, thru
the Special Committee created by it, to investigate the Buenavista and Tambobong estates deal is not
challenged by the petitioner; and we entertain no doubt as to the Senates authority to do so and as to
the validity of Resolution No. 8 hereinabove quoted. The transaction involved a questionable and
allegedly unnecessary and irregular expenditure of no less than P5,000,000 of public funds, of which
Congress is the constitutional guardian. x x x
[34]
421 U.S., at 150, 95 S.Ct. 1504, reiterated in Department of the Interior and Bureau of Indian Affairs v.
Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060.
[35]
Id. at 151, 95 S.Ct. 1504 (emphasis supplied).
[36]
Supra note 24.
[37]
545 F.Supp. 615, May 28, 1982.
[38]
237 F.Supp.2d 17.
[39]
5 U.S.C. 552(b)(5).
[40]
CIEL v. Office of U.S. Trade Representative, 237 F.Supp.2d 17. Vide Department of the Interior and
Bureau of Indian Affairs v. Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060:
Exemption 5 protects from disclosure inter-agency or intra-agency memorandums or letters which
 would not be available by law to a party other than an agency in litigation with the agency. 5 U.S.C.
552(b)(5). To qualify, a document must thus satisfy two conditions: its source must be a Government
agency, and it must fall within the ambit of a privilege against discovery under judicial standards that
would govern litigation against the agency that holds it.
[41]
Supra note 20 at 46 (emphasis supplied).
[42]
Petitioners expound as follows:
It has been 18 years since the PMPF v. Manglapus case, and the world has changed considerably in that
span of time. The Berlin Wall fell in 1989, bringing down with it the Cold War and its attendant
hostilities, and ushering in a new era of globalization and international economic cooperation as
we know it. The Philippines now finds itself part of an international economic community as a
member of both the ASEAN Free Trade Area (AFTA) and the World Trade Organization
(WTO). Domestically, this Honorable Court has repeatedly upheld the peoples right to information
on matters of public concern, allowing ordinary Filipino citizens to inquire into various
government actions such as GSIS loans to public officials, settlement of Marcos ill-gotten wealth,
and sale of reclaimed land to foreign corporations. (Rollo, p. 326)
[43]
Rollo, pp. 50-51.
[44]
Supra note 18.
[45]
Supra note 19.
[46]
433 Phil. 506, 534 (2002), citing PMPF v. Manglapus, supra note 24 and Chavez v. PCGG, supra note
18.
[47]
In re Sealed Case (121 F.3d 729, 326 U.S.App.D.C. 276 [1997]) states thus: Nixon, GSA, Sirica, and the
other Nixon cases all employed a balancing methodology in analyzing whether, and in what
circumstances, the presidential communications privilege can be overcome. Under this methodology,
these opinions balanced the public interests served by protecting the President's confidentiality
in a particular context with those furthered by requiring disclosure.(Emphasis supplied)
[48]
418 U.S. 683 (1974).
[49]
Supra note 31.
[50]
Supra note 47.
[51]
Supra note 32
[52]
Supra note 47.
[53]
Rollo, p. 349.
[54]
For a small sampling, vide Primer sa Japan-Philippine Economic Partnership Agreement (JPEPA)
at www.bayan.ph/downloads/Primer%20on%20jpepa.pdf; A RESOLUTION EXPRESSING
SUPPORT TO THE CALLS FOR THE SENATE TO REJECT THE JAPAN-PHILIPPINES
PARTNERSHIP AGREEMENT (JPEPA)
at www.nccphilippines.org/indexfiles/Page1562.htm; JPEPA Ratification: Threat Economics at
http://www.aer.ph/index.php?option/=com_content&task=view&id=632&Itemid=63 (all sites visited
on February 2, 2008).
[55]
Entitled A DECREE TO CONSOLIDATE AND CODIFY ALL THE TARIFF AND CUSTOMS
LAWS OF THE PHILIPPINES, promulgated June 11, 1978. In light of the arguments of petitioners,
the most salient portion of the provisions cited by them is Section 402(1) which states, in part: For the
purpose of expanding foreign markets x x x in establishing and maintaining better relations between
the Philippines and other countries, the President is authorized from time to time:
(1.1) To enter into trade agreements with foreign governments or instrumentalities thereof;
xxx
[56]
396 Phil. 623, 663 (2000).
[57]
G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632-633.
[58]
Supra note 55.
[59]
G.R. No. 169777, April 20, 2006, 488 SCRA 1, 44.
[60]
Id. at 68.
[61]
According to the records of this Court, the judgment in Senate v. Ermita was entered on July 21,
2006. Respondents filed their Comment on May 15, 2006.
[62]
Revised Dissenting Opinion, p. 15 (Emphasis and underscoring supplied).
[63]
450 PHIL. 744 (2003), penned by then Associate Justice Puno.
[64] Id., at 833 (Italics in the original, emphasis and underscoring supplied)
[65] The Federalist, No. 75 (Italics in the original, emphasis and underscoring supplied).
[66]
Article II Section 2 of the U.S. Constitution states: He [the President] shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present
concur x x x. (Emphasis and underscoring supplied) On the other hand, Article VII Section 21 of the
Philippine Constitution states: No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
[67]
Supra note 18.
[68]
162 U.S. App.D.C. 183, 189.
[69]
365 F.3d 1108, 361 U.S.App.D.C. 183 (2004).
[70]
Supra note 47.
[71]
345 U.S. 1, 73 S.Ct. 528 (1953)
[72]
Supra at note 63.
[73]
Supra at note 64.
[74]
Supra note 19.
[75]
Supra at note 18.
[76]
U.S. v. Nixon (418 U.S. 683) states: Nowhere in the Constitution x x x is there any explicit reference to a
privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a
Presidents powers, it is constitutionally based. (Emphasis, italics and underscoring supplied)
[77]
In re Sealed Case (121 F.3d 729) states thus: Nixon, GSA, Sirica, and the other Nixon cases all
employed a balancing methodology in analyzing whether, and in what circumstances, the presidential
communications privilege can be overcome.Under this methodology, these opinions balanced
the public interests served by protecting the Presidents confidentiality in a particular context
with those furthered by requiring disclosure. (Emphasis and underscoring supplied)
[78]
G.R. No. 139465, October 17, 2000, penned by then Associate Justice Reynato S. Puno.
In that case, respondent Mark Jimenez claimed under the due process clause the right to
notice and hearing in the extradition proceedings against him. Consider the following enlightening
disquisition of the Court:
In the case at bar, on one end of the balancing pole is the private respondents claim to
due process predicated on Section 1, Article III of the Constitution, which provides that
No person shall be deprived of life, liberty, or property without due process of
law Without a bubble of a doubt, procedural due process of law lies at the foundation of a
civilized society which accords paramount importance to justice and fairness. It has to be
accorded the weight it deserves.
This brings us to the other end of the balancing pole. Petitioner avers that the Court
should give more weight to our national commitment under the RP-US Extradition Treaty
to expedite the extradition to the United States of persons charged with violation of some
of its laws. Petitioner also emphasizes the need to defer to the judgment of the Executive
on matters relating to foreign affairs in order not to weaken if not violate the principle of
separation of powers.
Considering that in the case at bar, the extradition proceeding is only at its evaluation
stage, the nature of the right being claimed by the private respondent is nebulous and the
degree of prejudice he will allegedly suffer is weak, we accord greater weight to the
interests espoused by the government thru the petitioner Secretary of Justice.
x x x (Emphasis, italics, and underscoring supplied)
[79]
Constitution, Art. XIII, Sec. 16.
[80]
433 U.S. 425.
[81]
88 Stat. 1695.
[82]
G.R. No. 180643, March 25, 2008.
[83]
Emphasis supplied.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and

GODOFREDO L. MANZANAS,petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila,
Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice,
LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C.
AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,

vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial
Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE
PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE
MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF
MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner,

vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL
OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding
Judge of Branch 35 of the Regional Trial Court, at Manila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R.
Nos. 82827 and 83979.

RESOLUTION

PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners
were denied due process when informations for libel were filed against them although the
finding of the existence of a prima faciecase was still under review by the Secretary of Justice
and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran
were violated when respondent RTC judge issued a warrant for his arrest without personally
examining the complainant and the witnesses, if any, to determine probable cause; and (3)
whether or not the President of the Philippines, under the Constitution, may initiate criminal
proceedings against the petitioners through the filing of a complaint-affidavit.

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the
Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution
of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case
against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied
by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive
Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for
reconsideration was denied by the Executive Secretary on May 16, 1988. With these
developments, petitioners' contention that they have been denied the administrative remedies
available under the law has lost factual support.

It may also be added that with respect to petitioner Beltran, the allegation of denial of due
process of law in the preliminary investigation is negated by the fact that instead of submitting
his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his
right to refute the complaint by filing counter-affidavits. Due process of law does not require
that the respondent in a criminal case actually file his counter-affidavits before the preliminary
investigation is deemed completed. All that is required is that the respondent be given the
opportunity to submit counter-affidavits if he is so minded.

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination nder oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant
of authority by the 1973 Constitution to issue warrants to "other responsible officers as may
be authorized by law," has apparently convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant and his witnesses in his
determination of probable cause for the issuance of warrants of arrest. This is not an accurate
interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of arrest, the judge is not required
to personally examine the complainant and his witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down
guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated
and clarified in this resolution.

It has not been shown that respondent judge has deviated from the prescribed procedure.
Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of
discretion amounting to lack or excess of jurisdiction cannot be sustained.

Anent the third issue, petitioner Beltran argues that "the reasons which necessitate
presidential immunity from suit impose a correlative disability to file suit." He contends that if
criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she
may subsequently have to be a witness for the prosecution, bringing her under the trial court's
jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity
from suit, as by testifying on the witness stand, she would be exposing herself to possible
contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit is to assure
the exercise of Presidential duties and functions free from any hindrance or distraction,
considering that being the Chief Executive of the Government is a job that, aside from
requiring all of the office holder's time, also demands undivided attention.

But this privilege of immunity from suit, pertains to the President by virtue of the office and
may be invoked only by the holder of the office; not by any other person in the President's
behalf. Thus, an accused in a criminal case in which the President is complainant cannot
raise the presidential privilege as a defense to prevent the case from proceeding against such
accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the
privilege. Thus, if so minded the President may shed the protection afforded by the privilege
and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to
waive it is solely the President's prerogative. It is a decision that cannot be assumed and
imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel
because of the privileged character or the publication, the Court reiterates that it is not a trier
of facts and that such a defense is best left to the trial court to appreciate after receiving the
evidence of the parties.

As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling
effect" on press freedom, the Court finds no basis at this stage to rule on the point.

The petitions fail to establish that public respondents, through their separate acts, gravely
abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and
prohibition prayed for cannot issue.

WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of

jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions
in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the
Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated
April 26, 1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Grio-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in
its opening statement. However, as to the more important issue on whether or not the
prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to
reserve my vote. I believe this is the more important issue in these petitions and it should be
resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court
should not hesitate to quash a criminal prosecution in the interest of more enlightened and
substantial justice where it is not alone the criminal liability of an accused in a seemingly
minor libel case which is involved but broader considerations of governmental power versus a
preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic
and one who enjoys unprecedented public support asks for the prosecution of a newspaper
columnist, the publisher and chairman of the editorial board, the managing editor and the
business manager in a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted
personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which
tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a
simple prosecution for libel. We have as complainant a powerful and popular President who
heads the investigation and prosecution service and appoints members of appellate courts
but who feels so terribly maligned that she has taken the unorthodox step of going to court
inspite of the invocations of freedom of the press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to
fiscals and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of
sensitive issues and public affairs, this Court and not a lower tribunal should draw the
demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public
life may suffer under a hostile and unjust accusation; the wound can be assuaged with the
balm of a clear conscience." The Court pointed out that while defamation is not authorized,
criticism is to be expected and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such exalted
position that the citizen must speak of him only with bated breath. "In the eye of our
Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights
with every other man." (at p. 900)

In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to create
sensation. It would seem that what would ordinarily be slander if directed at the typical person
should be examined from various perspectives if directed at a high government official. Again,
the Supreme Court should draw this fine line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977])
that a prosecution for libel lacks justification if the offending words find sanctuary within the
shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed
to continue, where after discounting the possibility that the words may not be really that
libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of
newspapermen, especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his daily
column, the editors tell their people to lay off certain issues or certain officials, the effect on a
free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I
must call attention to our decisions which caution that "no inroads on press freedom should be
allowed in the guise of punitive action visited on what otherwise should be characterized as
libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v.
Gutierrez, supra).

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give any
more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C.
P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt,
advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and
the other various other formulae for the repression of expression that have been challenged in
this Court, libel can claim no talismanic immunity from constitutional limitations. It must be
measured by standards that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty; and
that this should be a fundamental principle of the American government. They recognized the
risk to which all human institutions are subject. But they knew that order cannot be secured
merely through fear of punishment for its infraction; that it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is
good ones. Believing in the power of reason as applied through public discussion, they
eschewed silence coerced by lawthe argument of force in its worst form. ...

Thus we consider this case against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide open, and that it
may well include vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials. ... (at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that
Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L.
Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free
speech aspects of these petitions, should not a differentiated approach to their particular
liabilities be taken instead of lumping up everybody with the offending columnist? I realize that
the law includes publishers and editors but perhaps the "chilling effect" issue applies with
singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is no
question that, ordinarily, libel is not protected by the free speech clause but we have to
understand that some provocative words, which if taken literally may appear to shame or
disparage a public figure, may really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal prosecution in the type of case
now before us dampen the vigor and limit the variety of public debate? There are many other
questions arising from this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to
narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them.
The first issue on prematurity is moot. The second issue discusses a procedure now
embodied in the recently amended Rules of Court on how a Judge should proceed before he
issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an
incumbent President should not be sued. At the same time, the President cannot stand by
helplessly bereft of legal remedies if somebody vilifies or maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take
exception. I know that most of our fiscals and judges are courageous individuals who would
not allow any considerations of possible consequences to their careers to stand in the way of
public duty. But why should we subject them to this problem? And why should we allow the
possibility of the trial court treating and deciding the case as one for ordinary libel without
bothering to fully explore the more important areas of concern, the extremely difficult issues
involving government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit
myself to reiterating the dissenting words of Mr. Justice Jackson in the American case
of Beaurnhais v. Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that criminal
libel laws are consistent with the concept of ordered liberty only when applied with safeguards
evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.
Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in
its opening statement. However, as to the more important issue on whether or not the
prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to
reserve my vote. I believe this is the more important issue in these petitions and it should be
resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court
should not hesitate to quash a criminal prosecution in the interest of more enlightened and
substantial justice where it is not alone the criminal liability of an accused in a seemingly
minor libel case which is involved but broader considerations of governmental power versus a
preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic
and one who enjoys unprecedented public support asks for the prosecution of a newspaper
columnist, the publisher and chairman of the editorial board, the managing editor and the
business manager in a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted
personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which
tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a
simple prosecution for libel. We have as complainant a powerful and popular President who
heads the investigation and prosecution service and appoints members of appellate courts
but who feels so terribly maligned that she has taken the unorthodox step of going to court
inspite of the invocations of freedom of the press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to
fiscals and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of
sensitive issues and public affairs, this Court and not a lower tribunal should draw the
demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public
life may suffer under a hostile and unjust accusation; the wound can be assuaged with the
balm of a clear conscience." The Court pointed out that while defamation is not authorized,
criticism is to be expected and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such exalted
position that the citizen must speak of him only with bated breath. "In the eye of our
Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights
with every other man." (at p. 900)

In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to create
sensation. It would seem that what would ordinarily be slander if directed at the typical person
should be examined from various perspectives if directed at a high government official. Again,
the Supreme Court should draw this fine line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977])
that a prosecution for libel lacks justification if the offending words find sanctuary within the
shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed
to continue, where after discounting the possibility that the words may not be really that
libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of
newspapermen, especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his daily
column, the editors tell their people to lay off certain issues or certain officials, the effect on a
free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I
must call attention to our decisions which caution that "no inroads on press freedom should be
allowed in the guise of punitive action visited on what otherwise should be characterized as
libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v.
Gutierrez, supra).< re||a n 1 w>

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give any
more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C.
P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt,
advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and
the other various other formulae for the repression of expression that have been challenged in
this Court, libel can claim no talismanic immunity from constitutional limitations. It must be
measured by standards that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty; and
that this should be a fundamental principle of the American government. They recognized the
risk to which all human institutions are subject. But they knew that order cannot be secured
merely through fear of punishment for its infraction; that it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is
good ones. Believing in the power of reason as applied through public discussion, they
eschewed silence coerced by lawthe argument of force in its worst form. ...

Thus we consider this case against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide open, and that it
may well include vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials. ... (at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that
Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L.
Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free
speech aspects of these petitions, should not a differentiated approach to their particular
liabilities be taken instead of lumping up everybody with the offending columnist? I realize that
the law includes publishers and editors but perhaps the "chilling effect" issue applies with
singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is no
question that, ordinarily, libel is not protected by the free speech clause but we have to
understand that some provocative words, which if taken literally may appear to shame or
disparage a public figure, may really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal prosecution in the type of case
now before us dampen the vigor and limit the variety of public debate? There are many other
questions arising from this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to
narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them.
The first issue on prematurity is moot. The second issue discusses a procedure now
embodied in the recently amended Rules of Court on how a Judge should proceed before he
issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an
incumbent President should not be sued. At the same time, the President cannot stand by
helplessly bereft of legal remedies if somebody vilifies or maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take
exception. I know that most of our fiscals and judges are courageous individuals who would
not allow any considerations of possible consequences to their careers to stand in the way of
public duty. But why should we subject them to this problem? And why should we allow the
possibility of the trial court treating and deciding the case as one for ordinary libel without
bothering to fully explore the more important areas of concern, the extremely difficult issues
involving government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit
myself to reiterating the dissenting words of Mr. Justice Jackson in the American case
of Beaurnhais v. Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that criminal
libel laws are consistent with the concept of ordered liberty only when applied with safeguards
evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.
 SUPREME COURT OF THE UNITED STATES
Syllabus

CLINTON v. JONES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 95-1853. Argued January 13, 1997 -- Decided May 27, 1997
Respondent sued under 42 U.S.C. 1983 and 1985 and Arkansas
law to recover damages from petitioner, the current President
of the United States, alleging, inter alia, that while he was
Governor of Arkansas, petitioner made "abhorrent" sexual
advances to her, and that her rejection of those advances led to
punishment by her supervisors in the state job she held at the
time. Petitioner promptly advised the Federal District Court
that he would file a motion to dismiss on Presidential immunity
grounds, and requested that all other pleadings and motions be
deferred until the immunity issue was resolved. After the court
granted that request, petitioner filed a motion to dismiss
without prejudice and to toll any applicable statutes of
limitation during his Presidency. The District Judge denied
dismissal on immunity grounds and ruled that discovery could go
forward, but ordered any trial stayed until petitioner's
Presidency ended. The Eighth Circuit affirmed the dismissal
denial, but reversed the trial postponement as the "functional
equivalent" of a grant of temporary immunity to which
petitioner was not constitutionally entitled. The court
explained that the President, like other officials, is subject to
the same laws that apply to all citizens, that no case had been
found in which an official was granted immunity from suit for his
unofficial acts, and that the rationale for official immunity is
inapposite where only personal, private conduct by a President
is at issue. The court also rejected the argument that, unless
immunity is available, the threat of judicial interference with
the Executive Branch would violate separation of powers.
Held:
1. This Court need not address two important constitutional
issues not encompassed within the questions presented by the
certiorari petition: (1) whether a claim comparable to
petitioner's assertion of immunity might succeed in a state
tribunal, and (2) whether a court may compel the President's
attendance at any specific time or place. Pp. 7-9.
2. Deferral of this litigation until petitioner's Presidency ends is
not constitutionally required. Pp. 7-28.
(a) Petitioner's principal submission--that in all but the most
exceptional cases, the Constitution affords the President
temporary immunity from civil damages litigation arising out of
events that occurred before he took office--cannot be sustained
on the basis of precedent. The principal rationale for affording
Presidents immunity from damages actions based on their
official acts--i.e., to enable them to perform their designated
functions effectively without fear that a particular decision may
give rise to personal liability, see, e.g., Nixonv. Fitzgerald, 457
U.S. 731, 749, 752, and n. 32--provides no support for an
immunity for unofficial conduct. Moreover, immunities for acts
clearly within official capacity are grounded in the nature of
the function performed, not the identity of the actor who
performed it. Forrester v. White, 484 U.S. 219, 229. The Court
is also unpersuaded by petitioner's historical evidence, which
sheds little light on the question at issue, and is largely
canceled by conflicting evidence that is itself consistent with
both the doctrine of presidential immunity as set forth
in Fitzgerald, and rejection of the immunity claim in this case.
Pp. 9-15.
(b) The separation of powers doctrine does not require federal
courts to stay all private actions against the President until he
leaves office. Even accepting the unique importance of the
Presidency in the constitutional scheme, it does not follow that
that doctrine would be violated by allowing this action to
proceed. The doctrine provides a self executing safeguard
against the encroachment or aggrandizement of one of the
three co equal branches of Government at the expense of
another. Buckley v. Valeo, 424 U.S. 1, 122. But in this case
there is no suggestion that the Federal Judiciary is being asked
to perform any function that might in some way be described as
"executive." Respondent is merely asking the courts to exercise
their core Article III jurisdiction to decide cases and
controversies, and, whatever the outcome, there is no
possibility that the decision here will curtail the scope of the
Executive Branch's official powers. The Court rejects
petitioner's contention that this case--as well as the potential
additional litigation that an affirmance of the Eighth Circuit's
judgment might spawn--may place unacceptable burdens on the
President that will hamper the performance of his official duties.
That assertion finds little support either in history, as evidenced
by the paucity of suits against sitting Presidents for their private
actions, or in the relatively narrow compass of the issues raised
in this particular case. Of greater significance, it is settled that
the Judiciary may severely burden the Executive Branch by
reviewing the legality of the President's official conduct,
see e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
and may direct appropriate process to the President himself,
see e.g., United States v. Nixon, 418 U.S. 683. It must follow
that the federal courts have power to determine the legality of
the President's unofficial conduct. The reasons for rejecting a
categorical rule requiring federal courts to stay private actions
during the President's term apply as well to a rule that would, in
petitioner's words, require a stay "in all but the most
exceptional cases." Pp. 15-24.
(c) Contrary to the Eighth Circuit's ruling, the District Court's
stay order was not the "functional equivalent" of an
unconstitutional grant of temporary immunity. Rather, the
District Court has broad discretion to stay proceedings as an
incident to its power to control its own docket.
See, e.g., Landis v. North American Co.,299 U.S. 248, 254.
Moreover, the potential burdens on the President posed by this
litigation are appropriate matters for that court to evaluate in
its management of the case, and the high respect owed the
Presidency is a matter that should inform the conduct of the
entire proceeding. Nevertheless, the District Court's stay
decision was an abuse of discretion because it took no account
of the importance of respondent's interest in bringing the case
to trial, and because it was premature in that there was nothing
in the record to enable a judge to assess whether postponement
of trial after the completion of discovery would be warranted.
Pp. 25-27.
(d) The Court is not persuaded of the seriousness of the alleged
risks that this decision will generate a large volume of
politically motivated harassing and frivolous litigation and that
national security concerns might prevent the President from
explaining a legitimate need for a continuance, and has
confidence in the ability of federal judges to deal with both
concerns. If Congress deems it appropriate to afford the
President stronger protection, it may respond with legislation.
Pp. 27-28.
72 F. 3d 1354, affirmed.
Stevens, J., delivered the opinion of the Court, in which
Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Souter,
Thomas, and Ginsburg, JJ., joined. Breyer, J., filed an opinion
concurring in the judgment.
 Supreme Court

Manila

THIRD DIVISION

[G.R. No. 119903. August 15, 2000]

HON. RICARDO T. GLORIA, in his capacity as SECRETARY,

AND DIRECTOR NILO L. ROSAS in his capacity as REGIONAL
DIRECTOR, DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS, petitioners, vs. HON. COURT OF APPEALS AND DR.
BIENVENIDO A. ICASIANO, respondents.

DECISION

PURISIMA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court
brought by Secretary and the Director for the National Capital Region of the
Department of Education, Culture and Sports (DECS), to question the
decision[1] of the Court of Appeals in CA-G.R. SP No. 35505.

The Court of Appeals found the facts as follows:

"On June 29, 1989, petitioner [private respondent herein] was

appointed Schools Division Superintendent, Division of City Schools,
Quezon City, by the then President Corazon C. Aquino.

On October 10, 1994, respondent Secretary Gloria recommended to

the President of the Philippines that the petitioner be reassigned as
Superintendent of the MIST [Marikina Institute of Science and
Technology], to fill up the vacuum created by the retirement of its
Superintendent, Mr. Bannaoag F. Lauro, on June 17, 1994.

On October 12, 1994, the President approved the recommendation

of Secretary Gloria.

On October 13, 1994, a copy of the recommendation for petitioners

reassignment, as approved by the President, was transmitted by
Secretary Gloria to Director Rosas for implementation.

On October 14, 1994, Director Rosas, informed the petitioner of his

reassignment, effective October 17, 1994.
 Petitioner requested respondent Secretary Gloria to reconsider the
reassignment, but the latter denied the request. The petitioner
prepared a letter dated October 18, 1994 to the President of the
Philippines, asking for a reconsideration of his reassignment, and
furnished a copy of the same to the DECS. However, he
subsequently changed his mind and refrained from filing the letter
with the Office of President.

On October 19, 1994, the petitioner filed the instant petition."[2]

On October 26, 1994, the Court of Appeals denied private respondents

prayer for the issuance of a Temporary Restraining Order (TRO).[3]

On November 22, 1994, it set aside its earlier resolution denying the prayer
for the issuance of a TRO; and thereafter, restrained the petitioners "from
implementing the re-assignment of the petitioner [private respondent
herein] from incumbent Schools Division Superintendent of Quezon City to
Vocational Schools Superintendent of the Marikina Institute of Science and
Technology."[4]

On December 21, 1994, the Court of Appeals issued another resolution

setting the hearing of the petition for the issuance of a writ of preliminary
injunction and enjoining the petitioners from implementing the
reassignment of the private respondent.

On March 28, 1995, it issued its assailed decision; holding as follows:

"WHEREFORE, for lack of a period or any indication that it is only

temporary, the reassignment of the petitioner from Schools Division
Superintendent, Division of City Schools, Quezon City, to Vocational
Schools Superintendent of the Marikina Institute of Science and
Technology pursuant to the Memorandum of Secretary Ricardo T.
Gloria to the President of the Philippines dated 10 October 1994, is
hereby declared to be violative of petitioners right to security of
tenure, and the respondents are hereby prohibited from
implementing the same.

SO ORDERED."[5]

Petitioners are now before the Court seeking relief from the decision of the
appellate court, contending that:

RESPONDENT COURT OF APPEALS HAS ALLOWED ITSELF TO BE

INSTRUMENTAL IN PRIVATE RESPONDENTS CIRCUMVENTION OF
THE PRESIDENTIAL IMMUNITY FROM SUIT BY GIVING DUE COURSE
AND GRANTING RELIEFS PRAYED FOR IN A SUIT PURPORTEDLY
FILED AGAINST PETITIONERS BUT ACTUALLY QUESTIONING AN
ACT OF THE PRESIDENT.

II

RESPONDENT COURT OF APPEALS HAS DECIDED A QUESTION OF

SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR APPLICABLE
DECISIONS OF THE SUPREME COURT[6]

The pivotal issue for resolution here is whether the reassignment of private
respondent from School Division Superintendent of Quezon City to
Vocational School Superintendent of MIST is violative of his security of
tenure? Petitioners maintain that there is no violation of security of tenure
involved. Private respondent maintains otherwise.

In taking favorable action on private respondents petition for prohibition,

the Court of Appeals ratiocinated:

"Notwithstanding the protestations of counsel for the respondents,

the reassignment of the petitioner to MIST appears to be indefinite.
No period is fixed. No objective or purpose, from which the
temporariness of the assignment may be inferred, is set. In fact, the
recommendation of respondent Secretary Gloria to the President
that the position of superintendent of MIST will best fit his
(petitioners) qualifications and experience. (Exh. C-2) implies that
the proposed reassignment will be indefinite."[7]

Petitioners theorize that the present petition for prohibition is improper

because the same attacks an act of the President, in violation of the
doctrine of presidential immunity from suit.

Petitioners contention is untenable for the simple reason that the petition is
directed against petitioners and not against the President. The questioned
acts are those of petitioners and not of the President. Furthermore,
presidential decisions may be questioned before the courts where there is
grave abuse of discretion or that the President acted without or in excess of
jurisdiction.[8]

Petitioners submission that the petition of private respondent with the Court
of Appeals is improper for failing to show that petitioners constituted
themselves into a "court" conducting a "proceeding" and for failing to show
that any of the petitioners acted beyond their jurisdiction in the exercise of
their judicial or ministerial functions, is barren of merit. Private respondent
has clearly averred that the petitioners acted with grave abuse of discretion
amounting to lack of jurisdiction and/or excess of jurisdiction in reassigning
the private respondent in a way that infringed upon his security of tenure.
And petitioners themselves admitted that their questioned act constituted a
ministerial duty, such that they could be subject to charges of
insubordination if they did not comply with the presidential order. What is
more, where an administrative department acts with grave abuse of
discretion, which is equivalent to a capricious and whimsical exercise of
judgment, or where the power is exercised in an arbitrary or despotic
manner, there is a justification for the courts to set aside the administrative
determination thus reached.[9]

Petitioners contend that the doctrine enunciated in Bentain vs. Court of

Appeals[10] -- that "a reassignment that is indefinite and results in a
reduction in rank, status and salary, is in effect, a constructive removal
from the service" -- does not apply in the present case for the reassignment
in question was merely temporary, lasting only until the appointment of a
new Vocational School Superintendent of MIST.

After a careful study, the Court upholds the finding of the respondent court
that the reassignment of petitioner to MIST "appears to be indefinite". The
same can be inferred from the Memorandum[11] of Secretary Gloria for
President Fidel V. Ramos to the effect that the reassignment of private
respondent will "best fit his qualifications and experience" being "an expert
in vocational and technical education." It can thus be gleaned that subject
reassignment is more than temporary as the private respondent has been
described as fit for the (reassigned) job, being an expert in the field.
Besides, there is nothing in the said Memorandum to show that the
reassignment of private respondent is temporary or would only last until a
permanent replacement is found as no period is specified or fixed; which
fact evinces an intention on the part of petitioners to reassign private
respondent with no definite period or duration. Such feature of the
reassignment in question is definitely violative of the security of tenure of
the private respondent. As held in Bentain:

"Security of tenure is a fundamental and constitutionally guaranteed

feature of our civil service. The mantle of its protection extends not
only to employees removed without cause but also to cases of
unconsented transfers which are tantamount to illegal removals
(Department of Education, Culture and Sports vs. Court of Appeals,
183 SCRA 555; Ibanez vs. COMELEC, 19 SCRA 1002; Brillantes vs.
Guevarra, 27 SCRA 138).

While a temporary transfer or assignment of personnel is

permissible even without the employees prior consent, it cannot be
done when the transfer is a preliminary step toward his removal, or
is a scheme to lure him away from his permanent position, or
 designed to indirectly terminate his service, or force his resignation.
Such a transfer would in effect circumvent the provision which
safeguards the tenure of office of those who are in the Civil Service
(Sta. Maria vs. Lopez, 31 SCRA 651; Garcia vs. Lejano, 109 Phil.
116)."[12]

Having found the reassignment of private respondent to the MIST to be

violative of his security of tenure, the order for his reassignment to the
MIST cannot be countenanced.

WHEREFORE, the petition is hereby DENIED, and the Decision of the

Court of Appeals in CA-G.R. SP No. 35505 AFFIRMED. No
pronouncement as to costs.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Gonzaga-Reyes, JJ., concur.

[1]
Penned by Associate Justice Hector L. Hofilena and concurred by Associate Justices Nathanael P. De
Pano, Jr. (Chairman) and Godardo A. Jacinto.
[2]
Rollo, pp. 43-44.
[3]
Resolution; Rollo, pp. 61-62.
[4]
Resolution; Rollo, p. 70.
[5]
Rollo, p. 49.
[6]
Rollo, p. 20.
[7]
Rollo, p. 49.
[8]
Medrana vs. Office of the President, 188 SCRA 818, 824.
[9]
Banco Filipino Savings & Mortgage Bank vs. Monetary Board, Central Bank of the Philippines, 204
SCRA 767, 790-791 citing: Lim, Sr. vs. Secretary of Agriculture and Natural Resources, 34 SCRA 751.
[10]
209 SCRA 644, 649.
[11]
Rollo, p. 51.
[12]
Bentain vs. Court of Appeals, supra pp. 648-649.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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 Services6 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 Impeachment11 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 11-1017 the senator-judges ruled against the opening of the
second envelope which allegedly contained evidence showing that petitioner held P3.3 billion
in a secret bank account under the name "Jose Velarde." The public and private prosecutors
walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate
President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that
hit the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine
and speeches full of sulphur were delivered against the petitioner and the eleven (11)
senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering
their collective resignation. They also filed their Manifestation of Withdrawal of Appearance
with the impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite
postponement of the impeachment proceedings until the House of Representatives shall have
resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the
motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A
10-kilometer line of people holding lighted candles formed a human chain from the Ninoy
Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the
people's solidarity in demanding petitioner's resignation. Students and teachers walked out of
their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at
the EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of
Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to
the holding of a snap election for President where he would not be a candidate. It did not
diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and
General Reyes, together with the chiefs of all the armed services went to the EDSA
Shrine.22 In the presence of former Presidents Aquino and Ramos and hundreds of thousands
of cheering demonstrators, General Reyes declared that "on behalf of Your Armed Forces,
the 130,000 strong members of the Armed Forces, we wish to announce that we are
withdrawing our support to this government."23 A little later, PNP Chief, Director General
Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24Some 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. 1 wphi1. n t

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.34Recognition 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.37The House then passed Resolution No. 175 "expressing the full support of
the House of Representatives to the administration of Her Excellency, Gloria
Macapagal-Arroyo, President of the Philippines."38 It also approved Resolution No. 176
"expressing the support of the House of Representatives to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending
its congratulations and expressing its support for her administration as a partner in the
attainment of the nation's goals under the Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few
days later, she also signed into law the Political Advertising ban and Fair Election Practices
Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile,
and John Osmena voted "yes" with reservations, citing as reason therefor the pending
challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court.
Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of
Representatives also approved Senator Guingona's nomination in Resolution No.
178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46
On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for
the record" that she voted against the closure of the impeachment court on the grounds that
the Senate had failed to decide on the impeachment case and that the resolution left open the
question of whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating
jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey
conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The
survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60%
in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating
increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the
ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among the E's or very
poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters.
Several cases previously filed against him in the Office of the Ombudsman were set in motion.
These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000
for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers
Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for
Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines
Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al.,
on November 28, 2000 for malversation of public funds, illegal use of public funds and
property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on
November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD
46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to

investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22,
the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits
of his witnesses as well as other supporting documents in answer to the aforementioned
complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR
No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from "conducting any further proceedings in
Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal
complaint that may be filed in his office, until after the term of petitioner as President is over
and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No.
146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and
incumbent President of the Republic of the Philippines temporarily unable to discharge the
duties of his office, and declaring respondent to have taken her oath as and to be holding the
Office of the President, only in an acting capacity pursuant to the provisions of the
Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6,
required the respondents "to comment thereon within a non-extendible period expiring on 12
February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of
February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused
themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They
debunked the charge of counsel Saguisag that they have "compromised themselves by
indicating that they have thrown their weight on one side" but nonetheless inhibited
themselves. Thereafter, the parties were given the short period of five (5) days to file their
memoranda and two (2) days to submit their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and
press statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in
G.R. No. 146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a press
statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain of
being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed
submitted for decision.

The bedrock issues for resolution of this Court are:

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.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question,
and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They
stress that respondent Arroyo ascended the presidency through people power; that she has
already taken her oath as the 14th President of the Republic; that she has exercised the
powers of the presidency and that she has been recognized by foreign governments. They
submit that these realities on ground constitute the political thicket, which the Court cannot
enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to
lift the shroud on political question but its exact latitude still splits the best of legal minds.
Developed by the courts in the 20th century, the political question doctrine which rests on the
principle of separation of powers and on prudential considerations, continue to be refined in
the mills of constitutional law.55 In the United States, the most authoritative guidelines to
determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962
case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion; or the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of government; or an unusual
need for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine of
which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a
firmer delineation of the inner and outer perimeters of a political question.57 Our leading case
is Tanada v. Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion,
held that political questions refer "to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to 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 cases62 to support their thesis
that since the cases at bar involve the legitimacy of the government of respondent Arroyo,
ergo, they present a political question. A more cerebral reading of the cited cases will show
that they are inapplicable. In the cited cases, we held that the government of
former President Aquino was the result of a successful revolution by the sovereign people,
albeit a peaceful one. No less than the Freedom Constitution63 declared that the Aquino
government was installed through a direct exercise of the power of the Filipino people "in
defiance of the provisions of the 1973 Constitution, as amended." In is familiar learning
that the legitimacy of a government sired by a successful revolution by people power is
beyond judicial scrutiny for that government automatically orbits out of the constitutional loop.
In checkered contrast, the government of respondent Arroyo is not revolutionary in
character. The oath that she took at the EDSA Shrine is the oath under the 1987
Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency
under the authority of the 1987 Constitution.

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 ofpeople 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 197368 Constitution. These rights are now safely ensconced in section 4, Article III of the
1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now
self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as
a means of assuring individual fulfillment; second, it is an essential process for advancing
knowledge and discovering truth; third, it is essential to provide for participation in
decision-making by all members of society; and fourth, it is a method of achieving a more
adaptable and hence, a more stable community of maintaining the precarious balance
between healthy cleavage and necessary consensus."69 In this sense, freedom of speech
and of assembly provides a framework in which the "conflict necessary to the progress
of a society can take place without destroying the society."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 875 of Article VII, and the allocation of
governmental powers under section 1176 of Article VII. The issues likewise call for a ruling on
the scope of presidential immunity from suit. They also involve the correct calibration of the
right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v.
Madison,77 the doctrine has been laid down that "it is emphatically the province and duty
of the judicial department to say what the law is . . ." Thus, respondent's in vocation of the
doctrine of political question is but a foray in the dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a
political question. Indeed, it involves a legal question whose factual ingredient is determinable
from the records of the case and by resort to judicial notice. Petitioner denies he resigned as
President or that he suffers from a permanent disability. Hence, he submits that the office of
the President was not vacant when respondent Arroyo took her oath as President.
The issue brings under the microscope the meaning of section 8, Article VII of the Constitution
which provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In case
of death, permanent disability, removal from office, or resignation of both the President and
Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered
resigned as of January 20, 2001 when respondent took her oath as the 14th President of the
Public. Resignation is not a high level legal abstraction. It is a factual question and
its elements are beyond quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment.78 The validity of a resignation is not government by any
formal requirement as to form. It can be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation
before he evacuated 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.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved by
the national military and police authority Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided that
Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter is
already moot and academic. Within moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and
General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal
12 noon Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving 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.
17697 which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES

TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA
MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS
UNDER THE CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended

their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the people,
the House of Representatives must ensure to the people a stable, continuing government and
therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to

unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as a
partner in the attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"
On February 7, 2001, the House of the Representatives passed House Resolution No.
17898 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S

NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote of
all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S

NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote of
all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T.
Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"
On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS

OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election
to be held simultaneously with the regular election on May 14, 2001 and the Senatorial
candidate garnering the thirteenth (13th) highest number of votes shall serve only for the
unexpired term of Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by
respondent Arroyo as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition
from any sector of government, and without any support from the Armed Forces of the
Philippines and the Philippine National Police, the petitioner continues to claim that his
inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is
the premise that the inability of petitioner Estrada. Is no longer temporary. Congress
has clearly rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the Philippines. Following 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 Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and
tenure" but not beyond. Considering the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he lost the presidency, petitioner
Estrada cannot demand as a condition sine qua non to his criminal prosecution before the
Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case
of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they have a different
factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting
President. The cases filed against petitioner Estrada are criminal in character. They involve
plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes,
especially plunder which carries the death penalty, be covered by the alleged mantle of
immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing
the President to commit criminal acts and wrapping him with post-tenure immunity from
liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful
acts and conditions. The rule is that unlawful acts of public officials are not acts of the State
and the officer who acts illegally is not acting as such but stands in the same footing as any
trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial
disinclination to expand the privilege especially when it impedes the search for truth or impairs
the vindication of a right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a
sitting President, was subpoenaed to produce certain recordings and documents relating to
his conversations with aids and advisers. Seven advisers of President Nixon's associates
were facing charges of conspiracy to obstruct Justice and other offenses, which were
committed in a burglary of the Democratic National Headquarters in Washington's Watergate
Hotel during the 972 presidential campaign. President Nixon himself was named an
unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground,
among others, that the President was not subject to judicial process and that he should first
be impeached and removed from office before he could be made amenable to judicial
proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is
based only on the generalized interest in confidentiality, it cannot prevail over the fundamental
demands of due process of law in the fair administration of criminal justice." In the 1982 case
of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity of the president
from civil damages covers only "official acts." Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it held that the US
President's immunity from suits for money damages arising out of their official acts is
inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive
immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public
office is a public trust.118 It declared as a state policy that "the State shall maintain honesty and
integrity in the public service and take positive and effective measures against graft and
corruptio."119 it ordained that "public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency act with
patriotism and justice, and lead modest lives."120 It set the rule that 'the right of the State to
recover properties unlawfully acquired by public officials or employees, from them or from
their nominees or transferees, shall not be barred by prescription, latches or estoppel."121 It
maintained the Sandiganbayan as an anti-graft court.122 It created the office of the
Ombudsman and endowed it with enormous powers, among which is to "investigate on its
own, or on complaint by any person, any act or omission of any public official, employee,
office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These
constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting
president enjoys immunity from suit for criminal acts committed during his incumbency.

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.
3.
4. 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.
5.
6.
7. 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.
8.

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. 1 wphi1.n t

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 petitioner133 and it is postulated that the
prosecutors investigating the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy
of the news reports referred to by the petitioner cannot be the subject of judicial notice by this
Court especially in light of the denials of the respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and regularity in the performance of official duty
to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner,
i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth,
our Revised Rules of Criminal Procedure, give investigation prosecutors the independence to
make their own findings and recommendations albeit they are reviewable by their
superiors.134 They can be reversed but they can not be compelled cases which they believe
deserve dismissal. In other words, investigating prosecutors should not be treated like
unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases
against the petitioner and the latter believes that the findings of probable cause against him is
the result of bias, he still has the remedy of assailing it before the proper court.

VI.

Epilogue

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

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

SO ORDERED.

Footnotes

1
Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

2
PDI, October 6, 2000, pp. A1 and A18.

3
Ibid., October 12, 2000, pp. A1 and A17.

4
Ibid., October 14, 2000, p. A1.

5
Ibid., October 18, 2000, p. A1.

6
Ibid., October 13, 2000, pp. A1 and A21.

7
Ibid., October 26, 2000, p. A1.

8
Ibid., November 2, 2000, p. A1.

9
Ibid., November 3, 2000, p. A1.

10
Ibid., November 4, 2000, p. A1.

11
The complaint for impeachment was based on the following grounds: bribery, graft and
corruption, betrayal of public trust, and culpable violation of the Constitution.

12
Ibid., November 14, 2000, p. A1.

13
Ibid., November 21, 2000, p. A1.

14
Ibid., December 8, 2000, p. A1.
15
Ibid., December 23, 2000, pp. A1 and A19.

16
Ibid., January 12, 2001, p. A1.

Those who voted "yes" to open the envelope were: Senators Pimentel, Guingona, Drilon,
17

Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmea III. Those who vote "no"
were Senators Ople, Defensor-Santiago, John Osmea, Aquino-Oreta, Coseteng, Enrile,
Honasan, Jaworski, Revilla, Sotto III and Tatad.

18
Philippine Star, January 17, 2001, p. 1.

19
Ibid., January 18, 2001, p. 4.

20
Ibid., p. 1.

21
Ibid., January 19, 2001, pp. 1 and 8.

"Erap's Final Hours Told" by Edgardo Angara, (hereinafter referred to as "Angara Diary"),
22

PDI, February 4, 2001, p. A16.

23
Philippine Star, January 20, 2001, p. 4.

24
PDI, February 4, 2001, p. A16.

25
Philippine Star, January 20, 2001, pp. 1 and 11.

26
Ibid., January 20, 2001, p. 3.

27
PDI, February 5, 2001, pp. A1 and A6.

28
Philippine Star, January 21, 2001, p. 1.

29
PDI, February 6, 2001, p. A12.

30
Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

31
Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

32
Ibid.

33
Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

34
Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001, p.
3; PDI, January 25, 2001, pp. A1 and A15.

35
Philippine Star, January 24, 2001, p. 1.

36
PDI, January 25, 2001, p. 1.

37
Ibid., p. 2.
38
Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15, p. 290.

39
Annex D, id; ibid., p. 292.

40
PDI, January 27, 2001, p. 1.

41
PDI, February 13, 2001, p. A2.

42
Philippine Star, February 13, 2001, p. A2.

43
Annex E, id.; ibid., p. 295.

44
PDI, February 8, 2001, pp. A1 & A19.

45
Annex F, id.; ibid., p. 297.

46
PDI, February 10, 2001, p. A2.

47
Annex G, id.; ibid., p. 299.

48
PDI, February 8, 2001, p. A19.

49
Philippine Star, February 3, 2001, p. 4.

50
"Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila Standard, February 16,
2001, p. 14.

51
See The Chief Justice's Extended Explanation for his Voluntary Inhibition; Rollo, GR Nos.
146710-15, pp. 525-527.

52
See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738,
pp.120-125.

53
Rollo, G.R. No. 146738, p. 134.

54
Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos.
146710-15, Vol. III, pp. 809-820.

55
Gunther and Sullivan, Constitutional law, 13th ed., pp. 45-46.

56
369 US 186, 82 S.Ct. 691, 7 L. ed 2d 663, 686 (1962).

57
See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15
August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA
756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos v.
Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag v.
Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil
192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942).

58
103 Phil 1051, 1068 (1957).
59
Section 1, Article VIII, 1987 Constitution.

60
Note that the early treatises on Constitutional Law are discourses on limitations of power
typical of which is, Cooley's Constitutional Limitations.

Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres.
61

Corazon C. Aquino, et al., GR No. 73748; People's Crusade for Supremacy of the
Constitution, etc. v. Mrs. Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay v.
Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.

62
Letter of Association Justice Reynato S. Puno, 210 SCRA 597 [1992].

63
Proclamation No. 3 (1986).

64
It states:

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will
faithfully and conscientiously fulfill my duties as President o the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every man, and consecrate myself to
the service of the nation.

So help me God.

(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II, p. 332)

65
See "Filipinas Despues de Cien Aos" (The Philippines a Century Hence), p. 62.

66
The guaranty was taken from Amendment I of the US Constitution which provides:
"Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievance."

67
See section 8, Article IV.

68
See section 9, Article IV.

69
Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

70
Ibid. See also concurring opinion of Justice Branders in Whitney v. California (74 US 357,
375-76) where he said " the greatest menace to freedom is an inert people "

71
307 US 496 (1939).

72
Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.

73
260 SCRA 798 (1996).

74
Section 1, Article II of the 1987 Constitution reads:
"The Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them."

75
Infra at 26.

76
Infra at 41.

77
1 Cranch (5 US) 137, 2 L ed 60 (1803).

78
Gonzales v. Hernandez, 2 SCRA 228 (1961).

79
See its February 4, 5, and 6, 2001 issues.

80
PDI, February 4, 2001, p. A1.

81
Ibid.

82
Ibid.

83
Ibid.

84
Ibid.

85
Ibid.

86
PDI, February 5, 2001, p. A1.

87
Ibid., p. A-1.

88
Ibid.

89
PDI, February 5, 2001, P. A6.

90
PDI, February 6, 2001, p. A1.

91
In the Angara diary which appeared in the PDI issue of February 5, 2001, Secretary Angara
stated that the letter came from Asst. Secretary Boying Remulla; that he and Political Adviser
Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner would
not sign the letter.

92
Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.

93
Id., May 9, 1959, p. 1988

94
Section 18 (2), Article III of the 1987 Constitution provides: "No involuntary servitude in any
form shall exist except as a punishment for a crime whereof the party shall have been duly
convicted."

95
Reply Memorandum, p. 3; Rollo, GR Nos. 146710-15, Vol. IV.
96
House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:

"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA
MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES

WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as
the 14th President of the Philippines;

WHEREAS, her ascension to the highest office of the land under the dictum, "the voice of the
people is the voice of God" establishes the basis of her mandate on integrity and morality in
government;

WHEREAS, the House of Representatives joins the church, youth, labor and business sectors
in fully supporting the President's strong determination to succeed;

WHEREAS, the House of Representatives is likewise one with the people in supporting
President Gloria Macapagal-Arroyo's call to start the healing and cleansing process for a
divided nation in order to 'build an edifice of peace, progress and economic stability' for the
country: Now, therefore, be it

Resolved by the House of Representatives, To express its full support to the administration of
Her Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines.

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"

97
11th Congress, 3rd Session (2001).

98
11th Congress, 3rd Session (2001).

99
Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol.
II, p. 231.

100
11th Congress, 3rd Session (2001).

101
11th Congress, 3rd Session (2001).

102
103 Phil 1051, 1067 (1957).

103
Baker vs. Carr, supra at 686 headnote 29.
104
16 Phil 534 (1910).

105
The logical basis for executive immunity from suit was originally founded upon the idea that
the "King can do no wrong". [R.J. Gray, Private Wrongs of Public Servants, 47 Cal. L. Rev.,
303 (1959)]. The concept thrived at the time of absolute monarchies in medieval England
when it was generally accepted that the seat of sovereignty and governmental power resides
in the throne. During that historical, juncture, it was believed that allowing the King to be sued
in his courts was a contradiction to the sovereignty of the King.

With the development of democratic thoughts and institutions, this kind of rationalization
eventually lost its moral force. In the United States, for example, the common law maxim
regarding the King's infallibility had limited reception among the framers of the Constitution. [J.
Long, How to Sue the President: A Proposal for Legislation Establishing the Extent of
Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)]. Still, the doctrine of presidential
immunity found its way of surviving in modern political times, retaining both its relevance and
vitality. The privilege, however, is now justified for different reasons. First, the doctrine is
rooted in the constitutional tradition of separation of powers and supported by history. [Nixon v.
Fitzgerald, 451 U. S. 731 (1982)]. The separation of powers principle is viewed as demanding
the executive's independence from the judiciary, so that the President should not be subject
to the judiciary's whim. Second, by reason of public convenience, the grant is to assure the
exercise of presidential duties and functions free from any hindrance or distraction,
considering that the Chief Executive is a job that, aside from requiring all of the office-holder's
time, also demands undivided attention. [Soliven v. Makasiar, 167 SCRA 393 (1988)].
Otherwise, the time and substance of the chief executive will be spent on wrangling litigation,
disrespect upon his person will be generated, and distrust in the government will soon follow.
[Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public policy, it was
recognized that the gains from discouraging official excesses might be more than offset by the
losses from diminished zeal [Agabin, op cit., at 121.]. Without immunity, the president would
be disinclined to exercise decision-making functions in a manner that might detrimentally
affect an individual or group of individuals. [See H. Schechter, Immunity of Presidential Aides
from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].

106
62 Phil. L.J. 113 (1987).

107
See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

108
Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.

109
Supra at 47.

110
Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

111
145 SCRA 160 (1986).

112
128 SCRA 324 (1984).

In Re: Raul Gonzalez, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 SCRA 29 (1988);
113

and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).,

114
Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).
115
418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).

116
457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

117
520 U.S. 681 (1997).

118
See section 1, Art. XI of the 1987 Constitution.

119
See section 27, Art. II of the 1987 Constitution.

120
See, section 1, Art. XI of the 1987 Constitution.

121
See section 15, Art. XI of the 1987 Constitution.

122
See section 4, Art. XI of the 1987 Constitution.

123
See section 13 (1), Art. XI of the 1987 Constitution.

124
See section 14, Art. XI of the 1987 Constitution.

See Brandwood, Notes: "You Say 'Fair Trial' and I say 'Free Press:' British and American
125

Approaches to Protecting Defendants' Rights in High Profile Trials," NYU Law Rev., Vol. 75,
No. 5, pp. 1412-1451 (November 2000).

126
Id., p. 1417.

See e.g., Martelino, et al. v. Alejandro, et. al., 32 SCRA 106 (1970); People v. Teehankee,
127

249 SCRA 54 (1995)

128
249 SCRA 54 (1955)

129
287 SCRA 581 at pp. 596-597 (1998)

130
247 SCRA 652 (1995)

131
Extensive publicity did not result in the conviction of well known personalities. E.g., OJ
Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos.

132
Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.

134
See section 4, Rule 112.

135
Estes v. Texas, 381 US 532, 540 (1965).

CONCURRING OPINION

VITUG, J.:
This nation has a great and rich history authored by its people. The EDSA Revolution of 2001
could have been one innocuous phenomenon buried in the pages of our history but for its
critical dimensions. Now, EDSA 2 would be far from being just another event in our annals. To
this day, it is asked Is Mr. Joseph Ejercito Estrada still the President of the Republic of the
Philippines?

To retort, one is to trace the events that led to the denouement of the incumbency of Mr.
Joseph Ejercito Estrada. Mr. Estrada, herein petitioner, was elected to office by not less than
10 million Filipinos in the elections of May 1998, served well over two years until January
2001. Formally impeached by the Lower House of Representatives for cases of Graft and
Corruption, Bribery, Betrayal of Public Trust and Culpable violation of the Constitution, he was
tried by the Senate. The Impeachment Tribunal was tasked to decide on the fate of Mr.
Estrada- if convicted, he would be removed from office and face prosecution with the regular
courts or, if acquitted, he would remain in office. An evidence, however, presented by the
prosecution tagged as the "second envelope" would have it differently. The denial by the
impeachment court of the pleas to have the dreaded envelope opened promptly put the trial
into a halt. Within hours after the controversial Senate decision, an angered people trooped
again to the site of the previous uprising in 1986 that toppled the 20-year rule of former
President Ferdinand E. Marcos - EDSA. Arriving in trickles, the motley gathering swelled to an
estimated million on the fourth day, with several hundreds more nearing Mendiola reportedly
poised to storm Malacaang.

In the morning of 20 January 2001, the people waited for Erap to step down and to heed the
call for him to resign. At this time, Estrada was a picture of a man, elected into the Presidency,
but beleaguered by solitude-empty of the support by the military and the police, abandoned
most of his cabinet members, and with hardly any firm succor from constituents. And despite
the alleged popularity that brought him to power, mass sentiment now appeared to be for his
immediate ouster.

With this capsule, the constitutional successor of Estrada in the person of Gloria
Macapagal-Arroyo, then incumbent Vice-President, took the cue and requested the Chief
Justice her oath-taking. In a letter, sent through "fax" at about half past seven o'clock in the
morning of 20 January 2001, read:

"The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is
permanently incapable of performing the duties of his office resulting in his permanent
disability to govern the serve his unexpired term. Almost all of his cabinet members have
resigned and the Philippine National police have withdrawn their support for Joseph Ejercito
Estrada. Civil society has likewise refused to recognize him as President.

"In view of this, I am assuming the position of the president of the Republic of the Philippines.
Accordingly, I would like to take my oath as President of the republic before the Honorable
Chief Justice Hilario G. Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine,
Quezon City, Metro Manila.

"May I have the honor to invite the members of the Honorable Court to attend the
oath-taking."

The tribunal, aware of the grave national crisis which had the marks of yet intensifying into
possible catastrophic proportion, agreed to honor the request: Therefore, the Court, cognizant
that it had to keep its doors open, had to help assure that the judicial process was seen to be
functioning. As the hours passed, however, the extremely volatile situation was getting more
precarious by the minute, and the combustible ingredients were all but ready to ignite. The
country was faced with a phenomenon --- the phenomenon of a people, who, in the exercise
of sovereignty perhaps too limitless to be explicitly contained and constrained by the limited
words and phrases of the constitution, directly sought to remove their president from office.
On that morning of the 20th of January, the his tribunal was confronted with a dilemma -----
should it choose a literal and narrow view of the constitution, invoke the rule of strict law, and
exercise its characteristics reticence? Or was it propitious for it to itself take a hand? The first
was fraught with danger and evidently too risky to accept. The second could very well help
avert imminent bloodshed. Given the realities; the Court was left hardly with choice.
Paradoxically, the first option would almost certainly imperil the Constitution, the second could
save it. The confirmatory resolution was issued following the en banc session of the Court on
22 January 2001; it read:

"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 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 letter to the Court,
dated January 20, 2001, which request was treated as an administrative matter, the Court
resolved 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 to
Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January
20, 2001.

"This resolution is without prejudice to the disposition of any justiceable case which may be
filed by a proper party."

At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th
President of the Republic of the Philippines. EDSA, once again, had its momentous role in yet
another "bloodless revolution." The Court could not have remained placid amidst the
worsening situation at the time. It could not in conscience allow the high-strung emotions and
passions of EDSA to reach the gates of Malacaang. The military and police defections
created stigma that could not be left unguarded by a vacuum in the presidency. The danger
was simply overwhelming. The extra-ordinariness of the reality called for an extra-ordinary
solution. The court has chosen to prevent rather than cure an enigma incapable of being
recoiled.

The alarming social unrest ceased as the emergence of a new leadership so unfolded. The
promise of healing the battered nation engulfed the spirit but it was not to last. Questions were
raised on the legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would
insist that he was still President and that Mme. Macapagal-Arroyo took over only in an acting
capacity.

So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution,
the Vice-President may assume the presidency only in its explicitly prescribed instances; to
wit, firstly, in case of death, permanent disability, removal from office, or resignation of the
President,1secondly, when 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, 2 and thirdly, when a majority of all the members of the cabinet transmit to the President
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, 3 the latter two grounds being culled as the
"disability."
Mr. Estrada believes that he cannot be considered to have relinquished his office for none of
the above situations have occurred. The conditions for constitutional succession have not
been met. He states that he has merely been "temporarily incapacitated" to discharge his
duties, and he invokes his letters to both Chambers of the Congress consistent with section
11 of Article VII of the 1987 Constitution. The twin letters, dated 20 January 2001, to the two
houses read:

"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 acting President."

Truly, the grounds raised in the petition are as dubitable as the petitioner's real motive in filling
the case.

The pressing issue must now catapult to its end.

Resignation is an act of giving up or the act of an officer by which he renounces his office
indefinitely. In order to constitute a complete and operative act of resignation, the officer or
employee must show a clear intention to relinquish or surrender his position accompanied by
an act of relinquishment. Resignation implies, of the intention to surrender, renounce,
relinquish the office. 4

Mr. Estrada imports that he did not resign from the presidency because the word "resignation"
has not once been embodied in his letters or said in his statements. I am unable to oblige. The
contemporary acts of Estrada during those four critical days of January are evident of his
intention to relinquish his office. Scarcity of words may not easily cloak reality and hide true
intentions. Crippled to discharge his duties, the embattled President acceded to have
negotiations conducted for a smooth transition of power. The belated proposals of the
President to have the impeachment Court allow the opening of the controversial envelope and
to postpone his resignation until 24 January 2001 were both rejected. On the morning of 20
January 2001, the President sent to congress the following letter ---

"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."

Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in
the morning but the Senate president was said to have received a copy only on the evening of
that day. Nor this Court turn a blind eye to the paralyzing events which left petitioner to
helplessness and inutility in office not so much by the confluence of events that forces him
to step down the seat of power in a poignant and teary farewell as the recognition of the will of
the governed to whom he owned allegiance. In his "valedictory message," he wrote:

"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!

Abandonment of office is a species of resignation, 5 and it connotes the giving up of the office
although not attending by the formalities normally observed in resignation. Abandonment may
be effected by a positive act or can be the result of an omission, whether deliberate or not. 6

Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the
Constitution. This assertion is difficult to sustain since the temporary incapacity contemplated
clearly envisions those that are personal, either by physical or mental in nature, 7 and innate
to the individual. If it were otherwise, when then would the disability last? Would it be when
the confluent causes which have brought about that disability are completely set in reverse?
Surely, the idea fails to register well to the simple mind.

Neither can it be implied that the takeover has installed a revolutionary government. A
revolutionary government is one which has taken the seat of power by force or in defiance of
the legal processes. Within the political context, a revolution is a complete overthrow of the
established government.8 In its delimited concept, it is characterized often,9 albeit not
always,10 by violence as a means and specificable range of goals as ends. In contrast, EDSA
2 did not envision radical changes. The government structure has remained intact.
Succession to the presidency has been by the duly-elected Vice-president of the Republic.
The military and the police, down the line, have felt to be so acting in obedience to their
mandate as the protector of the people.

Any revolution, whether it is violent or not, involves a radical change. Huntington sees
revolution as being "a rapid, fundamental and violent domestic change in the dominant values
and myths of society in its political institution, social structure, leadership, government activity
and policies.11 " The distinguished A.J. Milne makes a differentiation between constitutional
political action and a revolutionary political action. A constitutional political action, according
to him, is a political within a legal framework and rests upon a moral commitment to uphold
the authority of law. A revolutionary political action, on the other hand, acknowledges no such
moral commitment. The latter is directly towards overthrowing the existing legal order and
replacing it with something else.12 And what, one might ask, is the "legal order" referred to? It
is an authoritative code of a polity comprising enacted rules, along with those in the
Constitution13 and concerns itself with structures rather than personalities in the
establishments. Accordingly, structure would prefer to the different branches of the
government and personalities would be the power-holders. If determination would be made
whether a specific legal order is intact or not, what can be vital is not the change in the
personalities but a change in the structure.
The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the
obligation of the legal order. The constitutionally-established government structures,
embracing various offices under the executive branch, of the judiciary, of the legislature, of
the constitutional commissions and still other entities, including the Armed Forces of the
Philippines and the Philippine National Police and local governments as well, have all
remained intact and functioning.

An insistence that the events in January 2001 transgressed the letter of the Constitution is to
ignore the basic tenet of constitutionalism and to functionalize the clearly preponderant facts.

More than just an eloquent piece of frozen document, the Constitution should be deemed to
be a living testament and memorial of the sovereign will of the people from whom all
government authority emanates. Certainly, this fundamental statement is not without meaning.
Nourished by time, it grows and copes with the changing milieu. The framers of the
constitution could not have anticipated all conditions that might arise in the aftermath of
events. A constitution does not deal in details, but enunciates the general tenets that are
intended to apply to all facts that may come about but which can be brought within its
directions. 14 Behind its conciseness is its inclusiveness and its apertures overridingly lie, not
fragmented but integrated and encompassing, its spirit and its intent. The Constitution cannot
be permitted to deteriorate into just a petrified code of legal maxims and hand-tied to its
restrictive letters and wordings, rather than be the pulsating law that it is. Designed to be an
enduring instrument, its interpretation is not be confined to the conditions and outlook which
prevail at the time of its adoption15 instead, it must be given flexible to bring it in accord with
the vicissitudes of changing and advancing affairs of men.16 Technicalities and play of words
cannot frustrate the inevitable because there is an immense difference
between legalism and justice. If only to secure our democracy and to keep the social order
technicalities must give away. It has been said that the real essence of justice does not
emanate from quibblings over patchwork legal technicality but proceeds from the spirit's gut
consciousness of the dynamic role as a brick in the ultimate development of social edifice.17
Anything else defeats the spirit and intent of the Constitution for which it is formulated and
reduces its mandate to irrelevance and obscurity.

All told the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the
revolutionary government that we know. The new government, now undoubtedly in effective
control of the entire country, domestically and internationally recognized to be legitimate,
acknowledging a previous pronouncement of the court, 18 is a de jure government both in
fact and in law. The basic structures, the principles, the directions, the intent and the spirit of
the 1987 Constitution have been saved and preserved. Inevitably, Gloria Macapagal-Arroyo is
the President, not merely an Acting President, of the Republic of the Philippines.

A reminder of an elder to the youth. After two non-violent civilian uprising within just a short
span of years between them, it might be said that popular mass action is fast becoming an
institutionalized enterprise. Should the streets now be the venue for the exercise of popular
democracy? Where does one draw the line between the rule of law and the rule of the mob, or
between "People Power" and "Anarchy?" If, as the sole justification for its being, the basis of
the Arroyo presidency lies alone on those who were at EDSA, then it does rest on loose and
shifting sands and might tragically open a Pandora's box more potent than the malaise it
seeks to address. Conventional wisdom dictates the indispensable need for great sobriety
and extreme circumspection on our part. In this kind of arena, let us be assumed that we are
not overcome by senseless adventurism and opportunism. The country must not grow
oblivious to the innate perils of people power for no bond can be stretched far too much to its
breaking point. To abuse is to destroy that which we may hold dear.

1
Section 8, Article VII, 1987 Constitution

2
Section 11, 1st paragraph, Article VII, 1987 Constitution

3
Ibid., 2nd paragraph

4
Ortiz vs. Comelec, 162 SCRA 812

5
Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January 1998

6
Cruz, Carlos L., The Law on Public Officers, p. 174, 1997 Edition

7
"Mr. SUAREZ. xxx

"May we now go to Section 11, page 5. This refers to the President's written declaration of
inability to discharge the powers and duties of the Office of the President. Can this written
declaration to be done for and in behalf of the President if, for example, the President is in no
position to sign his name, like he suffers an accident and both his arms get to be amputated?

"Mr. REGALADO. We have not a situation like that even in the jurisdiction from which we
borrowed this provision, but we feel that in remote situation that the Commissioner has cited
in that the President cannot make a written declaration, I suppose an alternative would be
considered wherein he can so expressly manifest in an authentic manner what should be
contained in a written declaration. xxx

"Mr. SUAREZ. xxx I am thinking in terms of what happened to the President Wilson. Really,
the physical disability of the gentleman was never made clear to the historians. But suppose a
situation will happen in our country where the President may suffer coma and gets to be
unconscious, which is practically a total inability to discharge the powers and duties of his
office, how can he submit a written declaration of inability to perform the duties and functions
of his office?

"x x x x x x x x x

"FR. BERNAS. Precisely. The second paragraph is to take care of the Wilson situation.

"Mr. SUAREZ. I see.

"Mr. REGALADO. The Wilson situation was in 1917. Precisely, this twenty-fifth Amendment to
the American Constitution as adopted on February 10, 1967 prevent a recurrence of such
situation. Besides, it was not only the Wilson matter. As I have already mentioned here, they
have had situations in the United States, including those of President Garfield, President
Wilson, President Roosevelt and President Eisenhower."
(11 RECORDS, PP. 421-423)

8
Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086

9
Ibid.

10
Ibid.

Zarocin, Theories of Revolution in Contemporary Historiography, 88 POLITICAL SCIENCE

11

QUARTERLY

12
Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453,
456 (1973)

Fernandez, LAW and POLITY: Towards a System Concept of Legal validity, 46 Philippines
13

Law Journal, 390-391 (1971)

14
16 American Jurisprudence 2d.

15
State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252

16
John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763

17
Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104

Lawyers' League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No.
18

73748, May 22, 1986.

CONCURRING OPINION

MENDOZA, J.:

In issue in these cases is the legitimacy of the presidency of respondent Gloria

Macapagal-Arroyo. In G.R. No. 146738, the petition for quo warranto seeks a declaration that
petitioner Joseph Ejercito Estrada is the lawful President of the Philippines and that
respondent Gloria Macapagal-Arroyo is merely acting President on account o the former's
temporary disability. On the other hand, in G.R. Nos. 146710-15, the petition seeks to prohibit
respondent Ombudsman Aniano Desierto from investigating charges of plunder, bribery,
malversation of public funds, and graft and corruption against petitioner Estrada on the theory
that, being still President, he is immune from suit.

In both cases, a preliminary question is raised by respondents whether the legitimacy of

Gloria Macapagal-Arroyo's presidency is a justiciable controversy. Respondent Gloria
Macapagal-Arroyo contends that the matter is not justiciable because of "the virtual
impossibility of undoing what has been done, namely, the transfer of constitutional power to
Gloria Macapagal-Arroyo as a result of the events starting from the expose of Ilocos Sur
Governor Luis 'Chavit' Singson in October 2000."1 In support of this contention, respondent
cites the following statements of this Court concerning the Aquino government which it is
alleged applies to her administration:
. . . [T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the
realm of politics where only the people of the Philippines are the judge. And the people have
made the judgment; they have accepted the government of President Corazon C. Aquino
which is in effective control of the entire country so that it is not merely a de facto government
but is in fact and law a de jure government. Moreover, the community of nations has
recognized the legitimacy of the present government. All the eleven members of this Court, as
reorganized, have sworn to uphold the fundamental law of the Republic under her
government.2

From the natural law point of view, the right of revolution has been defined as "an inherent
right of a people to cast out their rulers, change their policy or effect radical reforms in their
system of government or institutions by force or a general uprising when the legal and
constitutional methods of making such change have proved inadequate or are so obstructed
as to be unavailable." It has been said that "the locus of positive law-making power lies with
the people of the state" and from there is derived" the right of the people to abolish, to reform
and to alter any existing form of government without regard to the existing constitution."3

But the Aquino government was a revolutionary government which was established following
the overthrow of the 1973 Constitution. The legitimacy of a revolutionary government cannot
be the subject of judicial review. If a court decides the question at all qua court, it must
necessarily affirm the existence and authority of such government under which it is exercising
judicial power.4 As Melville Weston long ago put it, "the men who were judges under the old
regime and the men who are called to be judges under the new have each to decide as
individuals what they are to do; and it may be that they choose at grave peril with the factional
outcome still uncertain."5 This is what the Court did in Javellana v. Executive Secretary6
when it held that the question of validity of the 1973 Constitution was political and affirmed
that it was itself part of the new government. As the Court said in Occena v. COMELEC7
and Mitra v. COMELEC,8 "[P]etitioners have come to the wrong forum. We sit as a Court
duty-bound to uphold and apply that Constitution. . . . It is much too late in the day to deny the
force and applicability of the 1973 Constitution."

In contrast, these cases do not involve the legitimacy of a government. They only involve the
legitimacy of the presidency of respondent Gloria Macapagal-Arroyo, and the claim of
respondents is precisely that Macapagal-Arroyo's ascension to the presidency was in
accordance with the Constitution.9

Indeed, if the government of respondent Gloria Macapagal-Arroyo is a revolutionary one, all

talk about the fact that it was brought about by succession due to resignation or permanent
disability of petitioner Joseph Ejercito Estrada is useless. All that respondents have to show is
that in the contest for power Macapagal-Arroyo's government is the successful one and is
now accepted by the people and recognized by the community of nations.

But that is not the case here. There was no revolution such as that which took place in
February 1986. There was no overthrow of the existing legal order and its replacement by a
new one, no nullification of the Constitution.

What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco.10
In that case, in order to prevent Senator Lorenzo M. Taada from airing charges against
Senate President Jose Avelino, the latter refused to recognize him, as a result of which tumult
broke out in the Senate gallery, as if by pre-arrangement, as the Court noted, and Avelino
suddenly adjourned the session and, followed by six senators, walked out of the session hall.
The remaining senators then declared the position of President of the Senate vacant and
elected Senator Mariano Jesus Cuenco acting president. The question was whether
respondent Cuenco had been validly elected acting president of the Senate, considering that
there were only 12 senators (out of 24) present, one senator (Sen. Confesor) being abroad
while another one (Sen. Sotto) was ill in the hospital.

Although in the beginning this Court refused to take cognizance of a petition for quo warranto
brought to determine the rightful president of the Senate, among other things, in view of the
political nature of the controversy, involving as it did an internal affair of a coequal branch of
the government, in the end this Court decided to intervene because of the national crisis
which developed as a result of the unresolved question of presidency of the Senate. The
situation justifying judicial intervention was described, thus:

We can take judicial notice that legislative work has been at a standstill; the normal and
ordinary functioning of the Senate has been hampered by the non-attendance to sessions of
about one-half of the members; warrants of arrest have been issued, openly defied, and
remained unexecuted like mere scraps of paper, notwithstanding the fact that the persons to
be arrested are prominent persons with well-known addresses and residences and have been
in daily contact with news reporters and photographers. Farce and mockery have been
interspersed with actions and movements provoking conflicts which invite bloodshed.

. . . Indeed there is no denying that the situation, as obtaining in the upper chamber of
Congress, is highly explosive. It had echoed in the House of Representatives. It has already
involved the President of the Philippines. The situation has created a veritable national crisis,
and it is apparent that solution cannot be expected from any quarter other than this Supreme
Court, upon which the hopes of the people for an effective settlement are pinned.11

In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his Court has no other
alternative but to meet the challenge of the situation which demands the utmost of judicial
temper and judicial statesmanship. As herein before stated, the present crisis in the Senate is
one that imperatively calls for the intervention of this Court."12 Questions raised concerning
respondent Gloria Macapagal-Arroyo's presidency similarly justify, in my view, judicial
intervention in these cases.

Nor is our power to fashion appropriate remedies in these cases in doubt. Respondents
contend that there is nothing else that can be done about the assumption into office of
respondent Gloria Macapagal-Arroyo. What has been done cannot be undone. It is like
toothpaste, we are told, which, once squeezed out of the tube, cannot be put back.

Both literally and figuratively, the argument is untenable. The toothpaste can be put back into
the tube. Literally, it can be put back by opening the bottom of the tube that is how
toothpaste is put in tubes at manufacture in the first place. Metaphorically, the toothpaste can
also be put back. In G.R. No. 146738, a writ can be issued ordering respondent Gloria
Macapagal-Arroyo to vacate the Office of the President so that petitioner Joseph E. Estrada
can be reinstated should the judgment in these cases be in his favor. Whether such writ will
be obeyed will be a test of our commitment to the rule of law. In election cases, people accept
the decisions of courts even if they be against the results as proclaimed. Recognition given by
foreign governments to the presidency poses no problem. So, as far as the political question
argument of respondents is anchored on the difficulty or impossibility of devising effective
judicial remedies, this defense should not bar inquiry into the legitimacy of the
Macapagal-Arroyo administration.
This brings me to the main issue, whether respondent Gloria Macapagal-Arroyo's ascension
to the Presidency was in accordance with the Constitution. Art. VII. 8 provides in pertinent
parts:

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.

The events that led to the departure of petitioner Joseph E. Estrada from office are well known
and need not be recounted in great detail here. They began in October 2000 when allegations
of wrong doings involving bribe-taking, illegal gambling (jueteng), and other forms of
corruption were made against petitioner before the Blue Ribbon Committee of the Senate. On
November 13, 2000, petitioner was impeached by the House of Representatives and, on
December 7, impeachment proceedings were begun in the Senate during which more serious
allegations of graft and corruption against petitioner were made and were only stopped on
January 16, 2001 when 11 senators, sympathetic to petitioner, succeeded in suppressing
damaging evidence against petitioner. As a result, the impeachment trial was thrown into an
uproar as the entire prosecution panel walked out and Senate President Aquilino Pimentel
resigned after casting his vote against petitioner.

The events, as seen through the eyes of foreign correspondents, are vividly recounted in the
following excerpts from the Far Eastern Economic Review and Time Magazine quoted in the
Memorandum of petitioner in G.R. Nos. 146710-15, thus:

1.

The decision immediately sent hundreds of Filipinos out into the streets,
triggering rallies that swelled into a massive four-day demonstration. But while
anger was apparent among the middle classes, Estrada, a master of the
common touch, still retained largely passive support among the poorest
Filipinos. Citing that mandate and exploiting the letter of the Constitution,
which stipulates that a written resignation be presented, he refused to step
down even after all of the armed forced, the police and most of his cabinet
withdrew their support for him. [FAR EASTERN ECONOMIC REVIEW, "More
Power to The Powerful", id, at p. 18].

2.
3.

When an entire night passed without Estrada's resignation, tens of thousands

of frustrated protesters marched on Malacaang to demand that the president
leave office. An air force fighter jet and four military helicopters buzzed the
palace to remind the president that had lost the reins of power. [FAR
EASTERN ECONOMIC REVIEW, supra, ibid].

4.
5.
 While the television cameras were focused on the rallies and the
commentators became lost in reveries about People Power revisited
behind-the-scenes negotiations had been going on non-stop between military
factions loyal to Estrada and those who advocated a quick coup to depose the
President. Chief of Staff Reyes and Defense Secretary Mercado had made
their fateful call to Estrada after luncheon attended by all the top commanders.
The officers agreed that renouncing Estrada was the best course, in part
because some commanders were urging more drastic resolution. If the
military did not come to a consensus, there loomed the possibility of factional
fighting or, worse, civil war. [TIME, "People Power Redux", id at p. 18]

6.
7.

It finally took a controversial Supreme Court declaration that the presidency

was effectively vacant to persuade Estrada to pack up and move out to his
family home in Manila still refusing to sign a letter of resignation and
insisting that he was the legal president [FAR EASTERN ECONOMIC
REVIEW, "More Power to the Powerful", supra, ibid.]. Petitioner then sent two
letters, one to the Senate President and the other to the Speaker of the House,
indicating that he was unable to perform the duties of his Office.13

8.

To recall these events is to note the moral framework in which petitioner's fall from power took
place. Petitioner's counsel claimed petitioner was forced out of Malacaang Palace, seat of
the Presidency, because petitioner was "threatened with mayhem."14 What, the President of
the Philippines, who under the Constitution is the commander-in-chief of all the armed forces,
threatened with mayhem? This can only happen because he had lost his moral authority as
the elected President.

Indeed, the people power movement did not just happen at the call of some ambitious
politicians, military men, businessmen and/or prelates. It came about because the people,
rightly or wrongly, believed the allegations of graft and corruption made by Luis "Chavit"
Singson, Emma Lim, Edgardo Espiritu, and other witnesses against petitioner. Their
testimonies during the impeachment trial were all televised and heard by millions of people
throughout the length and breadth of this archipelago. As a result, petitioner found himself on
January 19, 2001 deserted as most of his cabinet members resigned, members of the Armed
Forces of the Philippines and the Philippine National Police withdrew their support of the
President, while civil society announced its loss of trust and confidence in him. Public office is
a public trust. Petitioner lost the public's trust and as a consequence remained President only
in name. Having lost the command of the armed forces and the national police, he found
Himself vulnerable to threats of mayhem.

This is the confession of one who is beaten. After all, the permanent disability referred to in
the Constitution can be physical, mental or moral, rendering the President unable to exercise
the powers and functions of his office. As his close adviser wrote in his diary of the final hours
of petitioner's presidency:

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.)15
Angara himself shared this view of petitioner's inability. He wrote in his diary:

"Let us be realistic," I counter. "The President does not have the capability to organize a
counter-attack. He does not have the AFP or the Philippine National Police on his side. He is
not only in a corner he is also down."16

This is the clearest proof that petitioner was totally and permanently disabled at least as of 11
P.M. of Friday, January 19, 2001. Hence the negotiations for the transfer of power to the
respondent Vice-President Gloria Macapagal-Arroyo. It belies petitioner's claim that he was
not permanently disabled but only temporarily unable to discharge the powers and duties of
his office and therefore can only be temporarily replaced by respondent Gloria
Macapagal-Arroyo under Art. VII, 11.

From this judgment that petitioner became permanently disabled because he had lost the
public's trust, I except extravagant claims of the right of the people to change their
government. While Art. II, 1 of the Constitution says that "sovereignty resides in the people
and all government authority emanates from them," it also says that "the Philippines is a
democratic and republican state." This means that ours is a representative democracy as
distinguished from a direct democracy in which the sovereign will of the people is
expressed through the ballot, whether in an election, referendum, initiative, recall (in the case
of local officials) or plebiscite. Any exercise of the powers of sovereignty in any other way is
unconstitutional.

Indeed, the right to revolt cannot be recognized as a constitutional principle. A constitution to

provide for the right of the people to revolt will carry with it the seeds of its own destruction.
Rather, the right to revolt is affirmed as a natural right. Even then, it must be exercised only for
weighty and serious reasons. As the Declaration of Independence of July 4, 1776 of the
American Congress states:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed
by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the
Pursuit of Happiness That to secure these Rights, Governments are instituted among Men,
deriving their just Powers from the Consent of the Governed, that whenever any Form of
Government becomes destructive of these Ends, it is the Right of the People to alter or to
abolish it, and to institute new Government, laying its Foundation on such Principles, and
organizing its Powers in such Form, as to them shall seem most likely to effect their Safety
and Happiness.Prudence, indeed, will dictate that Governments long established should not
be changed for light and transient Causes; and accordingly all Experience hath shewn, that
Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by
abolishing the Forms to which they are accustomed. But when a long Train of Abuses and
Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under
absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to
provide new Guards for their future Security.17

Here, as I have already indicated, what took place at EDSA from January 16 to 20, 2001 was
not a revolution but the peaceful expression of popular will. The operative fact which enabled
Vice-President Gloria Macapagal-Arroyo to assume the presidency was the fact that there
was a crisis, nay a vacuum, in the executive leadership which made the government rife for
seizure by lawless elements. The presidency was up for grabs, and it was imperative that the
rule of succession in the Constitution be enforced.
But who is to declare the President's permanent disability, petitioner asks? The answer was
given by petitioner himself when he said that he was already tired and wanted no more of
popular demonstrations and rallies against him; when he and his advisers negotiated with
respondent Gloria Macapagal-Arroyo's advisers for a transition of powers from him to her;
when petitioner's own Executive Secretary declared that petitioner was not only in a corner
but was down.

Nor is it correct for petitioner to say that the present situation is similar to our situation during
the period (from 1941 to 1943) of our occupation by the Japanese, when we had two
presidents, namely, Manuel L. Quezon and Jose P. Laurel. This is turning somersault with
history. The Philippines had two presidents at that time for the simple reason that there were
then two governments the de facto government established by Japan as belligerent
occupant, of which Laurel was president, and the de jure Commonwealth Government in exile
of President Manuel L. Quezon. That a belligerent occupant has a right to establish a
government in enemy territory is a recognized principle of international law.18 But today we
have only one government, and it is the one set up in the 1987 Constitution. Hence, there can
only be one President.

Having reached the conclusion that petitioner Joseph E. Estrada is no longer President of the
Philippines, I find no need to discuss his claim of immunity from suit. I believe in the canon of
adjudication that the Court should not formulate a rule of constitutional law broader than is
required by the precise facts to which it is applied.

The only question left for resolution is whether there was massive prejudicial publicity
attending the investigation by the Ombudsman of the criminal charges against petitioner. The
test in this jurisdiction is whether there has been "actual, not merely possible, prejudice"19
caused to petitioner as a result of publicity. There has been no proof of this, and so I think this
claim should simply be dismissed.

For the foregoing reasons, I vote to dismiss the petitions in these cases.

(Sgd.)

VICENTE V. MENDOZA

Associate Justice

Footnotes

1
Joint Memorandum of the Secretary of Justice and Solicitor General, p. 15.

2
Lawyers League for a Better Philippines v. President Corazon C. Aquino, G.R. No. 73746,
May 22, 1986.

3
Letter of Associate Justice Reynato S. Puno, 210 SCRA 589, 597 (1992).

4
Luther v. Borden, 7 How. 1 (1848).
5
Political Questions, 38 Harv. L. Rev. 296, 305 (1925).

6
50 SCRA 30 (1973).

7
104 SCRA ! (1981).

8
104 SCRA 59 (1981).

9
Joint Memorandum of the Secretary of Justice and Solicitor General, p. 2.

10
83 Phil. 17 (1949).

11
83 Phil. At 76 (Perfecto, J., concurring).

12
Id. at 25-26 (concurring and dissenting).

13
Memorandum for Petitioner, G.R. Nos, 146710-15, pp. 5-6.

14
Petition, G.R. No. 146738, p. 13.

15
Edgardo Angara, Erap's Final Hours Told, Philippine Daily Inquirier, p. A6, February 6,
2001.

16
Id. (emphasis added).

17
Emphasis added.

18
Co Kim Cham v. Valdez, 75 Phil. 113 (1945); Peralta v. Director of Prisons, 75 Phil. 285
(1945); Laurel v. Misa, 77 Phil. 856 (1947).

19
See Martelino v. Alejandro, 32 SCRA 106 (1970).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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 Services6 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 Impeachment11 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 11-1017 the senator-judges ruled against the opening of the
second envelope which allegedly contained evidence showing that petitioner held P3.3 billion
in a secret bank account under the name "Jose Velarde." The public and private prosecutors
walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate
President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that
hit the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine
and speeches full of sulphur were delivered against the petitioner and the eleven (11)
senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering
their collective resignation. They also filed their Manifestation of Withdrawal of Appearance
with the impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite
postponement of the impeachment proceedings until the House of Representatives shall have
resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the
motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A
10-kilometer line of people holding lighted candles formed a human chain from the Ninoy
Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the
people's solidarity in demanding petitioner's resignation. Students and teachers walked out of
their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at
the EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of
Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to
the holding of a snap election for President where he would not be a candidate. It did not
diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and
General Reyes, together with the chiefs of all the armed services went to the EDSA
Shrine.22 In the presence of former Presidents Aquino and Ramos and hundreds of thousands
of cheering demonstrators, General Reyes declared that "on behalf of Your Armed Forces,
the 130,000 strong members of the Armed Forces, we wish to announce that we are
withdrawing our support to this government."23 A little later, PNP Chief, Director General
Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24Some 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.

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.34Recognition 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.37The House then passed Resolution No. 175 "expressing the full support of
the House of Representatives to the administration of Her Excellency, Gloria
Macapagal-Arroyo, President of the Philippines."38 It also approved Resolution No. 176
"expressing the support of the House of Representatives to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending
its congratulations and expressing its support for her administration as a partner in the
attainment of the nation's goals under the Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few
days later, she also signed into law the Political Advertising ban and Fair Election Practices
Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile,
and John Osmena voted "yes" with reservations, citing as reason therefor the pending
challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court.
Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of
Representatives also approved Senator Guingona's nomination in Resolution No.
178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46
On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for
the record" that she voted against the closure of the impeachment court on the grounds that
the Senate had failed to decide on the impeachment case and that the resolution left open the
question of whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating
jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey
conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The
survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60%
in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating
increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the
ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among the E's or very
poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters.
Several cases previously filed against him in the Office of the Ombudsman were set in motion.
These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000
for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers
Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for
Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines
Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al.,
on November 28, 2000 for malversation of public funds, illegal use of public funds and
property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on
November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD
46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to

investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22,
the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits
of his witnesses as well as other supporting documents in answer to the aforementioned
complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR
No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from "conducting any further proceedings in
Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal
complaint that may be filed in his office, until after the term of petitioner as President is over
and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No.
146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and
incumbent President of the Republic of the Philippines temporarily unable to discharge the
duties of his office, and declaring respondent to have taken her oath as and to be holding the
Office of the President, only in an acting capacity pursuant to the provisions of the
Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6,
required the respondents "to comment thereon within a non-extendible period expiring on 12
February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of
February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused
themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They
debunked the charge of counsel Saguisag that they have "compromised themselves by
indicating that they have thrown their weight on one side" but nonetheless inhibited
themselves. Thereafter, the parties were given the short period of five (5) days to file their
memoranda and two (2) days to submit their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and
press statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in
G.R. No. 146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a press
statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain of
being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed
submitted for decision.

The bedrock issues for resolution of this Court are:

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.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question,
and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They
stress that respondent Arroyo ascended the presidency through people power; that she has
already taken her oath as the 14th President of the Republic; that she has exercised the
powers of the presidency and that she has been recognized by foreign governments. They
submit that these realities on ground constitute the political thicket, which the Court cannot
enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to
lift the shroud on political question but its exact latitude still splits the best of legal minds.
Developed by the courts in the 20th century, the political question doctrine which rests on the
principle of separation of powers and on prudential considerations, continue to be refined in
the mills of constitutional law.55 In the United States, the most authoritative guidelines to
determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962
case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion; or the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of government; or an unusual
need for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine of
which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a
firmer delineation of the inner and outer perimeters of a political question.57 Our leading case
is Tanada v. Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion,
held that political questions refer "to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to 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 cases62 to support their thesis
that since the cases at bar involve the legitimacy of the government of respondent Arroyo,
ergo, they present a political question. A more cerebral reading of the cited cases will show
that they are inapplicable. In the cited cases, we held that the government of
former President Aquino was the result of a successful revolution by the sovereign people,
albeit a peaceful one. No less than the Freedom Constitution63 declared that the Aquino
government was installed through a direct exercise of the power of the Filipino people "in
defiance of the provisions of the 1973 Constitution, as amended." In is familiar learning
that the legitimacy of a government sired by a successful revolution by people power is
beyond judicial scrutiny for that government automatically orbits out of the constitutional loop.
In checkered contrast, the government of respondent Arroyo is not revolutionary in
character. The oath that she took at the EDSA Shrine is the oath under the 1987
Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency
under the authority of the 1987 Constitution. 1 wphi1.n t

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 ofpeople 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 197368 Constitution. These rights are now safely ensconced in section 4, Article III of the
1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now
self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as
a means of assuring individual fulfillment; second, it is an essential process for advancing
knowledge and discovering truth; third, it is essential to provide for participation in
decision-making by all members of society; and fourth, it is a method of achieving a more
adaptable and hence, a more stable community of maintaining the precarious balance
between healthy cleavage and necessary consensus."69 In this sense, freedom of speech
and of assembly provides a framework in which the "conflict necessary to the progress
of a society can take place without destroying the society."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 875 of Article VII, and the allocation of
governmental powers under section 1176 of Article VII. The issues likewise call for a ruling on
the scope of presidential immunity from suit. They also involve the correct calibration of the
right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v.
Madison,77 the doctrine has been laid down that "it is emphatically the province and duty
of the judicial department to say what the law is . . ." Thus, respondent's in vocation of the
doctrine of political question is but a foray in the dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a
political question. Indeed, it involves a legal question whose factual ingredient is determinable
from the records of the case and by resort to judicial notice. Petitioner denies he resigned as
President or that he suffers from a permanent disability. Hence, he submits that the office of
the President was not vacant when respondent Arroyo took her oath as President.
The issue brings under the microscope the meaning of section 8, Article VII of the Constitution
which provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In case
of death, permanent disability, removal from office, or resignation of both the President and
Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered
resigned as of January 20, 2001 when respondent took her oath as the 14th President of the
Public. Resignation is not a high level legal abstraction. It is a factual question and
its elements are beyond quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment.78 The validity of a resignation is not government by any
formal requirement as to form. It can be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation
before he evacuated 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.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved by
the national military and police authority Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided that
Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter is
already moot and academic. Within moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and
General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal
12 noon Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving 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.
17697 which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES

TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA
MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS
UNDER THE CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended

their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the people,
the House of Representatives must ensure to the people a stable, continuing government and
therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to

unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as a
partner in the attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"
On February 7, 2001, the House of the Representatives passed House Resolution No.
17898 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S

NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote of
all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S

NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote of
all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T.
Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"
On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS

OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election
to be held simultaneously with the regular election on May 14, 2001 and the Senatorial
candidate garnering the thirteenth (13th) highest number of votes shall serve only for the
unexpired term of Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by
respondent Arroyo as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition
from any sector of government, and without any support from the Armed Forces of the
Philippines and the Philippine National Police, the petitioner continues to claim that his
inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is
the premise that the inability of petitioner Estrada. Is no longer temporary. Congress
has clearly rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the Philippines. Following 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 Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and
tenure" but not beyond. Considering the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he lost the presidency, petitioner
Estrada cannot demand as a condition sine qua non to his criminal prosecution before the
Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case
of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they have a different
factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting
President. The cases filed against petitioner Estrada are criminal in character. They involve
plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes,
especially plunder which carries the death penalty, be covered by the alleged mantle of
immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing
the President to commit criminal acts and wrapping him with post-tenure immunity from
liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful
acts and conditions. The rule is that unlawful acts of public officials are not acts of the State
and the officer who acts illegally is not acting as such but stands in the same footing as any
trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial
disinclination to expand the privilege especially when it impedes the search for truth or impairs
the vindication of a right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a
sitting President, was subpoenaed to produce certain recordings and documents relating to
his conversations with aids and advisers. Seven advisers of President Nixon's associates
were facing charges of conspiracy to obstruct Justice and other offenses, which were
committed in a burglary of the Democratic National Headquarters in Washington's Watergate
Hotel during the 972 presidential campaign. President Nixon himself was named an
unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground,
among others, that the President was not subject to judicial process and that he should first
be impeached and removed from office before he could be made amenable to judicial
proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is
based only on the generalized interest in confidentiality, it cannot prevail over the fundamental
demands of due process of law in the fair administration of criminal justice." In the 1982 case
of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity of the president
from civil damages covers only "official acts." Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it held that the US
President's immunity from suits for money damages arising out of their official acts is
inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive
immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public
office is a public trust.118 It declared as a state policy that "the State shall maintain honesty and
integrity in the public service and take positive and effective measures against graft and
corruptio."119 it ordained that "public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency act with
patriotism and justice, and lead modest lives."120 It set the rule that 'the right of the State to
recover properties unlawfully acquired by public officials or employees, from them or from
their nominees or transferees, shall not be barred by prescription, latches or estoppel."121 It
maintained the Sandiganbayan as an anti-graft court.122 It created the office of the
Ombudsman and endowed it with enormous powers, among which is to "investigate on its
own, or on complaint by any person, any act or omission of any public official, employee,
office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These
constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting
president enjoys immunity from suit for criminal acts committed during his incumbency.

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.
3.
4. 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.
5.
6.
7. 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.
8.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino,
et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must
be allegation and proof that the judges have been unduly influenced, not simply that they
might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will
prove that the tone and content of the publicity that attended the investigation of petitioners
fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on
the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are
basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an
Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in
criminal investigation is a factor to consider in determining whether they can easily be blinded
by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia
of bias for it does not appear that they considered any extra-record evidence except evidence
properly adduced by the parties. The length of time the investigation was conducted despite
its summary nature and the generosity with which they accommodated the discovery motions
of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias resulting from their
bombardment of prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court
to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He
needs to show more weighty social science evidence to successfully prove the impaired
capacity of a judge to render a bias-free decision. Well to note, the cases against the
petitioner are still undergoing preliminary investigation by a special panel of prosecutors in
the office of the respondent Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have already been infected by
bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has
yet to come out with its findings and the Court cannot second guess whether its
recommendation will be unfavorable to the petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with
bias. To quote petitioner's submission, the respondent Ombudsman "has been influenced by
the barrage of slanted news reports, and he has buckled to the threats and pressures directed
at him by the mobs."132 News reports have also been quoted to establish that the respondent
Ombudsman has already prejudged the cases of the petitioner133 and it is postulated that the
prosecutors investigating the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy
of the news reports referred to by the petitioner cannot be the subject of judicial notice by this
Court especially in light of the denials of the respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and regularity in the performance of official duty
to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner,
i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth,
our Revised Rules of Criminal Procedure, give investigation prosecutors the independence to
make their own findings and recommendations albeit they are reviewable by their
superiors.134 They can be reversed but they can not be compelled cases which they believe
deserve dismissal. In other words, investigating prosecutors should not be treated like
unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases
against the petitioner and the latter believes that the findings of probable cause against him is
the result of bias, he still has the remedy of assailing it before the proper court.

VI.

Epilogue

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

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

SO ORDERED.

Footnotes

1
Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

2
PDI, October 6, 2000, pp. A1 and A18.

3
Ibid., October 12, 2000, pp. A1 and A17.

4
Ibid., October 14, 2000, p. A1.

5
Ibid., October 18, 2000, p. A1.

6
Ibid., October 13, 2000, pp. A1 and A21.

7
Ibid., October 26, 2000, p. A1.

8
Ibid., November 2, 2000, p. A1.

9
Ibid., November 3, 2000, p. A1.

10
Ibid., November 4, 2000, p. A1.

11
The complaint for impeachment was based on the following grounds: bribery, graft and
corruption, betrayal of public trust, and culpable violation of the Constitution.

12
Ibid., November 14, 2000, p. A1.

13
Ibid., November 21, 2000, p. A1.

14
Ibid., December 8, 2000, p. A1.
15
Ibid., December 23, 2000, pp. A1 and A19.

16
Ibid., January 12, 2001, p. A1.

Those who voted "yes" to open the envelope were: Senators Pimentel, Guingona, Drilon,
17

Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmea III. Those who vote "no"
were Senators Ople, Defensor-Santiago, John Osmea, Aquino-Oreta, Coseteng, Enrile,
Honasan, Jaworski, Revilla, Sotto III and Tatad.

18
Philippine Star, January 17, 2001, p. 1.

19
Ibid., January 18, 2001, p. 4.

20
Ibid., p. 1.

21
Ibid., January 19, 2001, pp. 1 and 8.

"Erap's Final Hours Told" by Edgardo Angara, (hereinafter referred to as "Angara Diary"),
22

PDI, February 4, 2001, p. A16.

23
Philippine Star, January 20, 2001, p. 4.

24
PDI, February 4, 2001, p. A16.

25
Philippine Star, January 20, 2001, pp. 1 and 11.

26
Ibid., January 20, 2001, p. 3.

27
PDI, February 5, 2001, pp. A1 and A6.

28
Philippine Star, January 21, 2001, p. 1.

29
PDI, February 6, 2001, p. A12.

30
Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

31
Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

32
Ibid.

33
Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

34
Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001, p.
3; PDI, January 25, 2001, pp. A1 and A15.

35
Philippine Star, January 24, 2001, p. 1.

36
PDI, January 25, 2001, p. 1.

37
Ibid., p. 2.
38
Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15, p. 290.

39
Annex D, id; ibid., p. 292.

40
PDI, January 27, 2001, p. 1.

41
PDI, February 13, 2001, p. A2.

42
Philippine Star, February 13, 2001, p. A2.

43
Annex E, id.; ibid., p. 295.

44
PDI, February 8, 2001, pp. A1 & A19.

45
Annex F, id.; ibid., p. 297.

46
PDI, February 10, 2001, p. A2.

47
Annex G, id.; ibid., p. 299.

48
PDI, February 8, 2001, p. A19.

49
Philippine Star, February 3, 2001, p. 4.

50
"Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila Standard, February 16,
2001, p. 14.

51
See The Chief Justice's Extended Explanation for his Voluntary Inhibition; Rollo, GR Nos.
146710-15, pp. 525-527.

52
See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738,
pp.120-125.

53
Rollo, G.R. No. 146738, p. 134.

54
Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos.
146710-15, Vol. III, pp. 809-820.

55
Gunther and Sullivan, Constitutional law, 13th ed., pp. 45-46.

56
369 US 186, 82 S.Ct. 691, 7 L. ed 2d 663, 686 (1962).

57
See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15
August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA
756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos v.
Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag v.
Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil
192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942).

58
103 Phil 1051, 1068 (1957).
59
Section 1, Article VIII, 1987 Constitution.

60
Note that the early treatises on Constitutional Law are discourses on limitations of power
typical of which is, Cooley's Constitutional Limitations.

Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres.
61

Corazon C. Aquino, et al., GR No. 73748; People's Crusade for Supremacy of the
Constitution, etc. v. Mrs. Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay v.
Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.

62
Letter of Association Justice Reynato S. Puno, 210 SCRA 597 [1992].

63
Proclamation No. 3 (1986).

64
It states:

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will
faithfully and conscientiously fulfill my duties as President o the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every man, and consecrate myself to
the service of the nation.

So help me God.

(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II, p. 332)

65
See "Filipinas Despues de Cien Aos" (The Philippines a Century Hence), p. 62.

66
The guaranty was taken from Amendment I of the US Constitution which provides:
"Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievance."

67
See section 8, Article IV.

68
See section 9, Article IV.

69
Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

70
Ibid. See also concurring opinion of Justice Branders in Whitney v. California (74 US 357,
375-76) where he said " the greatest menace to freedom is an inert people "

71
307 US 496 (1939).

72
Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.

73
260 SCRA 798 (1996).

74
Section 1, Article II of the 1987 Constitution reads:
"The Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them."

75
Infra at 26.

76
Infra at 41.

77
1 Cranch (5 US) 137, 2 L ed 60 (1803).

78
Gonzales v. Hernandez, 2 SCRA 228 (1961).

79
See its February 4, 5, and 6, 2001 issues.

80
PDI, February 4, 2001, p. A1.

81
Ibid.

82
Ibid.

83
Ibid.

84
Ibid.

85
Ibid.

86
PDI, February 5, 2001, p. A1.

87
Ibid., p. A-1.

88
Ibid.

89
PDI, February 5, 2001, P. A6.

90
PDI, February 6, 2001, p. A1.

91
In the Angara diary which appeared in the PDI issue of February 5, 2001, Secretary Angara
stated that the letter came from Asst. Secretary Boying Remulla; that he and Political Adviser
Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner would
not sign the letter.

92
Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.

93
Id., May 9, 1959, p. 1988

94
Section 18 (2), Article III of the 1987 Constitution provides: "No involuntary servitude in any
form shall exist except as a punishment for a crime whereof the party shall have been duly
convicted."

95
Reply Memorandum, p. 3; Rollo, GR Nos. 146710-15, Vol. IV.
96
House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:

"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA
MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES

WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as
the 14th President of the Philippines;

WHEREAS, her ascension to the highest office of the land under the dictum, "the voice of the
people is the voice of God" establishes the basis of her mandate on integrity and morality in
government;

WHEREAS, the House of Representatives joins the church, youth, labor and business sectors
in fully supporting the President's strong determination to succeed;

WHEREAS, the House of Representatives is likewise one with the people in supporting
President Gloria Macapagal-Arroyo's call to start the healing and cleansing process for a
divided nation in order to 'build an edifice of peace, progress and economic stability' for the
country: Now, therefore, be it

Resolved by the House of Representatives, To express its full support to the administration of
Her Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines.

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"

97
11th Congress, 3rd Session (2001).

98
11th Congress, 3rd Session (2001).

99
Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol.
II, p. 231.

100
11th Congress, 3rd Session (2001).

101
11th Congress, 3rd Session (2001).

102
103 Phil 1051, 1067 (1957).

103
Baker vs. Carr, supra at 686 headnote 29.
104
16 Phil 534 (1910).

105
The logical basis for executive immunity from suit was originally founded upon the idea that
the "King can do no wrong". [R.J. Gray, Private Wrongs of Public Servants, 47 Cal. L. Rev.,
303 (1959)]. The concept thrived at the time of absolute monarchies in medieval England
when it was generally accepted that the seat of sovereignty and governmental power resides
in the throne. During that historical, juncture, it was believed that allowing the King to be sued
in his courts was a contradiction to the sovereignty of the King.

With the development of democratic thoughts and institutions, this kind of rationalization
eventually lost its moral force. In the United States, for example, the common law maxim
regarding the King's infallibility had limited reception among the framers of the Constitution. [J.
Long, How to Sue the President: A Proposal for Legislation Establishing the Extent of
Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)]. Still, the doctrine of presidential
immunity found its way of surviving in modern political times, retaining both its relevance and
vitality. The privilege, however, is now justified for different reasons. First, the doctrine is
rooted in the constitutional tradition of separation of powers and supported by history. [Nixon v.
Fitzgerald, 451 U. S. 731 (1982)]. The separation of powers principle is viewed as demanding
the executive's independence from the judiciary, so that the President should not be subject
to the judiciary's whim. Second, by reason of public convenience, the grant is to assure the
exercise of presidential duties and functions free from any hindrance or distraction,
considering that the Chief Executive is a job that, aside from requiring all of the office-holder's
time, also demands undivided attention. [Soliven v. Makasiar, 167 SCRA 393 (1988)].
Otherwise, the time and substance of the chief executive will be spent on wrangling litigation,
disrespect upon his person will be generated, and distrust in the government will soon follow.
[Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public policy, it was
recognized that the gains from discouraging official excesses might be more than offset by the
losses from diminished zeal [Agabin, op cit., at 121.]. Without immunity, the president would
be disinclined to exercise decision-making functions in a manner that might detrimentally
affect an individual or group of individuals. [See H. Schechter, Immunity of Presidential Aides
from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].

106
62 Phil. L.J. 113 (1987).

107
See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

108
Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.

109
Supra at 47.

110
Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

111
145 SCRA 160 (1986).

112
128 SCRA 324 (1984).

In Re: Raul Gonzalez, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 SCRA 29 (1988);
113

and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).,

114
Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).
115
418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).

116
457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

117
520 U.S. 681 (1997).

118
See section 1, Art. XI of the 1987 Constitution.

119
See section 27, Art. II of the 1987 Constitution.

120
See, section 1, Art. XI of the 1987 Constitution.

121
See section 15, Art. XI of the 1987 Constitution.

122
See section 4, Art. XI of the 1987 Constitution.

123
See section 13 (1), Art. XI of the 1987 Constitution.

124
See section 14, Art. XI of the 1987 Constitution.

See Brandwood, Notes: "You Say 'Fair Trial' and I say 'Free Press:' British and American
125

Approaches to Protecting Defendants' Rights in High Profile Trials," NYU Law Rev., Vol. 75,
No. 5, pp. 1412-1451 (November 2000).

126
Id., p. 1417.

See e.g., Martelino, et al. v. Alejandro, et. al., 32 SCRA 106 (1970); People v. Teehankee,
127

249 SCRA 54 (1995)

128
249 SCRA 54 (1955)

129
287 SCRA 581 at pp. 596-597 (1998)

130
247 SCRA 652 (1995)

131
Extensive publicity did not result in the conviction of well known personalities. E.g., OJ
Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos.

132
Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.

134
See section 4, Rule 112.

135
Estes v. Texas, 381 US 532, 540 (1965).

CONCURRING OPINION

VITUG, J.:

This nation has a great and rich history authored by its people. The EDSA Revolution of 2001
could have been one innocuous phenomenon buried in the pages of our history but for its
critical dimensions. Now, EDSA 2 would be far from being just another event in our annals. To
this day, it is asked Is Mr. Joseph Ejercito Estrada still the President of the Republic of the
Philippines?

To retort, one is to trace the events that led to the denouement of the incumbency of Mr.
Joseph Ejercito Estrada. Mr. Estrada, herein petitioner, was elected to office by not less than
10 million Filipinos in the elections of May 1998, served well over two years until January
2001. Formally impeached by the Lower House of Representatives for cases of Graft and
Corruption, Bribery, Betrayal of Public Trust and Culpable violation of the Constitution, he was
tried by the Senate. The Impeachment Tribunal was tasked to decide on the fate of Mr.
Estrada- if convicted, he would be removed from office and face prosecution with the regular
courts or, if acquitted, he would remain in office. An evidence, however, presented by the
prosecution tagged as the "second envelope" would have it differently. The denial by the
impeachment court of the pleas to have the dreaded envelope opened promptly put the trial
into a halt. Within hours after the controversial Senate decision, an angered people trooped
again to the site of the previous uprising in 1986 that toppled the 20-year rule of former
President Ferdinand E. Marcos - EDSA. Arriving in trickles, the motley gathering swelled to an
estimated million on the fourth day, with several hundreds more nearing Mendiola reportedly
poised to storm Malacaang.

In the morning of 20 January 2001, the people waited for Erap to step down and to heed the
call for him to resign. At this time, Estrada was a picture of a man, elected into the Presidency,
but beleaguered by solitude-empty of the support by the military and the police, abandoned
most of his cabinet members, and with hardly any firm succor from constituents. And despite
the alleged popularity that brought him to power, mass sentiment now appeared to be for his
immediate ouster.

With this capsule, the constitutional successor of Estrada in the person of Gloria
Macapagal-Arroyo, then incumbent Vice-President, took the cue and requested the Chief
Justice her oath-taking. In a letter, sent through "fax" at about half past seven o'clock in the
morning of 20 January 2001, read:

"The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is
permanently incapable of performing the duties of his office resulting in his permanent
disability to govern the serve his unexpired term. Almost all of his cabinet members have
resigned and the Philippine National police have withdrawn their support for Joseph Ejercito
Estrada. Civil society has likewise refused to recognize him as President.

"In view of this, I am assuming the position of the president of the Republic of the Philippines.
Accordingly, I would like to take my oath as President of the republic before the Honorable
Chief Justice Hilario G. Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine,
Quezon City, Metro Manila.

"May I have the honor to invite the members of the Honorable Court to attend the
oath-taking."

The tribunal, aware of the grave national crisis which had the marks of yet intensifying into
possible catastrophic proportion, agreed to honor the request: Therefore, the Court, cognizant
that it had to keep its doors open, had to help assure that the judicial process was seen to be
functioning. As the hours passed, however, the extremely volatile situation was getting more
precarious by the minute, and the combustible ingredients were all but ready to ignite. The
country was faced with a phenomenon --- the phenomenon of a people, who, in the exercise
of sovereignty perhaps too limitless to be explicitly contained and constrained by the limited
words and phrases of the constitution, directly sought to remove their president from office.
On that morning of the 20th of January, the his tribunal was confronted with a dilemma -----
should it choose a literal and narrow view of the constitution, invoke the rule of strict law, and
exercise its characteristics reticence? Or was it propitious for it to itself take a hand? The first
was fraught with danger and evidently too risky to accept. The second could very well help
avert imminent bloodshed. Given the realities; the Court was left hardly with choice.
Paradoxically, the first option would almost certainly imperil the Constitution, the second could
save it. The confirmatory resolution was issued following the en banc session of the Court on
22 January 2001; it read:

"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 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 letter to the Court,
dated January 20, 2001, which request was treated as an administrative matter, the Court
resolved 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 to
Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January
20, 2001.

"This resolution is without prejudice to the disposition of any justiceable case which may be
filed by a proper party."

At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th
President of the Republic of the Philippines. EDSA, once again, had its momentous role in yet
another "bloodless revolution." The Court could not have remained placid amidst the
worsening situation at the time. It could not in conscience allow the high-strung emotions and
passions of EDSA to reach the gates of Malacaang. The military and police defections
created stigma that could not be left unguarded by a vacuum in the presidency. The danger
was simply overwhelming. The extra-ordinariness of the reality called for an extra-ordinary
solution. The court has chosen to prevent rather than cure an enigma incapable of being
recoiled.

The alarming social unrest ceased as the emergence of a new leadership so unfolded. The
promise of healing the battered nation engulfed the spirit but it was not to last. Questions were
raised on the legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would
insist that he was still President and that Mme. Macapagal-Arroyo took over only in an acting
capacity.

So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution,
the Vice-President may assume the presidency only in its explicitly prescribed instances; to
wit, firstly, in case of death, permanent disability, removal from office, or resignation of the
President,1secondly, when 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, 2 and thirdly, when a majority of all the members of the cabinet transmit to the President
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, 3 the latter two grounds being culled as the
"disability."

Mr. Estrada believes that he cannot be considered to have relinquished his office for none of
the above situations have occurred. The conditions for constitutional succession have not
been met. He states that he has merely been "temporarily incapacitated" to discharge his
duties, and he invokes his letters to both Chambers of the Congress consistent with section
11 of Article VII of the 1987 Constitution. The twin letters, dated 20 January 2001, to the two
houses read:

"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 acting President."

Truly, the grounds raised in the petition are as dubitable as the petitioner's real motive in filling
the case.

The pressing issue must now catapult to its end.

Resignation is an act of giving up or the act of an officer by which he renounces his office
indefinitely. In order to constitute a complete and operative act of resignation, the officer or
employee must show a clear intention to relinquish or surrender his position accompanied by
an act of relinquishment. Resignation implies, of the intention to surrender, renounce,
relinquish the office. 4

Mr. Estrada imports that he did not resign from the presidency because the word "resignation"
has not once been embodied in his letters or said in his statements. I am unable to oblige. The
contemporary acts of Estrada during those four critical days of January are evident of his
intention to relinquish his office. Scarcity of words may not easily cloak reality and hide true
intentions. Crippled to discharge his duties, the embattled President acceded to have
negotiations conducted for a smooth transition of power. The belated proposals of the
President to have the impeachment Court allow the opening of the controversial envelope and
to postpone his resignation until 24 January 2001 were both rejected. On the morning of 20
January 2001, the President sent to congress the following letter ---

"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."

Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in
the morning but the Senate president was said to have received a copy only on the evening of
that day. Nor this Court turn a blind eye to the paralyzing events which left petitioner to
helplessness and inutility in office not so much by the confluence of events that forces him
to step down the seat of power in a poignant and teary farewell as the recognition of the will of
the governed to whom he owned allegiance. In his "valedictory message," he wrote:

"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!

Abandonment of office is a species of resignation, 5 and it connotes the giving up of the office
although not attending by the formalities normally observed in resignation. Abandonment may
be effected by a positive act or can be the result of an omission, whether deliberate or not. 6

Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the
Constitution. This assertion is difficult to sustain since the temporary incapacity contemplated
clearly envisions those that are personal, either by physical or mental in nature, 7 and innate
to the individual. If it were otherwise, when then would the disability last? Would it be when
the confluent causes which have brought about that disability are completely set in reverse?
Surely, the idea fails to register well to the simple mind.

Neither can it be implied that the takeover has installed a revolutionary government. A
revolutionary government is one which has taken the seat of power by force or in defiance of
the legal processes. Within the political context, a revolution is a complete overthrow of the
established government.8 In its delimited concept, it is characterized often,9 albeit not
always,10 by violence as a means and specificable range of goals as ends. In contrast, EDSA
2 did not envision radical changes. The government structure has remained intact.
Succession to the presidency has been by the duly-elected Vice-president of the Republic.
The military and the police, down the line, have felt to be so acting in obedience to their
mandate as the protector of the people.

Any revolution, whether it is violent or not, involves a radical change. Huntington sees
revolution as being "a rapid, fundamental and violent domestic change in the dominant values
and myths of society in its political institution, social structure, leadership, government activity
and policies.11 " The distinguished A.J. Milne makes a differentiation between constitutional
political action and a revolutionary political action. A constitutional political action, according
to him, is a political within a legal framework and rests upon a moral commitment to uphold
the authority of law. A revolutionary political action, on the other hand, acknowledges no such
moral commitment. The latter is directly towards overthrowing the existing legal order and
replacing it with something else.12 And what, one might ask, is the "legal order" referred to? It
is an authoritative code of a polity comprising enacted rules, along with those in the
Constitution13 and concerns itself with structures rather than personalities in the
establishments. Accordingly, structure would prefer to the different branches of the
government and personalities would be the power-holders. If determination would be made
whether a specific legal order is intact or not, what can be vital is not the change in the
personalities but a change in the structure.

The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the
obligation of the legal order. The constitutionally-established government structures,
embracing various offices under the executive branch, of the judiciary, of the legislature, of
the constitutional commissions and still other entities, including the Armed Forces of the
Philippines and the Philippine National Police and local governments as well, have all
remained intact and functioning.
An insistence that the events in January 2001 transgressed the letter of the Constitution is to
ignore the basic tenet of constitutionalism and to functionalize the clearly preponderant facts.

More than just an eloquent piece of frozen document, the Constitution should be deemed to
be a living testament and memorial of the sovereign will of the people from whom all
government authority emanates. Certainly, this fundamental statement is not without meaning.
Nourished by time, it grows and copes with the changing milieu. The framers of the
constitution could not have anticipated all conditions that might arise in the aftermath of
events. A constitution does not deal in details, but enunciates the general tenets that are
intended to apply to all facts that may come about but which can be brought within its
directions. 14 Behind its conciseness is its inclusiveness and its apertures overridingly lie, not
fragmented but integrated and encompassing, its spirit and its intent. The Constitution cannot
be permitted to deteriorate into just a petrified code of legal maxims and hand-tied to its
restrictive letters and wordings, rather than be the pulsating law that it is. Designed to be an
enduring instrument, its interpretation is not be confined to the conditions and outlook which
prevail at the time of its adoption15 instead, it must be given flexible to bring it in accord with
the vicissitudes of changing and advancing affairs of men.16 Technicalities and play of words
cannot frustrate the inevitable because there is an immense difference
between legalism and justice. If only to secure our democracy and to keep the social order
technicalities must give away. It has been said that the real essence of justice does not
emanate from quibblings over patchwork legal technicality but proceeds from the spirit's gut
consciousness of the dynamic role as a brick in the ultimate development of social edifice.17
Anything else defeats the spirit and intent of the Constitution for which it is formulated and
reduces its mandate to irrelevance and obscurity.

All told the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the
revolutionary government that we know. The new government, now undoubtedly in effective
control of the entire country, domestically and internationally recognized to be legitimate,
acknowledging a previous pronouncement of the court, 18 is a de jure government both in
fact and in law. The basic structures, the principles, the directions, the intent and the spirit of
the 1987 Constitution have been saved and preserved. Inevitably, Gloria Macapagal-Arroyo is
the President, not merely an Acting President, of the Republic of the Philippines.

A reminder of an elder to the youth. After two non-violent civilian uprising within just a short
span of years between them, it might be said that popular mass action is fast becoming an
institutionalized enterprise. Should the streets now be the venue for the exercise of popular
democracy? Where does one draw the line between the rule of law and the rule of the mob, or
between "People Power" and "Anarchy?" If, as the sole justification for its being, the basis of
the Arroyo presidency lies alone on those who were at EDSA, then it does rest on loose and
shifting sands and might tragically open a Pandora's box more potent than the malaise it
seeks to address. Conventional wisdom dictates the indispensable need for great sobriety
and extreme circumspection on our part. In this kind of arena, let us be assumed that we are
not overcome by senseless adventurism and opportunism. The country must not grow
oblivious to the innate perils of people power for no bond can be stretched far too much to its
breaking point. To abuse is to destroy that which we may hold dear. 1 wphi1. n t

1
Section 8, Article VII, 1987 Constitution

2
Section 11, 1st paragraph, Article VII, 1987 Constitution

3
Ibid., 2nd paragraph
4
Ortiz vs. Comelec, 162 SCRA 812

5
Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January 1998

6
Cruz, Carlos L., The Law on Public Officers, p. 174, 1997 Edition

7
"Mr. SUAREZ. xxx

"May we now go to Section 11, page 5. This refers to the President's written declaration of
inability to discharge the powers and duties of the Office of the President. Can this written
declaration to be done for and in behalf of the President if, for example, the President is in no
position to sign his name, like he suffers an accident and both his arms get to be amputated?

"Mr. REGALADO. We have not a situation like that even in the jurisdiction from which we
borrowed this provision, but we feel that in remote situation that the Commissioner has cited
in that the President cannot make a written declaration, I suppose an alternative would be
considered wherein he can so expressly manifest in an authentic manner what should be
contained in a written declaration. xxx

"Mr. SUAREZ. xxx I am thinking in terms of what happened to the President Wilson. Really,
the physical disability of the gentleman was never made clear to the historians. But suppose a
situation will happen in our country where the President may suffer coma and gets to be
unconscious, which is practically a total inability to discharge the powers and duties of his
office, how can he submit a written declaration of inability to perform the duties and functions
of his office?

"x x x x x x x x x

"FR. BERNAS. Precisely. The second paragraph is to take care of the Wilson situation.

"Mr. SUAREZ. I see.

"Mr. REGALADO. The Wilson situation was in 1917. Precisely, this twenty-fifth Amendment to
the American Constitution as adopted on February 10, 1967 prevent a recurrence of such
situation. Besides, it was not only the Wilson matter. As I have already mentioned here, they
have had situations in the United States, including those of President Garfield, President
Wilson, President Roosevelt and President Eisenhower."

(11 RECORDS, PP. 421-423)

8
Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086

9
Ibid.

10
Ibid.

Zarocin, Theories of Revolution in Contemporary Historiography, 88 POLITICAL SCIENCE

11

QUARTERLY

12
Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453,
456 (1973)
 Fernandez, LAW and POLITY: Towards a System Concept of Legal validity, 46 Philippines
13

Law Journal, 390-391 (1971)

14
16 American Jurisprudence 2d.

15
State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252

16
John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763

17
Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104

Lawyers' League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No.
18

73748, May 22, 1986.

CONCURRING OPINION

MENDOZA, J.:

In issue in these cases is the legitimacy of the presidency of respondent Gloria

Macapagal-Arroyo. In G.R. No. 146738, the petition for quo warranto seeks a declaration that
petitioner Joseph Ejercito Estrada is the lawful President of the Philippines and that
respondent Gloria Macapagal-Arroyo is merely acting President on account o the former's
temporary disability. On the other hand, in G.R. Nos. 146710-15, the petition seeks to prohibit
respondent Ombudsman Aniano Desierto from investigating charges of plunder, bribery,
malversation of public funds, and graft and corruption against petitioner Estrada on the theory
that, being still President, he is immune from suit.

In both cases, a preliminary question is raised by respondents whether the legitimacy of

Gloria Macapagal-Arroyo's presidency is a justiciable controversy. Respondent Gloria
Macapagal-Arroyo contends that the matter is not justiciable because of "the virtual
impossibility of undoing what has been done, namely, the transfer of constitutional power to
Gloria Macapagal-Arroyo as a result of the events starting from the expose of Ilocos Sur
Governor Luis 'Chavit' Singson in October 2000."1 In support of this contention, respondent
cites the following statements of this Court concerning the Aquino government which it is
alleged applies to her administration:

. . . [T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the
realm of politics where only the people of the Philippines are the judge. And the people have
made the judgment; they have accepted the government of President Corazon C. Aquino
which is in effective control of the entire country so that it is not merely a de facto government
but is in fact and law a de jure government. Moreover, the community of nations has
recognized the legitimacy of the present government. All the eleven members of this Court, as
reorganized, have sworn to uphold the fundamental law of the Republic under her
government.2

From the natural law point of view, the right of revolution has been defined as "an inherent
right of a people to cast out their rulers, change their policy or effect radical reforms in their
system of government or institutions by force or a general uprising when the legal and
constitutional methods of making such change have proved inadequate or are so obstructed
as to be unavailable." It has been said that "the locus of positive law-making power lies with
the people of the state" and from there is derived" the right of the people to abolish, to reform
and to alter any existing form of government without regard to the existing constitution."3

But the Aquino government was a revolutionary government which was established following
the overthrow of the 1973 Constitution. The legitimacy of a revolutionary government cannot
be the subject of judicial review. If a court decides the question at all qua court, it must
necessarily affirm the existence and authority of such government under which it is exercising
judicial power.4 As Melville Weston long ago put it, "the men who were judges under the old
regime and the men who are called to be judges under the new have each to decide as
individuals what they are to do; and it may be that they choose at grave peril with the factional
outcome still uncertain."5 This is what the Court did in Javellana v. Executive Secretary6
when it held that the question of validity of the 1973 Constitution was political and affirmed
that it was itself part of the new government. As the Court said in Occena v. COMELEC7
and Mitra v. COMELEC,8 "[P]etitioners have come to the wrong forum. We sit as a Court
duty-bound to uphold and apply that Constitution. . . . It is much too late in the day to deny the
force and applicability of the 1973 Constitution."

In contrast, these cases do not involve the legitimacy of a government. They only involve the
legitimacy of the presidency of respondent Gloria Macapagal-Arroyo, and the claim of
respondents is precisely that Macapagal-Arroyo's ascension to the presidency was in
accordance with the Constitution.9

Indeed, if the government of respondent Gloria Macapagal-Arroyo is a revolutionary one, all

talk about the fact that it was brought about by succession due to resignation or permanent
disability of petitioner Joseph Ejercito Estrada is useless. All that respondents have to show is
that in the contest for power Macapagal-Arroyo's government is the successful one and is
now accepted by the people and recognized by the community of nations.

But that is not the case here. There was no revolution such as that which took place in
February 1986. There was no overthrow of the existing legal order and its replacement by a
new one, no nullification of the Constitution.

What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco.10
In that case, in order to prevent Senator Lorenzo M. Taada from airing charges against
Senate President Jose Avelino, the latter refused to recognize him, as a result of which tumult
broke out in the Senate gallery, as if by pre-arrangement, as the Court noted, and Avelino
suddenly adjourned the session and, followed by six senators, walked out of the session hall.
The remaining senators then declared the position of President of the Senate vacant and
elected Senator Mariano Jesus Cuenco acting president. The question was whether
respondent Cuenco had been validly elected acting president of the Senate, considering that
there were only 12 senators (out of 24) present, one senator (Sen. Confesor) being abroad
while another one (Sen. Sotto) was ill in the hospital.

Although in the beginning this Court refused to take cognizance of a petition for quo warranto
brought to determine the rightful president of the Senate, among other things, in view of the
political nature of the controversy, involving as it did an internal affair of a coequal branch of
the government, in the end this Court decided to intervene because of the national crisis
which developed as a result of the unresolved question of presidency of the Senate. The
situation justifying judicial intervention was described, thus:

We can take judicial notice that legislative work has been at a standstill; the normal and
ordinary functioning of the Senate has been hampered by the non-attendance to sessions of
about one-half of the members; warrants of arrest have been issued, openly defied, and
remained unexecuted like mere scraps of paper, notwithstanding the fact that the persons to
be arrested are prominent persons with well-known addresses and residences and have been
in daily contact with news reporters and photographers. Farce and mockery have been
interspersed with actions and movements provoking conflicts which invite bloodshed.

. . . Indeed there is no denying that the situation, as obtaining in the upper chamber of
Congress, is highly explosive. It had echoed in the House of Representatives. It has already
involved the President of the Philippines. The situation has created a veritable national crisis,
and it is apparent that solution cannot be expected from any quarter other than this Supreme
Court, upon which the hopes of the people for an effective settlement are pinned.11

In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his Court has no other
alternative but to meet the challenge of the situation which demands the utmost of judicial
temper and judicial statesmanship. As herein before stated, the present crisis in the Senate is
one that imperatively calls for the intervention of this Court."12 Questions raised concerning
respondent Gloria Macapagal-Arroyo's presidency similarly justify, in my view, judicial
intervention in these cases.

Nor is our power to fashion appropriate remedies in these cases in doubt. Respondents
contend that there is nothing else that can be done about the assumption into office of
respondent Gloria Macapagal-Arroyo. What has been done cannot be undone. It is like
toothpaste, we are told, which, once squeezed out of the tube, cannot be put back.

Both literally and figuratively, the argument is untenable. The toothpaste can be put back into
the tube. Literally, it can be put back by opening the bottom of the tube that is how
toothpaste is put in tubes at manufacture in the first place. Metaphorically, the toothpaste can
also be put back. In G.R. No. 146738, a writ can be issued ordering respondent Gloria
Macapagal-Arroyo to vacate the Office of the President so that petitioner Joseph E. Estrada
can be reinstated should the judgment in these cases be in his favor. Whether such writ will
be obeyed will be a test of our commitment to the rule of law. In election cases, people accept
the decisions of courts even if they be against the results as proclaimed. Recognition given by
foreign governments to the presidency poses no problem. So, as far as the political question
argument of respondents is anchored on the difficulty or impossibility of devising effective
judicial remedies, this defense should not bar inquiry into the legitimacy of the
Macapagal-Arroyo administration.

This brings me to the main issue, whether respondent Gloria Macapagal-Arroyo's ascension
to the Presidency was in accordance with the Constitution. Art. VII. 8 provides in pertinent
parts:

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.

The events that led to the departure of petitioner Joseph E. Estrada from office are well known
and need not be recounted in great detail here. They began in October 2000 when allegations
of wrong doings involving bribe-taking, illegal gambling (jueteng), and other forms of
corruption were made against petitioner before the Blue Ribbon Committee of the Senate. On
November 13, 2000, petitioner was impeached by the House of Representatives and, on
December 7, impeachment proceedings were begun in the Senate during which more serious
allegations of graft and corruption against petitioner were made and were only stopped on
January 16, 2001 when 11 senators, sympathetic to petitioner, succeeded in suppressing
damaging evidence against petitioner. As a result, the impeachment trial was thrown into an
uproar as the entire prosecution panel walked out and Senate President Aquilino Pimentel
resigned after casting his vote against petitioner.

The events, as seen through the eyes of foreign correspondents, are vividly recounted in the
following excerpts from the Far Eastern Economic Review and Time Magazine quoted in the
Memorandum of petitioner in G.R. Nos. 146710-15, thus:

1.

The decision immediately sent hundreds of Filipinos out into the streets,
triggering rallies that swelled into a massive four-day demonstration. But while
anger was apparent among the middle classes, Estrada, a master of the
common touch, still retained largely passive support among the poorest
Filipinos. Citing that mandate and exploiting the letter of the Constitution,
which stipulates that a written resignation be presented, he refused to step
down even after all of the armed forced, the police and most of his cabinet
withdrew their support for him. [FAR EASTERN ECONOMIC REVIEW, "More
Power to The Powerful", id, at p. 18].

2.
3.

When an entire night passed without Estrada's resignation, tens of thousands

of frustrated protesters marched on Malacaang to demand that the president
leave office. An air force fighter jet and four military helicopters buzzed the
palace to remind the president that had lost the reins of power. [FAR
EASTERN ECONOMIC REVIEW, supra, ibid].

4.
5.

While the television cameras were focused on the rallies and the
commentators became lost in reveries about People Power revisited
behind-the-scenes negotiations had been going on non-stop between military
factions loyal to Estrada and those who advocated a quick coup to depose the
President. Chief of Staff Reyes and Defense Secretary Mercado had made
their fateful call to Estrada after luncheon attended by all the top commanders.
The officers agreed that renouncing Estrada was the best course, in part
because some commanders were urging more drastic resolution. If the
military did not come to a consensus, there loomed the possibility of factional
fighting or, worse, civil war. [TIME, "People Power Redux", id at p. 18]

6.
7.
 It finally took a controversial Supreme Court declaration that the presidency
was effectively vacant to persuade Estrada to pack up and move out to his
family home in Manila still refusing to sign a letter of resignation and
insisting that he was the legal president [FAR EASTERN ECONOMIC
REVIEW, "More Power to the Powerful", supra, ibid.]. Petitioner then sent two
letters, one to the Senate President and the other to the Speaker of the House,
indicating that he was unable to perform the duties of his Office.13

8.

To recall these events is to note the moral framework in which petitioner's fall from power took
place. Petitioner's counsel claimed petitioner was forced out of Malacaang Palace, seat of
the Presidency, because petitioner was "threatened with mayhem."14 What, the President of
the Philippines, who under the Constitution is the commander-in-chief of all the armed forces,
threatened with mayhem? This can only happen because he had lost his moral authority as
the elected President.

Indeed, the people power movement did not just happen at the call of some ambitious
politicians, military men, businessmen and/or prelates. It came about because the people,
rightly or wrongly, believed the allegations of graft and corruption made by Luis "Chavit"
Singson, Emma Lim, Edgardo Espiritu, and other witnesses against petitioner. Their
testimonies during the impeachment trial were all televised and heard by millions of people
throughout the length and breadth of this archipelago. As a result, petitioner found himself on
January 19, 2001 deserted as most of his cabinet members resigned, members of the Armed
Forces of the Philippines and the Philippine National Police withdrew their support of the
President, while civil society announced its loss of trust and confidence in him. Public office is
a public trust. Petitioner lost the public's trust and as a consequence remained President only
in name. Having lost the command of the armed forces and the national police, he found
Himself vulnerable to threats of mayhem.

This is the confession of one who is beaten. After all, the permanent disability referred to in
the Constitution can be physical, mental or moral, rendering the President unable to exercise
the powers and functions of his office. As his close adviser wrote in his diary of the final hours
of petitioner's presidency:

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.)15

Angara himself shared this view of petitioner's inability. He wrote in his diary:

"Let us be realistic," I counter. "The President does not have the capability to organize a
counter-attack. He does not have the AFP or the Philippine National Police on his side. He is
not only in a corner he is also down."16

This is the clearest proof that petitioner was totally and permanently disabled at least as of 11
P.M. of Friday, January 19, 2001. Hence the negotiations for the transfer of power to the
respondent Vice-President Gloria Macapagal-Arroyo. It belies petitioner's claim that he was
not permanently disabled but only temporarily unable to discharge the powers and duties of
his office and therefore can only be temporarily replaced by respondent Gloria
Macapagal-Arroyo under Art. VII, 11.
From this judgment that petitioner became permanently disabled because he had lost the
public's trust, I except extravagant claims of the right of the people to change their
government. While Art. II, 1 of the Constitution says that "sovereignty resides in the people
and all government authority emanates from them," it also says that "the Philippines is a
democratic and republican state." This means that ours is a representative democracy as
distinguished from a direct democracy in which the sovereign will of the people is
expressed through the ballot, whether in an election, referendum, initiative, recall (in the case
of local officials) or plebiscite. Any exercise of the powers of sovereignty in any other way is
unconstitutional.

Indeed, the right to revolt cannot be recognized as a constitutional principle. A constitution to

provide for the right of the people to revolt will carry with it the seeds of its own destruction.
Rather, the right to revolt is affirmed as a natural right. Even then, it must be exercised only for
weighty and serious reasons. As the Declaration of Independence of July 4, 1776 of the
American Congress states:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed
by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the
Pursuit of Happiness That to secure these Rights, Governments are instituted among Men,
deriving their just Powers from the Consent of the Governed, that whenever any Form of
Government becomes destructive of these Ends, it is the Right of the People to alter or to
abolish it, and to institute new Government, laying its Foundation on such Principles, and
organizing its Powers in such Form, as to them shall seem most likely to effect their Safety
and Happiness.Prudence, indeed, will dictate that Governments long established should not
be changed for light and transient Causes; and accordingly all Experience hath shewn, that
Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by
abolishing the Forms to which they are accustomed. But when a long Train of Abuses and
Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under
absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to
provide new Guards for their future Security.17

Here, as I have already indicated, what took place at EDSA from January 16 to 20, 2001 was
not a revolution but the peaceful expression of popular will. The operative fact which enabled
Vice-President Gloria Macapagal-Arroyo to assume the presidency was the fact that there
was a crisis, nay a vacuum, in the executive leadership which made the government rife for
seizure by lawless elements. The presidency was up for grabs, and it was imperative that the
rule of succession in the Constitution be enforced.

But who is to declare the President's permanent disability, petitioner asks? The answer was
given by petitioner himself when he said that he was already tired and wanted no more of
popular demonstrations and rallies against him; when he and his advisers negotiated with
respondent Gloria Macapagal-Arroyo's advisers for a transition of powers from him to her;
when petitioner's own Executive Secretary declared that petitioner was not only in a corner
but was down.

Nor is it correct for petitioner to say that the present situation is similar to our situation during
the period (from 1941 to 1943) of our occupation by the Japanese, when we had two
presidents, namely, Manuel L. Quezon and Jose P. Laurel. This is turning somersault with
history. The Philippines had two presidents at that time for the simple reason that there were
then two governments the de facto government established by Japan as belligerent
occupant, of which Laurel was president, and the de jure Commonwealth Government in exile
of President Manuel L. Quezon. That a belligerent occupant has a right to establish a
government in enemy territory is a recognized principle of international law.18 But today we
have only one government, and it is the one set up in the 1987 Constitution. Hence, there can
only be one President.

Having reached the conclusion that petitioner Joseph E. Estrada is no longer President of the
Philippines, I find no need to discuss his claim of immunity from suit. I believe in the canon of
adjudication that the Court should not formulate a rule of constitutional law broader than is
required by the precise facts to which it is applied.

The only question left for resolution is whether there was massive prejudicial publicity
attending the investigation by the Ombudsman of the criminal charges against petitioner. The
test in this jurisdiction is whether there has been "actual, not merely possible, prejudice"19
caused to petitioner as a result of publicity. There has been no proof of this, and so I think this
claim should simply be dismissed.

For the foregoing reasons, I vote to dismiss the petitions in these cases.

(Sgd.)

VICENTE V. MENDOZA

Associate Justice

Footnotes

1
Joint Memorandum of the Secretary of Justice and Solicitor General, p. 15.

2
Lawyers League for a Better Philippines v. President Corazon C. Aquino, G.R. No. 73746,
May 22, 1986.

3
Letter of Associate Justice Reynato S. Puno, 210 SCRA 589, 597 (1992).

4
Luther v. Borden, 7 How. 1 (1848).

5
Political Questions, 38 Harv. L. Rev. 296, 305 (1925).

6
50 SCRA 30 (1973).

7
104 SCRA ! (1981).

8
104 SCRA 59 (1981).

9
Joint Memorandum of the Secretary of Justice and Solicitor General, p. 2.

10
83 Phil. 17 (1949).

11
83 Phil. At 76 (Perfecto, J., concurring).

12
Id. at 25-26 (concurring and dissenting).
13
Memorandum for Petitioner, G.R. Nos, 146710-15, pp. 5-6.

14
Petition, G.R. No. 146738, p. 13.

15
Edgardo Angara, Erap's Final Hours Told, Philippine Daily Inquirier, p. A6, February 6,
2001.

16
Id. (emphasis added).

17
Emphasis added.

18
Co Kim Cham v. Valdez, 75 Phil. 113 (1945); Peralta v. Director of Prisons, 75 Phil. 285
(1945); Laurel v. Misa, 77 Phil. 856 (1947).

19
See Martelino v. Alejandro, 32 SCRA 106 (1970).
 EN BANC

PROF. RANDOLF S. DAVID, G.R. No. 171396

LORENZO TAADA III, RONALD
LLAMAS, H. HARRY L. ROQUE, JR., Present:
JOEL RUIZ BUTUYAN, ROGER R.
RAYEL, GARY S. PANGANIBAN, C.J.,
*
MALLARI, ROMEL PUNO,
REGALADO BAGARES, QUISUMBING,
CHRISTOPHER F.C. BOLASTIG, YNARES-SANTIAGO,
Petitioners, SANDOVAL-GUTIERREZ
,
- versus - CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
GLORIA CARPIO MORALES,
MACAPAGAL-ARROYO, AS CALLEJO, SR.,
PRESIDENT AND AZCUNA,
COMMANDER-IN-CHIEF, TINGA,
EXECUTIVE SECRETARY EDUARDO CHICO-NAZARIO,
ERMITA, HON. AVELINO CRUZ II, GARCIA, and
SECRETARY OF NATIONAL VELASCO, JJ.
DEFENSE, GENERAL GENEROSO
SENGA, CHIEF OF STAFF, ARMED Promulgated:
FORCES OF THE PHILIPPINES,
DIRECTOR GENERAL ARTURO May 3, 2006
LOMIBAO, CHIEF, PHILIPPINE
NATIONAL POLICE,
Respondents G.R. No. 171409
.
x-------------------------------------------------
x
NIEZ CACHO-OLIVARES AND
TRIBUNE PUBLISHING CO., INC.,
Petitioners,

- versus -

HONORABLE SECRETARY
EDUARDO ERMITA AND
HONORABLE DIRECTOR GENERAL G.R. No. 171485
ARTURO C. LOMIBAO,
Respondents.
x-------------------------------------------------
x
FRANCIS JOSEPH G. ESCUDERO,
JOSEPH A. SANTIAGO, TEODORO A.
CASINO, AGAPITO A. AQUINO,
MARIO J. AGUJA, SATUR C.
OCAMPO, MUJIV S. HATAMAN,
JUAN EDGARDO ANGARA,
TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA,
LIZA L. MAZA, IMEE R. MARCOS,
RENATO B. MAGTUBO, JUSTIN
MARC SB. CHIPECO, ROILO GOLEZ,
DARLENE ANTONINO-CUSTODIO,
LORETTA ANN P. ROSALES, JOSEL
G. VIRADOR, RAFAEL V. MARIANO,
GILBERT C. REMULLA, FLORENCIO
G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA
C. NICOLAS, MARVIC M.V.F.
LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL
LIBERTIES REPRESENTED BY
AMADO GAT INCIONG,
Petitioners,

- versus -
EDUARDO R. ERMITA, EXECUTIVE
SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V.
PUNO, SECRETARY, DILG, G.R. No. 171483
GENEROSO SENGA, AFP CHIEF OF
STAFF, ARTURO LOMIBAO, CHIEF
PNP,
Respondents.
x-------------------------------------------------
x
KILUSANG MAYO UNO,
REPRESENTED BY ITS
CHAIRPERSON ELMER C. LABOG
AND SECRETARY GENERAL JOEL
MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS
KILUSANG MAYO UNO
(NAFLU-KMU), REPRESENTED BY
ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C.
PASCUAL, SALVADOR T.
CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND
ROQUE M. TAN,
Petitioners,

- versus -

HER EXCELLENCY, PRESIDENT

GLORIA MACAPAGAL-ARROYO,
THE HONORABLE EXECUTIVE
SECRETARY, EDUARDO ERMITA, G.R. No. 171400
THE CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP
DIRECTOR GENERAL, ARTURO
LOMIBAO,
Respondents.
x-------------------------------------------------
x
ALTERNATIVE LAW GROUPS, INC.
(ALG),
Petitioner,
- versus - G.R. No. 171489

EXECUTIVE SECRETARY EDUARDO

R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL
ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------
x
JOSE ANSELMO I. CADIZ,
FELICIANO M. BAUTISTA, ROMULO
R. RIVERA, JOSE AMOR M.
AMORADO, ALICIA A.
RISOS-VIDAL, FELIMON C. ABELITA
III, MANUEL P. LEGASPI, J.B. JOVY
C. BERNABE, BERNARD L.
DAGCUTA, ROGELIO V. GARCIA
AND INTEGRATED BAR OF THE
PHILIPPINES (IBP),
Petitioners,

- versus -
G.R. No. 171424

HON. EXECUTIVE SECRETARY

EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS
CAPACITY AS AFP CHIEF OF STAFF,
AND DIRECTOR GENERAL ARTURO
LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF,
Respondents.
x-------------------------------------------------
x
LOREN B. LEGARDA,
Petitioner,

- versus -

GLORIA MACAPAGAL-ARROYO, IN
HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO
LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE
PHILIPPINE NATIONAL POLICE
(PNP); GENEROSO SENGA, IN HIS
CAPACITY AS CHIEF OF STAFF OF
THE ARMED FORCES OF THE
PHILIPPINES (AFP); AND EDUARDO
ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY,
Respondents.

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

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid
formula are necessary.[1] Superior strength the use of force cannot
make wrongs into rights. In this regard, the courts should be vigilant in
safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganiban's philosophy of liberty is thus
most relevant. He said: In cases involving liberty, the scales of justice
should weigh heavily against government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak. Laws and
actions that restrict fundamental rights come to the courts with a heavy
presumption against their constitutional validity. [2]

These seven (7) consolidated petitions for certiorari and prohibition

allege that in issuing Presidential Proclamation No. 1017 (PP
1017) and General Order No. 5 (G.O. No. 5), President Gloria
Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend
that respondent officials of the Government, in their professed efforts to
defend and preserve democratic institutions, are actually trampling upon the
very freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with the degree of law,
without which, liberty becomes license?[3]

On February 24, 2006, as the nation celebrated the 20th Anniversary of

the Edsa People Power I, President Arroyo issued PP 1017 declaring a state
of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of

the Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that: The
President. . . whenever it becomes necessary, . . . may call out (the) armed
forces to prevent or suppress. . .rebellion. . ., and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and
to all decrees, orders and regulations promulgated by me personally
or upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.

She cited the following facts as bases:

 WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists the historical enemies of the
democratic Philippine State who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad front, to
bring down the duly constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring

down the President;

WHEREAS, the claims of these elements have been recklessly

magnified by certain segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State

by obstructing governance including hindering the growth of the
economy and sabotaging the people's confidence in government and
their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the

extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the

defense and preservation of the democratic institutions and the State the
primary duty of Government;

WHEREAS, the activities above-described, their consequences,

ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the
Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP

1017, thus:

WHEREAS, over these past months, elements in the political

opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right, represented by
military adventurists - the historical enemies of the democratic Philippine
State and who are now in a tactical alliance and engaged in a concerted
and systematic conspiracy, over a broad front, to bring down the
duly-constituted Government elected in May 2004;
 WHEREAS, these conspirators have repeatedly tried to bring
down our republican government;

WHEREAS, the claims of these elements have been recklessly

magnified by certain segments of the national media;

WHEREAS, these series of actions is hurting the Philippine State

by obstructing governance, including hindering the growth of the economy
and sabotaging the people's confidence in the government and their faith in
the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the

extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the

defense and preservation of the democratic institutions and the State the
primary duty of Government;

WHEREAS, the activities above-described, their consequences,

ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino
people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been

issued declaring a State of National Emergency;

NOW, THEREFORE, I GLORIA

MACAPAGAL-ARROYO, by virtue of the powers vested in me under
the Constitution as President of the Republic of the Philippines, and
Commander-in-Chief of the Republic of the Philippines, and pursuant to
Proclamation No. 1017 dated February 24, 2006, do hereby call upon the
Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of terrorism and lawless violence in
the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the
PNP, as well as the officers and men of the AFP and PNP, to immediately
carry out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.
 On March 3, 2006, exactly one week after the declaration of a state of
national emergency and after all these petitions had been filed, the President
lifted PP 1017. She issued Proclamation No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17,

Article XII of the Constitution, Proclamation No. 1017 dated February
24, 2006, was issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated

February 24, 2006, which were issued on the basis of Proclamation No.
1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless
violence as well as any act of rebellion and to undertake such action as
may be necessary;

WHEREAS, the AFP and PNP have effectively prevented,

suppressed and quelled the acts lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA

MACAPAGAL-ARROYO, President of the Republic of the Philippines,
by virtue of the powers vested in me by law, hereby declare that the
state of national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5,

respondents stated that the proximate cause behind the executive issuances
was the conspiracy among some military officers, leftist insurgents of the
New People's Army (NPA), and some members of the political opposition in
a plot to unseat or assassinate President Arroyo.[4] They considered the aim
to oust or assassinate the President and take-over the reigns of government
as a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor

General specified the facts leading to the issuance of PP 1017
and G.O. No. 5. Significantly, there was no refutation from
petitioners' counsels.

The Solicitor General argued that the intent of the Constitution is to

give full discretionary powers to the President in determining the necessity
of calling out the armed forces. He emphasized that none of the petitioners
has shown that PP 1017 was without factual bases. While he explained that
it is not respondents' task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated hereunder, for
the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza
and First Lieutenants Sonny Sarmiento, Lawrence San Juan and
Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig
City. In a public statement, they vowed to remain defiant and to elude
arrest at all costs. They called upon the people to show and proclaim our
displeasure at the sham regime. Let us demonstrate our disgust, not only by
going to the streets in protest, but also by wearing red bands on our left
arms. [5]

On February 17, 2006, the authorities got hold of a document entitled

Oplan Hackle I which detailed plans for bombings and attacks during the
Philippine Military Academy Alumni Homecoming in Baguio City. The
plot was to assassinate selected targets including some cabinet members and
President Arroyo herself.[6] Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at the
height of the celebration, a bomb was found and detonated at the PMA
parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist

safehouse in Batangas province. Found in his possession were two (2) flash
disks containing minutes of the meetings between members of the Magdalo
Group and the National People's Army (NPA), a tape recorder, audio
cassette cartridges, diskettes, and copies of subversive documents.[7] Prior
to his arrest, Lt. San Juan announced through DZRH that the Magdalo's
D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.

On February 23, 2006, PNP Chief Arturo Lomibao intercepted

information that members of the PNP- Special Action Force were planning
to defect. Thus, he immediately ordered SAF Commanding General
Marcelino Franco, Jr. to disavow any defection. The latter promptly obeyed
and issued a public statement: All SAF units are under the effective control
of responsible and trustworthy officers with proven integrity and
unquestionable loyalty.

On the same day, at the house of former Congressman Peping

Cojuangco, President Cory Aquino's brother, businessmen and mid-level
government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor
Saycon, longtime Arroyo critic, called a U.S. government official about his
group's plans if President Arroyo is ousted. Saycon also phoned a man
code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
Commander of the Army's elite Scout Ranger. Lim said it was all systems
go for the planned movement against Arroyo. [8]

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin

confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the
Philippines (AFP), that a huge number of soldiers would join the rallies to
provide a critical mass and armed component to the Anti-Arroyo protests to
be held on February 24, 2005. According to these two (2) officers, there
was no way they could possibly stop the soldiers because they too, were
breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took
custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine
Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and

revolutionary work within the military and the police establishments in order
to forge alliances with its members and key officials. NPA spokesman
Gregorio Ka Roger Rosal declared: The Communist Party and
revolutionary movement and the entire people look forward to the possibility
in the coming year of accomplishing its immediate task of bringing down the
Arroyo regime; of rendering it to weaken and unable to rule that it will not
take much longer to end it. [9]
 On the other hand, Cesar Renerio, spokesman for the National
Democratic Front (NDF) at North Central Mindanao, publicly announced:
Anti-Arroyo groups within the military and police are growing rapidly,
hastened by the economic difficulties suffered by the families of AFP officers
and enlisted personnel who undertake counter-insurgency operations in the
field. He claimed that with the forces of the national democratic movement,
the anti-Arroyo conservative political parties, coalitions, plus the groups that
have been reinforcing since June 2005, it is probable that the President's
ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication

towers and cell sites in Bulacan and Bataan was also considered as
additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is
the raid of an army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the Philippines
ordering its front organizations to join 5,000 Metro Manila radicals and
25,000 more from the provinces in mass protests.[10]

By midnight of February 23, 2006, the President convened her

security advisers and several cabinet members to assess the gravity of the
fermenting peace and order situation. She directed both the AFP and the
PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.

For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of

all programs and activities related to the 20th anniversary celebration of Edsa
People Power I; and revoked the permits to hold rallies issued earlier by the
local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the President's mind were organized for purposes of
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor
announced that warrantless arrests and take-over of facilities, including
media, can already be implemented. [11]

Undeterred by the announcements that rallies and public assemblies

would not be allowed, groups of protesters (members of Kilusang Mayo
Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo
Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the
intention of converging at the EDSA shrine. Those who were already near
the EDSA site were violently dispersed by huge clusters of anti-riot
police. The well-trained policemen used truncheons, big fiber glass shields,
water cannons, and tear gas to stop and break up the marching groups, and
scatter the massed participants. The same police action was used against the
protesters marching forward to Cubao, Quezon City and to the corner of
Santolan Street and EDSA. That same evening, hundreds of riot policemen
broke up an EDSA celebration rally held along Ayala Avenue and Paseo de
Roxas Street in Makati City.[12]

According to petitioner Kilusang Mayo Uno, the police cited PP 1017

as the ground for the dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested

(without warrant) petitioner Randolf S. David, a professor at the University
of the Philippines and newspaper columnist. Also arrested was his
companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives

of the Criminal Investigation and Detection Group (CIDG) of the PNP, on
the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in
Manila. The raiding team confiscated news stories by reporters, documents,
pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame
in Quezon City were stationed inside the editorial and business offices of the
newspaper; while policemen from the Manila Police District were stationed
outside the building.[13]
 A few minutes after the search and seizure at the Daily Tribune offices,
the police surrounded the premises of another pro-opposition paper, Malaya,
and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael

Defensor, is meant to show a strong presence,' to tell media outlets not to
connive or do anything that would help the rebels in bringing down this
government. The PNP warned that it would take over any media
organization that would not follow standards set by the government during
the state of national emergency. Director General Lomibao stated that if
they do not follow the standards and the standards are - if they would
contribute to instability in the government, or if they do not subscribe to
what is in General Order No. 5 and Proc. No. 1017 we will recommend a
takeover.' National Telecommunications' Commissioner Ronald Solis
urged television and radio networks to cooperate with the government for
the duration of the state of national emergency. He asked for balanced
reporting from broadcasters when covering the events surrounding the
coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules
set out for media coverage when the national security is threatened.[14]

Also, on February 25, 2006, the police arrested Congressman Crispin

Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo
Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a
warrant for his arrest dated 1985. Beltran's lawyer explained that the warrant,
which stemmed from a case of inciting to rebellion filed during the Marcos
regime, had long been quashed. Beltran, however, is not a party in any of
these petitions.

When members of petitioner KMU went to Camp Crame to visit

Beltran, they were told they could not be admitted because of PP 1017 and
G.O. No. 5. Two members were arrested and detained, while the rest were
dispersed by the police.
 Bayan Muna Representative Satur Ocampo eluded arrest when the
police went after him during a public forum at the Sulo Hotel in Quezon
City. But his two drivers, identified as Roel and Art, were taken into
custody.

Retired Major General Ramon Montao, former head of the Philippine

Constabulary, was arrested while with his wife and golfmates at the Orchard
Golf and Country Club in Dasmarias, Cavite.

Attempts were made to arrest Anakpawis Representative Satur

Ocampo, Representative Rafael Mariano, Bayan Muna Representative
Teodoro Casio and Gabriela Representative Liza Maza. Bayan
Muna Representative Josel Virador was arrested at the PAL Ticket Office in
Davao City. Later, he was turned over to the custody of the House of
Representatives where the Batasan 5 decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights
of Representatives Beltran, Satur Ocampo, et al., are not being raised in
these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that

the state of national emergency has ceased to exist.

In the interim, these seven (7) petitions challenging the

constitutionality of PP 1017 and G.O. No. 5 were filed with this Court
against the above-named respondents. Three (3) of these petitions
impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP

1017 on the grounds that (1) it encroaches on the emergency powers of
Congress; (2) it is a subterfuge to avoid the constitutional requirements for
the imposition of martial law; and (3) it violates the constitutional guarantees
of freedom of the press, of speech and of assembly.
 In G.R. No. 171409, petitioners Ninez Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDG's act of raiding
the Daily Tribune offices as a clear case of censorship or prior
restraint. They also claimed that the term emergency refers only to
tsunami, typhoon, hurricane and similar occurrences, hence, there is
absolutely no emergency that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis

Joseph G. Escudero, and twenty one (21) other members of the House of
Representatives, including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017
and G.O. No. 5 constitute usurpation of legislative powers ; violation of
freedom of expression and a declaration of martial law. They alleged
that President Arroyo gravely abused her discretion in calling out the armed
forces without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so.

In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their

members averred that PP 1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the power to enact laws and
decrees; (2) their issuance was without factual basis; and (3) they violate
freedom of expression and the right of the people to peaceably assemble to
redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)

alleged that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of
Article III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of Article
XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged

that PP 1017 is an arbitrary and unlawful exercise by the President of her
Martial Law powers. And assuming that PP 1017 is not really a declaration
of Martial Law, petitioners argued that it amounts to an exercise by the
President of emergency powers without congressional approval. In
addition, petitioners asserted that PP 1017 goes beyond the nature and
function of a proclamation as defined under the Revised Administrative
Code.

And lastly, in G.R. No. 171424, petitioner Loren B. Legarda

maintained that PP 1017 and G.O. No. 5 are unconstitutional for being
violative of the freedom of expression, including its cognate rights such as
freedom of the press and the right to access to information on matters of
public concern, all guaranteed under Article III, Section 4 of the 1987
Constitution. In this regard, she stated that these issuances prevented her
from fully prosecuting her election protest pending before the Presidential
Electoral Tribunal.

In respondents' Consolidated Comment, the Solicitor General

countered that: first, the petitions should be dismissed for
being moot; second, petitioners in G.R. Nos. 171400
(ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.)
and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary
for petitioners to implead President Arroyo as respondent; fourth, PP 1017
has constitutional and legal basis; and fifth, PP 1017 does not violate the
people's right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the
parties on the above interlocking issues which may be summarized as
follows:

A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the
petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R.
Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et
al.), and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual
bases of PP 1017.
 2) Whether PP 1017 and G.O. No. 5 are
unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this

country is the concept of judicial review enunciated in Marbury v.
Madison.[21] This concept rests on the extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the people,

the ultimate source of all political authority. It confers limited powers on
the national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve inviolate
the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of
judicial review.[22]

But the power of judicial review does not repose upon the courts a
self-starting capacity. [23] Courts may exercise such power only when the
following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional question
must be necessary to the determination of the case itself.[24]

Respondents maintain that the first and second requisites are absent,
hence, we shall limit our discussion thereon.
 An actual case or controversy involves a conflict of legal right, an
opposite legal claims susceptible of judicial resolution. It is definite and
concrete, touching the legal relations of parties having adverse
legal interest; a real and substantial controversy admitting of specific
[25]
relief. The Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were rendered moot and
academic by President Arroyo's issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable

controversy by virtue of supervening events,[26] so that a declaration thereon
would be of no practical use or value.[27] Generally, courts decline
jurisdiction over such case[28] or dismiss it on ground of mootness.[29]

The Court holds that President Arroyo's issuance of PP 1021 did not
render the present petitions moot and academic. During the eight (8) days
that PP 1017 was operative, the police officers, according to petitioners,
committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These
are the vital issues that must be resolved in the present petitions. It must be
stressed that an unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation,
inoperative. [30]

The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of
the Constitution;[31] second, the exceptional character of the situation and the
paramount public interest is involved;[32] third,when constitutional issue
raised requires formulation of controlling principles to guide the bench, the
bar, and the public;[33] and fourth, the case is capable of repetition yet
evading review.[34]
 All the foregoing exceptions are present here and justify this Court's
assumption of jurisdiction over the instant petitions. Petitioners alleged that
the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is
no question that the issues being raised affect the public's interest, involving
as they do the people's basic rights to freedom of expression, of assembly
and of the press. Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by
constitutional guarantees.[35] And lastly, respondents' contested actions are
capable of repetition. Certainly, the petitions are subject to
judicial review.

In their attempt to prove the alleged mootness of this case,

respondents cited Chief Justice Artemio V. Panganiban's Separate Opinion
in Sanlakas v. Executive Secretary.[36] However, they failed to take into
account the Chief Justice's very statement that an otherwise moot case may
still be decided provided the party raising it in a proper case has been
and/or continues to be prejudiced or damaged as a direct result of its
issuance. The present case falls right within this exception to the mootness
rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the

Court deems it imperative to have a more than passing discussion on legal
standing or locus standi.

Locus standi is defined as a right of appearance in a court of justice on

a given question. [37] In private suits, standing is governed by the
real-parties-in interest rule as contained in Section 2, Rule 3 of the 1997
Rules of Civil Procedure, as amended. It provides that every action must be
prosecuted or defended in the name of the real party in
interest. Accordingly, the real-party-in interest is the party who stands
to be benefited or injured by the judgment in the suit or the party
entitled to the avails of the suit. [38] Succinctly put, the plaintiff's standing
is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public

suits. Here, the plaintiff who asserts a public right in assailing an
allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other
person. He could be suing as a stranger, or in the category of a citizen,
or taxpayer. In either case, he has to adequately show that he is entitled
to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a
citizen or taxpayer.

Case law in most jurisdictions now allows both citizen and taxpayer
standing in public actions. The distinction was first laid down
[39]
in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer's
suit is in a different category from the plaintiff in a citizen's suit. In the
former, the plaintiff is affected by the expenditure of public funds, while
in the latter, he is but the mere instrument of the public concern. As
held by the New York Supreme Court in People ex rel Case v.
Collins:[40] 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
taxpayer's suits, Terr v. Jordan[41] held that the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied.

However, to prevent just about any person from seeking judicial

interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent direct
injury test in Ex Parte Levitt,[42] later reaffirmed inTileston v.
Ullman.[43] The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a general interest common
to all members of the public.

This Court adopted the direct injury test in our

jurisdiction. In People v. Vera,[44] it held that the person who impugns the
validity of a statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a
result. The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,[45] Manila Race Horse Trainers'
Association v. De la Fuente,[46] Pascual v. Secretary of Public
Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]

However, being a mere procedural technicality, the requirement

of locus standi may be waived by the Court in the exercise of its discretion.
This was done in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan,[49] where the transcendental importance of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon the
issues raised due to the far-reaching implications of the petition
notwithstanding its categorical statement that petitioner therein had no
personality to file the suit. Indeed, there is a chain of cases where this liberal
policy has been observed, allowing ordinary citizens, members of Congress,
and civic organizations to prosecute actions involving the constitutionality or
validity of laws, regulations and rulings.[51]

Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the
principle of transcendental importance. Pertinent are the following
cases:
(1) Chavez v. Public Estates Authority,[52] where the
Court ruled that the enforcement of the constitutional right to
information and the equitable diffusion of natural resources
are matters of transcendental importance which clothe the
petitioner with locus standi;
 (2) Bagong Alyansang Makabayan v.
[53]
Zamora, wherein the Court held that given the
transcendental importance of the issues involved, the Court
may relax the standing requirements and allow the suit to
prosper despite the lack of direct injury to the parties
seeking judicial review of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,[54] while the Court noted

that the petitioners may not file suit in their capacity as
taxpayers absent a showing that Balikatan 02-01 involves the
exercise of Congress' taxing or spending powers,
it reiterated its ruling in Bagong Alyansang Makabayan
v. Zamora,[55] that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing
requirements may be relaxed.

By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following
requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement

of public funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the

validity of the election law in question;

(4) for concerned citizens, there must be a showing that the

issues raised are of transcendental importance which must be
settled early; and

(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
 Significantly, recent decisions show a certain toughening in the
Court's attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status

of Kilosbayan as a people's organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot
sue as a taxpayer absent any allegation that public funds are being misused.
Nor can it sue as a concerned citizen as it does not allege any specific injury
it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc.

v. Comelec,[57] the Court reiterated the direct injury test with respect to
concerned citizens' cases involving constitutional issues. It held that there
must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act.

In Lacson v. Perez,[58] the Court ruled that one of the

petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real
party-in-interest as it had not demonstrated any injury to itself or to its
leaders, members or supporters.

In Sanlakas v. Executive Secretary,[59] the Court ruled that only the

petitioners who are members of Congress have standing to sue, as they claim
that the President's declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative powers.
As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society,
the Court declared them to be devoid of standing, equating them with the
LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David

and Llamas, is beyond doubt. The same holds true with petitioners in G.R.
No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged
direct injury resulting from illegal arrest and unlawful search
committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was

usurpation of legislative powers. They also raised the issue of whether or
not the concurrence of Congress is necessary whenever the alarming powers
incident to Martial Law are used. Moreover, it is in the interest of justice
that those affected by PP 1017 can be represented by their Congressmen in
bringing to the attention of the Court the alleged violations of their basic
rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of Small Landowners
in the Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v.
Philippine Amusement and Gaming Corporation,[63] and Taada v.
Tuvera,[64] that when the issue concerns a public right, it is sufficient that the
petitioner is a citizen and has an interest in the execution of the laws.

In G.R. No. 171483, KMU's assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient to give it
legal standing. Organizations may be granted standing to assert the
rights of their members.[65] We take judicial notice of the announcement
by the Office of the President banning all rallies and canceling all permits
for public assemblies following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers
of the Integrated Bar of the Philippines (IBP) have no legal standing, having
failed to allege any direct or potential injury which the IBP as an institution
or its members may suffer as a consequence of the issuance of PP No. 1017
and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,[66] the
Court held that the mere invocation by the IBP of its duty to preserve the
rule of law and nothing more, while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner
have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer

to file the instant petition as there are no allegations of illegal disbursement
of public funds. The fact that she is a former Senator is of no
consequence. She can no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No.
5. Her claim that she is a media personality will not likewise aid her
because there was no showing that the enforcement of these issuances
prevented her from pursuing her occupation. Her submission that she has
pending electoral protest before the Presidential Electoral Tribunal is
likewise of no relevance. She has not sufficiently shown that PP 1017 will
affect the proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the
standing rules.

It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is
the underlying legal tenet of the liberality doctrine on legal standing. It
cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino
people. To paraphrase Justice Laurel, the whole of Philippine society now
waits with bated breath the ruling of this Court on this very critical matter.
The petitions thus call for the application of the transcendental importance
doctrine, a relaxation of the standing requirements for the petitioners in the
PP 1017 cases.

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as

respondent. Settled is the doctrine that the President, during his tenure of
office or actual incumbency,[67] may not be sued in any civil or criminal case,
and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if
he can be dragged into court litigations while serving as such. Furthermore,
it is important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his usefulness
in the discharge of the many great and important duties imposed upon him
by the Constitution necessarily impairs the operation of the
Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to
the people[68] but he may be removed from office only in the mode provided
by law and that is by impeachment.[69]

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was

not necessary for President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the
President's exercise of his Commander-in-Chief power has reached its
distilled point - from the indulgent days of Barcelon v.
Baker[70] and Montenegro v. Castaneda[71] to the volatile era
of Lansang v. Garcia,[72] Aquino, Jr. v. Enrile,[73] and
Garcia-Padilla v. Enrile.[74] The tug-of-war always cuts across the line
defining political questions, particularly those questions in regard to which
full discretionary authority has been delegated to the legislative or executive
branch of the government. [75] Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an exigency has arisen
belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court
were unanimous in the conviction that the Court has the authority to inquire
into the existence of factual bases in order to determine their constitutional
sufficiency. From the principle of separation of powers, it shifted the
focus to the system of checks and balances, under which the President is
supreme, x x x only if and when he acts within the sphere allotted to him
by the Basic Law, and the authority to determine whether or not
he has so acted is vested in the Judicial Department,which in this
respect, is, in turn, constitutionally supreme. [76] In
1973, the unanimous Court of Lansang was divided in Aquino v.
Enrile.[77] There, the Court was almost evenly divided on the
issue of whether the validity of the imposition of Martial Law
[78]
is a political or justiciable question. Then came Garcia-Padilla v.
Enrile which greatly diluted Lansang. It declared that there is a need to
re-examine the latter case, ratiocinating that in times of war or national
emergency, the President must be given absolute control for the very life
of the nation and the government is in great peril. The President, it
intoned, is answerable only to his conscience, the People, and God. [79]

The Integrated Bar of the Philippines v. Zamora[80] -- a recent case

most pertinent to these cases at bar -- echoed a principle similar
to Lansang. While the Court considered the President's calling-out power
as a discretionary power solely vested in his wisdom, it stressed that this
does not prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. This ruling is mainly a
result of the Court's reliance on Section 1, Article VIII of 1987 Constitution
which fortifies the authority of the courts to determine in an appropriate
action the validity of the acts of the political departments. Under the new
definition of judicial power, the courts are authorized not only to settle
actual controversies involving rights which are legally demandable and
enforceable, but also to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the government. The
latter part of the authority represents a broadening of judicial power to
enable the courts of justice to review what was before a forbidden
territory, to wit, the discretion of the political departments of the
government.[81] It speaks of judicial prerogative not only in terms
of power but also of duty.[82]
 As to how the Court may inquire into the President's exercise of
power, Lansang adopted the test that judicial inquiry can go no further than
to satisfy the Court not that the President's decision is correct, but that the
President did not act arbitrarily. Thus, the standard laid down is not
correctness, but arbitrariness.[83] In Integrated Bar of the Philippines, this
Court further ruled that it is incumbent upon the petitioner to show that
the President's decision is totally bereft of factual basis and that if he
fails, by way of proof, to support his assertion, then this Court cannot
undertake an independent investigation beyond the pleadings.

Petitioners failed to show that President Arroyo's exercise of the

calling-out power, by issuing PP 1017, is totally bereft of factual basis. A
reading of the Solicitor General's Consolidated Comment and Memorandum
shows a detailed narration of the events leading to the issuance of PP 1017,
with supporting reports forming part of the records. Mentioned are the
escape of the Magdalo Group, their audacious threat of the Magdalo D-Day,
the defections in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine
Army showing the growing alliance between the NPA and the
military. Petitioners presented nothing to refute such events. Thus, absent
any contrary allegations, the Court is convinced that the President was
justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was

not expected to simply fold her arms and do nothing to prevent or suppress
what she believed was lawless violence, invasion or rebellion. However,
the exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists

 on the Power of the President
in Times of Emergency

This case brings to fore a contentious subject -- the power of the

President in times of emergency. A glimpse at the various political theories
relating to this subject provides an adequate backdrop for our ensuing
discussion.

John Locke, describing the architecture of civil government, called

upon the English doctrine of prerogative to cope with the problem of
emergency. In times of danger to the nation, positive law enacted by the
legislature might be inadequate or even a fatal obstacle to the promptness of
action necessary to avert catastrophe. In these situations, the Crown retained
a prerogative power to act according to discretion for the public good,
without the proscription of the law and sometimes even against it.
[84]
But Locke recognized that this moral restraint might not suffice to avoid
abuse of prerogative powers. Who shall judge the need for resorting to
the prerogative and how may its abuse be avoided? Here, Locke readily
admitted defeat, suggesting that the people have no other remedy in this,
as in all other cases where they have no judge on earth, but to appeal to
Heaven. [85]

Jean-Jacques Rousseau also assumed the need for temporary

suspension of democratic processes of government in time of
emergency. According to him:

The inflexibility of the laws, which prevents them from adopting

themselves to circumstances, may, in certain cases, render them disastrous
and make them bring about, at a time of crisis, the ruin of the State

It is wrong therefore to wish to make political institutions as strong

as to render it impossible to suspend their operation. Even Sparta allowed
its law to lapse...
 If the peril is of such a kind that the paraphernalia of the laws are
an obstacle to their preservation, the method is to nominate a supreme
lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general will,
and it clear that the people's first intention is that the State shall not
perish.[86]

Rosseau did not fear the abuse of the emergency dictatorship or

supreme magistracy as he termed it. For him, it would more likely be
cheapened by indiscreet use. He was unwilling to rely upon an appeal to
heaven. Instead, he relied upon a tenure of office of prescribed duration to
avoid perpetuation of the dictatorship.[87]

John Stuart Mill concluded his ardent defense of representative

government: I am far from condemning, in cases of extreme necessity,
the assumption of absolute power in the form of a temporary
dictatorship. [88]

Nicollo Machiavelli's view of emergency powers, as one element in

the whole scheme of limited government, furnished an ironic contrast to the
Lockean theory of prerogative. He recognized and attempted to bridge this
chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to

resort to extra constitutional measures; for although they may for a time
be beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded
under that pretext but for evil purposes. Thus, no republic will ever be
perfect if she has not by law provided for everything, having a remedy for
every emergency and fixed rules for applying it.[89]

Machiavelli in contrast to Locke, Rosseau and Mill sought to

incorporate into the constitution a regularized system of standby emergency
powers to be invoked with suitable checks and controls in time of national
danger. He attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.[90]

Contemporary political theorists, addressing themselves to the

problem of response to emergency by constitutional democracies, have
employed the doctrine of constitutional dictatorship.[91] Frederick M.
Watkins saw no reason why absolutism should not be used as a means
for the defense of liberal institutions, provided it serves to protect
established institutions from the danger of permanent injury in a period
of temporary emergency and is followed by a prompt return to the
previous forms of political life. [92] He recognized the two (2) key
elements of the problem of emergency governance, as well as all
constitutional governance: increasing administrative powers of the
executive, while at the same time imposing limitation upon that power.
[93]
Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: The
period of dictatorship must be relatively shortDictatorship should
always be strictly legitimate in characterFinal authority to determine
the need for dictatorship in any given case must never rest with the
dictator himself [94] and the objective of such an emergency dictatorship
should be strict political conservatism.

Carl J. Friedrich cast his analysis in terms similar to those of

Watkins.[95] It is a problem of concentrating power in a government
where power has consciously been divided to cope with situations of
unprecedented magnitude and gravity. There must be a broad grant of
powers, subject to equally strong limitations as to who shall exercise such
powers, when, for how long, and to what end. [96] Friedrich, too, offered
criteria for judging the adequacy of any of scheme of emergency powers, to
wit: The emergency executive must be appointed by constitutional
means i.e., he must be legitimate; he should not enjoy power to
determine the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of
emergency action must be the defense of the constitutional order. [97]

Clinton L. Rossiter, after surveying the history of the employment of

emergency powers in Great Britain, France, Weimar, Germany and the
United States, reverted to a description of a scheme of constitutional
dictatorship as solution to the vexing problems presented by
emergency.[98] Like Watkins and Friedrich, he stated a priori the conditions
of success of the constitutional dictatorship, thus:

1) No general regime or particular institution of

constitutional dictatorship should be initiated unless it is necessary
or even indispensable to the preservation of the State and its
constitutional order

2) the decision to institute a constitutional dictatorship

should never be in the hands of the man or men who will constitute
the dictator

3) No government should initiate a constitutional

dictatorship without making specific provisions for its
termination

4) all uses of emergency powers and all readjustments in

the organization of the government should be effected in pursuit of
constitutional or legal requirements

5) no dictatorial institution should be adopted, no right

invaded, no regular procedure altered any more than is absolutely
necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a

constitutional dictatorship should never be permanent in character
or effect

7) The dictatorship should be carried on by persons

representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every

action taken under a constitutional dictatorship. . .
 9) The decision to terminate a constitutional dictatorship,
like the decision to institute one should never be in the hands of the
man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the

termination of the crisis for which it was instituted

11) the termination of the crisis must be followed by a

complete return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional
dictatorship[99]

Rossiter accorded to legislature a far greater role in the oversight exercise of

emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency,
and he places great faith in the effectiveness of congressional investigating
committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light
of recent experience, were one in saying that, the suggestion that
democracies surrender the control of government to an authoritarian
ruler in time of grave danger to the nation is not based upon sound
constitutional theory. To appraise emergency power in terms of
constitutional dictatorship serves merely to distort the problem and hinder
realistic analysis. It matters not whether the term dictator is used in its
normal sense (as applied to authoritarian rulers) or is employed to embrace
all chief executives administering emergency powers. However used,
constitutional dictatorship cannot be divorced from the implication of
suspension of the processes of constitutionalism. Thus, they favored instead
the concept of constitutionalism articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the
analysis of problems of emergency powers, and which is consistent with
the findings of this study, is that formulated by Charles H. McIlwain.
While it does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis is
placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in
government. And in discussing the meaning of constitutionalism, he
insisted that the historical and proper test of constitutionalism was the
existence of adequate processes for keeping government
 responsible. He refused to equate constitutionalism with the enfeebling of
government by an exaggerated emphasis upon separation of powers and
substantive limitations on governmental power. He found that the really
effective checks on despotism have consisted not in the weakening of
government but, but rather in the limiting of it; between which there is a
great and very significant difference. In associating constitutionalism
with limited as distinguished from weak government,
McIlwain meant government limited to the orderly procedure of law
as opposed to the processes of force. The two fundamental correlative
elements of constitutionalism for which all lovers of liberty must yet
fight are the legal limits to arbitrary power and a complete political
responsibility of government to the governed.[101]

In the final analysis, the various approaches to emergency of the

above political theorists - from Lock's theory of prerogative, to Watkins'
doctrine of constitutional dictatorship and, eventually, to McIlwain's
principle of constitutionalism --- ultimately aim to solve one real problem
in emergency governance, i.e., that of allotting increasing areas of
discretionary power to the Chief Executive, while insuring that such
powers will be exercised with a sense of political responsibility and
under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the
fetters of a repressive regime, the 1986 Constitutional Commission, in
drafting the 1987 Constitution, endeavored to create a government in the
concept of Justice Jackson's balanced power structure. [102] Executive,
legislative, and judicial powers are dispersed to the President, the Congress,
and the Supreme Court, respectively. Each is supreme within its own
sphere. But none has the monopoly of power in times of
emergency. Each branch is given a role to serve as limitation or check
upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In
other words, in times of emergency, our Constitution reasonably demands
that we repose a certain amount of faith in the basic integrity and wisdom of
the Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.
 a. Facial Challenge

Petitioners contend that PP 1017 is void on its face because of its

overbreadth. They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a chilling effect to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is

uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool

developed for testing on their faces statutes in free speech cases, also
known under the American Law as First Amendment cases.[103]

A plain reading of PP 1017 shows that it is not primarily directed to

speech or even speech-related conduct. It is actually a call upon the AFP to
prevent or suppress all forms of lawless violence. In United States v.
Salerno,[104] the US Supreme Court held that we have not recognized an
overbreadth' doctrine outside the limited context of the First
Amendment (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the

validity of a law that reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected conduct.
Undoubtedly, lawless violence, insurrection and rebellion are considered
harmful and constitutionally unprotected conduct. In Broadrick v.
Oklahoma,[105] it was held:

It remains a matter of no little difficulty' to determine when a law

may properly be held void on its face and when such summary action' is
inappropriate. But the plain import of our cases is, at the very least,
that facial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids the
 State to sanction moves from pure speech' toward conduct and that
conduct even if expressive falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected
conduct.

Thus, claims of facial overbreadth are entertained in cases involving

statutes which, by their terms, seek to regulate only spoken words and
again, that overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be
applied to protected conduct. [106] Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.

Second, facial invalidation of laws is considered as manifestly strong

medicine, to be used sparingly and only as a last resort, and is
generally disfavored; [107] The reason for this is obvious. Embedded in the
traditional rules governing constitutional adjudication is the principle that a
person to whom a law may be applied will not be heard to challenge a law
on the ground that it may conceivably be applied unconstitutionally to others,
i.e., in other situations not before the Court.[108] A writer and scholar in
Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is

that it marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the
rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted
to raise the rights of third parties; and the court invalidates the entire
statute on its face, not merely as applied for so that the overbroad law
becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the chilling; deterrent effect of the
overbroad statute on third parties not courageous enough to bring
suit. The Court assumes that an overbroad law's very existence may cause
 others not before the court to refrain from constitutionally protected
speech or expression. An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will

require the Court to examine PP 1017 and pinpoint its flaws and defects, not
on the basis of its actual operation to petitioners, but on the assumption or
prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before the
statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy,
the impact on the legislative process of the relief sought, and above
all the speculative and amorphous nature of the required line-by-line
analysis of detailed statutes,...ordinarily results in a kind of case that
is wholly unsatisfactory for deciding constitutional questions, whichever
way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most

difficult challenge to mount successfully, since the challenger must establish
that there can be no instance when the assailed law may be valid. Here,
petitioners did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of

vagueness. This, too, is unwarranted.

Related to the overbreadth doctrine is the void for vagueness doctrine

which holds that a law is facially invalid if men of common intelligence
must necessarily guess at its meaning and differ as to its application.
[110]
It is subject to the same principles governing overbreadth doctrine. For
one, it is also an analytical tool for testing on their faces statutes in free
speech cases. And like overbreadth, it is said that a litigant may challenge a
statute on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its
application. They also failed to establish that men of common intelligence
cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important

provisions, thus:

First provision:

by virtue of the power vested upon me by Section 18,

Artilce VII do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as
well any act of insurrection or rebellion

Second provision:

and to enforce obedience to all the laws and to all

decrees, orders and regulations promulgated by me personally
or upon my direction;

Third provision:

as provided in Section 17, Article XII of the Constitution

do hereby declare a State of National Emergency.
First Provision: Calling-out Power

The first provision pertains to the President's calling-out power. In

Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O.
Tinga, held that Section 18, Article VII of the Constitution reproduced as
follows:

Sec. 18. The President shall be the Commander-in-Chief of all

armed forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least
a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President, the Congress may, in
the same manner, extend such proclamation or suspension for a period to
be determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.

The Congress, if not in session, shall within twenty-four hours

following such proclamation or suspension, convene in accordance with its
rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed

by any citizen, the sufficiency of the factual bases of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from
its filing.

A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
 The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion.

During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.

grants the President, as Commander-in-Chief, a sequence of graduated

powers. From the most to the least benign, these are: the calling-out power,
the power to suspend the privilege of the writ of habeas corpus, and the
power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora,[112] the Court ruled that the only criterion for the exercise of the
calling-out power is that whenever it becomes necessary, the President
may call the armed forces to prevent or suppress lawless violence,
invasion or rebellion. Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her
Office's vast intelligence network, she is in the best position to determine the
actual condition of the country.

Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and
rebellion. This involves ordinary police action. But every act that goes
beyond the President's calling-out power is considered illegal or ultra
vires. For this reason, a President must be careful in the exercise of his
powers. He cannot invoke a greater power when he wishes to act under a
lesser power. There lies the wisdom of our Constitution, the greater the
power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the

President's authority to declare a state of rebellion (in Sanlakas) and the
authority to proclaim a state of national emergency. While President
Arroyo's authority to declare a state of rebellion emanates from her powers
as Chief Executive, the statutory authority cited inSanlakas was Section 4,
Chapter 2, Book II of the Revised Administrative Code of 1987, which
provides:
 SEC. 4. Proclamations. Acts of the President fixing a
date or declaring a status or condition of public moment or interest,
upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.

President Arroyo's declaration of a state of rebellion was merely an

act declaring a status or condition of public moment or interest, a declaration
allowed under Section 4 cited above. Such declaration, in the words
of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of
national emergency, President Arroyo did not only rely on Section 18,
Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on Section
17, Article XII, a provision on the State's extraordinary power to take over
privately-owned public utility and business affected with public
interest. Indeed, PP 1017 calls for the exercise of an awesome
power. Obviously, such Proclamation cannot be deemed harmless, without
legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a

declaration of Martial Law. It is no so. What defines the character of PP
1017 are its wordings. It is plain therein that what the President invoked was
her calling-out power.

The declaration of Martial Law is a warn[ing] to citizens that the

military power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts, they must,
upon pain of arrest and punishment, not commit any acts which will in any
way render more difficult the restoration of order and the enforcement of law.
[113]

In his Statement before the Senate Committee on Justice on March

13, 2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional
law, said that of the three powers of the President as Commander-in-Chief,
the power to declare Martial Law poses the most severe threat to civil
liberties. It is a strong medicine which should not be resorted to lightly. It
cannot be used to stifle or persecute critics of the government. It is placed in
the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual
freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial

Law. It is no more than a call by the President to the armed forces to
prevent or suppress lawless violence. As such, it cannot be used to justify
acts that only under a valid declaration of Martial Law can be done. Its use
for any other purpose is a perversion of its nature and scope, and any act
done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of
news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of Martial Law
or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a

declaration of Martial Law. It is merely an exercise of President Arroyo's
calling-out power for the armed forces to assist her in preventing or
suppressing lawless violence.

Second Provision: Take Care Power

 The second provision pertains to the power of the President to ensure
that the laws be faithfully executed. This is based on Section 17, Article VII
which reads:

SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.

As the Executive in whom the executive power is vested,[115] the

primary function of the President is to enforce the laws as well as to
formulate policies to be embodied in existing laws. He sees to it that all
laws are enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect
that as President of the Philippines, he will, among others, execute its laws.
[116]
In the exercise of such function, the President, if needed, may employ
the powers attached to his office as the Commander-in-Chief of all the
armed forces of the country,[117] including the Philippine National
Police[118] under the Department of Interior and Local Government.[119]

Petitioners, especially Representatives Francis Joseph G. Escudero,

Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel
Virador argue that PP 1017 is unconstitutional as it arrogated upon President
Arroyo the power to enact laws and decrees in violation of Section 1, Article
VI of the Constitution, which vests the power to enact laws in
Congress. They assail the clause to enforce obedience to all the laws and
to all decrees, orders and regulations promulgated by me personally or
upon my direction.

Petitioners' contention is understandable. A reading of PP 1017

operative clause shows that it was lifted[120] from Former President Marcos'
Proclamation No. 1081, which partly reads:
 NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines by virtue of the powers vested upon me by Article VII,
Section 10, Paragraph (2) of the Constitution, do hereby place the entire
Philippines as defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos

legislative power. Its enabling clause states: to enforce obedience to all
the laws and decrees, orders and regulations promulgated by me
personally or upon my direction. Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction.

Is it within the domain of President Arroyo to promulgate decrees ?

PP 1017 states in
part: to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction.

The President is granted an Ordinance Power under Chapter 2, Book

III of Executive Order No. 292 (Administrative Code of 1987). She may
issue any of the following:

Sec. 2. Executive Orders. Acts of the President providing for

rules of a general or permanent character in implementation or execution
of constitutional or statutory powers shall be promulgated in executive
orders.
Sec. 3. Administrative Orders. Acts of the President which
relate to particular aspect of governmental operations in pursuance of his
duties as administrative head shall be promulgated in administrative
orders.
 Sec. 4. Proclamations. Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force
of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters
of administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied
in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on
matters relating to internal administration, which the President desires to
bring to the attention of all or some of the departments, agencies, bureaus
or offices of the Government, for information or compliance, shall be
embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines shall be issued as general or special orders.

President Arroyo's ordinance power is limited to the foregoing

issuances. She cannot issue decrees similar to those issued by Former
President Marcos under PP 1081. Presidential Decrees are laws which are of
the same category and binding force as statutes because they were issued by
the President in the exercise of his legislative power during the period of
Martial Law under the 1973 Constitution.[121]

This Court rules that the assailed PP 1017 is unconstitutional

insofar as it grants President Arroyo the authority to promulgate
decrees. Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that [t]he legislative
power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives. To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can justify
President Arroyo's exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws

through the military?
 As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to laws, she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent to its
duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to

all decrees, orders, and regulations promulgated by me
personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.

The import of this provision is that President Arroyo, during the state
of national emergency under PP 1017, can call the military not only to
enforce obedience to all the laws and to all decrees x x x but also to act
pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so

requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above

provision when she issued PP 1017?
 The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any authority or
delegation from Congress, to take over or direct the operation of any
privately-owned public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a

product of the martial law thinking of the 1971 Constitutional
Convention.[122] In effect at the time of its approval was President Marcos'
Letter of Instruction No. 2 dated September 22, 1972 instructing the
Secretary of National Defense to take over the management, control and
operation of the Manila Electric Company, the Philippine Long Distance
Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and)
Filipinas Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present national
emergency.

Petitioners, particularly the members of the House of Representatives,

claim that President Arroyo's inclusion of Section 17, Article XII in PP 1017
is an encroachment on the legislature's emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the President's authority

to declare a state of national emergency and to exercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article VII
grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional issues
arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses

in joint session assembled, voting separately, shall have the sole power to
declare the existence of a state of war.
 (2) In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next
adjournment thereof.

It may be pointed out that the second paragraph of the above provision
refers not only to war but also to other national emergency. If the
intention of the Framers of our Constitution was to withhold from the
President the authority to declare a state of national emergency pursuant to
Section 18, Article VII (calling-out power) and grant it to Congress (like the
declaration of the existence of a state of war), then the Framers could have
provided so. Clearly, they did not intend that Congress should first authorize
the President before he can declare a state of national emergency. The
logical conclusion then is that President Arroyo could validly declare the
existence of a state of national emergency even in the absence of a
Congressional enactment.

But the exercise of emergency powers, such as the taking over of

privately owned public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari

materia are to be construed together. Otherwise stated, different clauses,
sections, and provisions of a constitution which relate to the same subject
matter will be construed together and considered in the light of each
other.[123] Considering that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national emergencies, they must be
read together to determine the limitation of the exercise of emergency
powers.

Generally, Congress is the repository of emergency powers. This

is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate
such powers to the President. Certainly, a body cannot delegate a power
not reposed upon it. However, knowing that during grave emergencies, it
may not be possible or practicable for Congress to meet and exercise its
powers, the Framers of our Constitution deemed it wise to allow Congress to
grant emergency powers to the President, subject to certain conditions, thus:

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

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

(3) The delegation must be subject to such restrictions as the

Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.[124]

Section 17, Article XII must be understood as an aspect of the

emergency powers clause. The taking over of private business affected with
public interest is just another facet of the emergency powers generally
reposed upon Congress. Thus, when Section 17 states that the the State
may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest, it refers to
Congress, not the President. Now, whether or not the President may
exercise such power is dependent on whether Congress may delegate it to
him pursuant to a law prescribing the reasonable terms thereof. Youngstown
Sheet & Tube Co. et al. v. Sawyer,[125] held:

It is clear that if the President had authority to issue the order he

did, it must be found in some provision of the Constitution. And it is not
claimed that express constitutional language grants this power to the
President. The contention is that presidential power should be implied
from the aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that The executive
Power shall be vested in a President . . . .; that he shall take Care that the
Laws be faithfully executed; and that he shall be Commander-in-Chief
of the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the

President's military power as Commander-in-Chief of the Armed
Forces. The Government attempts to do so by citing a number of cases
upholding broad powers in military commanders engaged in day-to-day
 fighting in a theater of war. Such cases need not concern us here. Even
though theater of war be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the
Commander-in-Chief of the Armed Forces has the ultimate power as
such to take possession of private property in order to keep labor
disputes from stopping production. This is a job for the nation's
lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several

constitutional provisions that grant executive power to the
President. In the framework of our Constitution, the President's
power to see that the laws are faithfully executed refutes the idea that
he is to be a lawmaker. The Constitution limits his functions in the
lawmaking process to the recommending of laws he thinks wise and
the vetoing of laws he thinks bad. And the Constitution is neither
silent nor equivocal about who shall make laws which the President is
to execute. The first section of the first article says that All legislative
Powers herein granted shall be vested in a Congress of the United
States. . . [126]

Petitioner Cacho-Olivares, et al. contends that the term emergency

under Section 17, Article XII refers to tsunami,
typhoon, hurricane and similar occurrences. This is a limited view
of emergency.

Emergency, as a generic term, connotes the existence of conditions

suddenly intensifying the degree of existing danger to life or well-being
beyond that which is accepted as normal. Implicit in this definitions are the
elements of intensity, variety, and perception.[127] Emergencies, as
perceived by legislature or executive in the United Sates since 1933, have
been occasioned by a wide range of situations, classifiable under three (3)
principal heads: a) economic,[128] b) natural disaster,[129] and c) national
security.[130]

Emergency, as contemplated in our Constitution, is of the same

breadth. It may include rebellion, economic crisis, pestilence or epidemic,
typhoon, flood, or other similar catastrophe of nationwide proportions or
effect.[131] This is evident in the Records of the Constitutional Commission,
thus:
MR. GASCON. Yes. What is the Committee's definition of national
emergency which appears in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take
over or direct the operation of any privately owned public utility or
business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression,

for example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los

Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term
national emergency.

MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.[132]

x x x x x x

MR. TINGSON. May I ask the committee if national emergency

refers to military national emergency or could this be economic
emergency?

MR. VILLEGAS. Yes, it could refer to both military or economic

dislocations.

MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may

not be able to convene and, therefore, unable to delegate to the President the
power to take over privately-owned public utility or business affected with
public interest.

In Araneta v. Dinglasan,[134] this Court emphasized that legislative

power, through which extraordinary measures are exercised, remains in
Congress even in times of crisis.
 xxx

After all the criticisms that have been made against the
efficiency of the system of the separation of powers, the fact
remains that the Constitution has set up this form of government,
with all its defects and shortcomings, in preference to the
commingling of powers in one man or group of men. The Filipino
people by adopting parliamentary government have given notice
that they share the faith of other democracy-loving peoples in this
system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all
the time, not excepting periods of crisis no matter how
serious. Never in the history of the United States, the basic
features of whose Constitution have been copied in ours, have
specific functions of the legislative branch of enacting laws been
surrendered to another department unless we regard as
legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting
a total war, or when it was engaged in a life-and-death struggle to
preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in
normal circumstances the various branches, executive, legislative,
and judicial,' given the ability to act, are called upon to perform
the duties and discharge the responsibilities committed to them
respectively.

Following our interpretation of Section 17, Article XII, invoked by

President Arroyo in issuing PP 1017, this Court rules that such Proclamation
does not authorize her during the emergency to temporarily take over or
direct the operation of any privately owned public utility or business affected
with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare

a state of national emergency, however, without legislation, he has
no power to take over privately-owned public utility or business
affected with public interest. The President cannot decide whether
exceptional circumstances exist warranting the take over of
privately-owned public utility or business affected with public
interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point
out the types of businesses affected with public interest that should be taken
over. In short, the President has no absolute authority to exercise all the
powers of the State under Section 17, Article VII in the absence of an
emergency powers act passed by Congress.

c. AS APPLIED CHALLENGE

One of the misfortunes of an emergency, particularly, that which

pertains to security, is that military necessity and the guaranteed rights of the
individual are often not compatible. Our history reveals that in the crucible
of conflict, many rights are curtailed and trampled upon. Here, the right
against unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of
assembly under the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate direct injury.

In G.R. No. 171396, petitioners David and Llamas alleged that, on

February 24, 2006, they were arrested without warrants on their way to
EDSA to celebrate the 20thAnniversary of People Power I. The arresting
officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares

and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the
CIDG operatives raided and ransacked without warrant their office. Three
policemen were assigned to guard their office as a possible source of
destabilization. Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et

al. alleged that their members were turned away and dispersed when they
went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary
of People Power I.
 A perusal of the direct injuries allegedly suffered by the said
petitioners shows that they resulted from the implementation, pursuant to
G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5

on the basis of these illegal acts? In general, does the illegal implementation
of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused[135] and may afford
an opportunity for abuse in the manner of application.[136] The validity
of a statute or ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired, not from its effects in a
particular case.[137] PP 1017 is merely an invocation of the President's
calling-out power. Its general purpose is to command the AFP to suppress
all forms of lawless violence, invasion or rebellion. It had accomplished the
end desired which prompted President Arroyo to issue PP 1021. But there is
nothing in PP 1017 allowing the police, expressly or impliedly, to conduct
illegal arrest, search or violate the citizens' constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on

the ground that its implementor committed illegal acts? The answer is no.
The criterion by which the validity of the statute or ordinance is to be
measured is the essential basis for the exercise of power, and not a mere
incidental result arising from its exertion.[138] This is logical. Just imagine
the absurdity of situations when laws maybe declared unconstitutional just
because the officers implementing them have acted arbitrarily. If this were
so, judging from the blunders committed by policemen in the cases passed
upon by the Court, majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time ago.
 President Arroyo issued G.O. No. 5 to carry into effect the provisions
of PP 1017. General orders are acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines.
They are internal rules issued by the executive officer to his subordinates
precisely for the proper and efficientadministration of law. Such rules and
regulations create no relation except between the official who issues them
and the official who receives them.[139] They are based on and are the
product of, a relationship in which power is their source, and obedience,
their object.[140] For these reasons, one requirement for these rules to be
valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out
the necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.

Unlike the term lawless violence which is unarguably extant in our

statutes and the Constitution, and which is invariably associated with
invasion, insurrection or rebellion, the phrase acts of terrorism is still an
amorphous and vague concept. Congress has yet to enact a law defining and
punishing acts of terrorism.

In fact, this definitional predicament or the absence of an agreed

definition of terrorism confronts not only our country, but the
international
community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the fight

against terrorism has become one of the basic slogans when it comes to
the justification of the use of force against certain states and against groups
operating internationally. Lists of states sponsoring terrorism and of
terrorist organizations are set up and constantly being updated according to
criteria that are not always known to the public, but are clearly determined
by strategic interests.
 The basic problem underlying all these military actions or threats
of the use of force as the most recent by the United States against Iraq
consists in the absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization

of acts of violence either by states, by armed groups such as liberation
movements, or by individuals.

The dilemma can by summarized in the saying One country's

terrorist is another country's freedom fighter. The apparent contradiction
or lack of consistency in the use of the term terrorism may further be
demonstrated by the historical fact that leaders of national liberation
movements such as Nelson Mandela in South Africa, Habib Bourgouiba in
Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were
originally labeled as terrorists by those who controlled the territory at the
time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts

the differentia specifica distinguishing those acts from eventually
legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization
has been trying in vain to reach a consensus on the basic issue of
definition. The organization has intensified its efforts recently, but has
been unable to bridge the gap between those who associate terrorism
with any violent act by non-state groups against civilians, state
functionaries or infrastructure or military installations, and those who
believe in the concept of the legitimate use of force when resistance
against foreign occupation or against systematic oppression of ethnic
and/or religious groups within a state is concerned.

The dilemma facing the international community can best be

illustrated by reference to the contradicting categorization of organizations
and movements such as Palestine Liberation Organization (PLO) which
is a terrorist group for Israel and a liberation movement for Arabs and
Muslims the Kashmiri resistance groups who are terrorists in the
perception of India, liberation fighters in that of Pakistan the earlier
Contras in Nicaragua freedom fighters for the United States, terrorists
for the Socialist camp or, most drastically, the Afghani Mujahedeen
(later to become the Taliban movement): during the Cold War period they
were a group of freedom fighters for the West, nurtured by the United
States, and a terrorist gang for the Soviet Union. One could go on and on
in enumerating examples of conflicting categorizations that cannot be
reconciled in any way because of opposing political interests that are at
the roots of those perceptions.
 How, then, can those contradicting definitions and conflicting
perceptions and evaluations of one and the same group and its actions be
explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on
whether a state is in the position of an occupying power or in that of a rival,
or adversary, of an occupying power in a given territory, the definition of
terrorism will fluctuate accordingly. A state may eventually see itself as
protector of the rights of a certain ethnic group outside its territory and
will therefore speak of a liberation struggle, not of terrorism when acts
of violence by this group are concerned, and vice-versa.

The United Nations Organization has been unable to reach a

decision on the definition of terrorism exactly because of these conflicting
interests of sovereign states that determine in each and every instance how
a particular armed movement (i.e. a non-state actor) is labeled in regard to
the terrorists-freedom fighter dichotomy. A policy of double standards
on this vital issue of international affairs has been the unavoidable
consequence.

This definitional predicament of an organization consisting of

sovereign states and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! has become even more serious
in the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being marginalized; and the
problem has become even more acute since the terrorist attacks of 11
September 2001 I the United States.[141]

The absence of a law defining acts of terrorism may result in abuse

and oppression on the part of the police or military. An illustration is when
a group of persons are merely engaged in a drinking spree. Yet the military
or the police may consider the act as an act of terrorism and immediately
arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression
on their part. It must be remembered that an act can only be considered a
crime if there is a law defining the same as such and imposing the
corresponding penalty thereon.

So far, the word terrorism appears only once in our criminal laws,
i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President Marcos
during the Martial Law regime. This decree is entitled Codifying The
Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations. The word terrorism is
mentioned in the following provision: That one who conspires with any
other person for the purpose of overthrowing the Government of the
Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
Communist Party of the Philippines) enacted by President Corazon Aquino
on May 5, 1985. These two (2) laws, however, do not define acts of
terrorism. Since there is no law defining acts of terrorism, it is President
Arroyo alone, under G.O. No. 5, who has the discretion to determine what
acts constitute terrorism. Her judgment on this aspect is absolute, without
restrictions. Consequently, there can be indiscriminate arrest without
warrants, breaking into offices and residences, taking over the media
enterprises, prohibition and dispersal of all assemblies and gatherings
unfriendly to the administration. All these can be effected in the name of
G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the
Constitution. Thus, this Court declares that the acts of terrorism portion of
G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military

or police to commit acts beyond what are necessary and appropriate to
suppress and prevent lawless violence, the limitation of their authority in
pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

 The Constitution provides that the right of the people to be secured in
their persons, houses, papers and effects against unreasonable search and
seizure of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized. [142] The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized
by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that between person and
police must stand the protective authority of a magistrate clothed with power
to issue or refuse to issue search warrants or warrants of arrest.[143]

In the Brief Account[144] submitted by petitioner David, certain facts

are established: first, he was arrested without warrant; second, the PNP
operatives arrested him on the basis of PP 1017; third, he was brought at
Camp Karingal, Quezon City where he was fingerprinted, photographed
and booked like a criminal suspect; fourth, he was treated brusquely by
policemen who held his head and tried to push him inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa
Bilang No. 880[145]and Inciting to Sedition; sixth, he was detained
for seven (7) hours; and seventh, he was eventually released for
insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure

provides:
Sec. 5. Arrest without warrant; when lawful. - A peace
officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense.
 (b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner

David's warrantless arrest. During the inquest for the charges of inciting to
sedition andviolation of BP
880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the
invective Oust Gloria Now and their erroneous assumption that petitioner
David was the leader of the rally.[146] Consequently, the Inquest Prosecutor
ordered his immediate release on the ground of insufficiency of
evidence. He noted that petitioner David was not wearing the subject t-shirt
and even if he was wearing it, such fact is insufficient to charge him with
inciting to sedition. Further, he also stated that there is insufficient
evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally.[147]

But what made it doubly worse for petitioners David et al. is that not
only was their right against warrantless arrest violated, but also their right to
peaceably assemble.

Section 4 of Article III guarantees:

 No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.

Assembly means a right on the part of the citizens to meet peaceably

for consultation in respect to public affairs. It is a necessary consequence of
our republican institution and complements the right of speech. As in the
case of freedom of expression, this right is not to be limited, much less
denied, except on a showing of a clear and present danger of a substantive
evil that Congress has a right to prevent. In other words, like other rights
embraced in the freedom of expression, the right to assemble is not subject
to previous restraint or censorship. It may not be conditioned upon the prior
issuance of a permit or authorization from the government authorities except,
of course, if the assembly is intended to be held in a public place, a permit
for the use of such place, and not for the assembly itself, may be validly
required.

The ringing truth here is that petitioner David, et al. were arrested
while they were exercising their right to peaceful assembly. They were not
committing any crime, neither was there a showing of a clear and present
danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to seditionand violation of BP
880 were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers' conduct. In De Jonge v.
Oregon,[148] it was held that peaceable assembly cannot be made a crime,
thus:
Peaceable assembly for lawful discussion cannot be made a crime.
The holding of meetings for peaceable political action cannot be
proscribed. Those who assist in the conduct of such meetings cannot be
branded as criminals on that score. The question, if the rights of free
speech and peaceful assembly are not to be preserved, is not as to the
auspices under which the meeting was held but as to its purpose; not as to
the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the
persons assembling have committed crimes elsewhere, if they have formed
 or are engaged in a conspiracy against the public peace and order, they
may be prosecuted for their conspiracy or other violations of valid
laws. But it is a different matter when the State, instead of prosecuting
them for such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as the basis for a criminal
charge.

On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis of
Malacaang's directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all
permits to rally is a blatant disregard of the principle that freedom of
assembly is not to be limited, much less denied, except on a showing of
a clear and present danger of a substantive evil that the State has a right
to prevent. [149] Tolerance is the rule and limitation is the exception. Only
upon a showing that an assembly presents a clear and present danger that the
State may deny the citizens' right to exercise it. Indeed, respondents failed
to show or convince the Court that the rallyists committed acts amounting to
lawless violence, invasion or rebellion. With the blanket revocation of
permits, the distinction between protected and unprotected assemblies was
eliminated.

Moreover, under BP 880, the authority to regulate assemblies and

rallies is lodged with the local government units. They have the power to
issue permits and to revoke such permits after due notice and hearing on
the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their
permits.[150] The first time they learned of it was at the time of the
dispersal. Such absence of notice is a fatal defect. When a person's right is
restricted by government action, it behooves a democratic government to see
to it that the restriction is fair, reasonable, and according to procedure.
 G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of
freedom of speech i.e., the freedom of the press. Petitioners' narration of
facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribune's offices were searched without
warrant; second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o' clock in the
morning of February 25, 2006; fourth, the search was conducted in the
absence of any official of theDaily Tribune except the security guard of the
building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.

Thereafter, a wave of warning came from government officials.

Presidential Chief of Staff Michael Defensor was quoted as saying that such
raid was meant to show a strong presence,' to tell media outlets not to
connive or do anything that would help the rebels in bringing down this
government. Director General Lomibao further stated that if they do not
follow the standards and the standards are if they would contribute to
instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 we will recommend
a takeover.' National Telecommunications Commissioner Ronald Solis
urged television and radio networks to cooperate with the government for
the duration of the state of national emergency. He warned that his
agency will not hesitate to recommend the closure of any broadcast
outfit that violates rules set out for media coverage during times when
the national security is threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal

Procedure lays down the steps in the conduct of search and seizure. Section
4 requires that a search warrant be issued upon probable cause in
connection with one specific offence to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce. Section 8 mandates that the search of a house,
room, or any other premise be made in the presence of the lawful
occupantthereof or any member of his family or in the absence of the latter,
in the presence of two (2) witnesses of sufficient age and discretion residing
in the same locality. And Section 9 states that the warrant must direct that
it be served in the daytime, unless the property is on the person or in the
place ordered to be searched, in which case a direction may be inserted that
it be served at any time of the day or night. All these rules were violated by
the CIDG operatives.

Not only that, the search violated petitioners' freedom of the

press. The best gauge of a free and democratic society rests in the degree of
freedom enjoyed by its media. In the Burgos v. Chief of Staff[152] this Court
held that --

As heretofore stated, the premises searched were the business and

printing offices of the "Metropolitan Mail" and the "We Forum
newspapers. As a consequence of the search and seizure, these premises
were padlocked and sealed, with the further result that the printing
and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or

censorship abhorrent to the freedom of the press guaranteed under
the fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even
militant press is essential for the political enlightenment and growth
of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed
like the Metropolitan Mail and We Forum newspapers in the above case,
yet it cannot be denied that the CIDG operatives exceeded their enforcement
duties. The search and seizure of materials for publication, the stationing of
policemen in the vicinity of the The Daily Tribune offices, and the arrogant
warning of government officials to media, are plain censorship. It is that
officious functionary of the repressive government who tells the citizen that
he may speak only if allowed to do so, and no more and no less than what he
is permitted to say on pain of punishment should he be so rash as to
disobey.[153] Undoubtedly, the The Daily Tribune was subjected to these
arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it
involves the most defiant of our citizens. Freedom to comment on public
affairs is essential to the vitality of a representative democracy. It is the duty
of the courts to be watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon. The motto should always
be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted

that the search of the Tribune's offices and the seizure of its materials for
publication and other papers are illegal; and that the same are inadmissible
for any purpose, thus:
JUSTICE CALLEJO:

You made quite a mouthful of admission when you

said that the policemen, when inspected the Tribune
for the purpose of gathering evidence and you
admitted that the policemen were able to get the
clippings. Is that not in admission of the
admissibility of these clippings that were taken from
the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were

illegally seized, I think and I know, Your Honor,
and these are inadmissible for any purpose.[155]

xxx xxx xxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the

Daily Tribune; all you have to do is to get those past
issues. So why do you have to go there at 1 o'clock
in the morning and without any search
warrant? Did they become suddenly part of the
evidence of rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:
 Well, it was the police that did that, Your
Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is

illegal, it is not based on any law, and it is not based
on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor,

because there is nothing in 1017 which says that the
police could go and inspect and gather clippings
from Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the

facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I

said, I don't know if it is premature to say this, we
do not condone this. If the people who have been
injured by this would want to sue them, they can
sue and there are remedies for this.[156]

Likewise, the warrantless arrests and seizures executed by the police

were, according to the Solicitor General, illegal and cannot be condoned,
thus:
 CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not

contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don't know whether this will clarify. The acts, the

supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be condoned. You
cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police
officers, that is their responsibility.[157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and should result in no constitutional or
statutory breaches if applied according to their letter.

The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or
rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the
military and the police committed acts which violate the citizens' rights
under the Constitution, this Court has to declare such acts unconstitutional
and illegal.

In this connection, Chief Justice Artemio V. Panganiban's concurring

opinion, attached hereto, is considered an integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 a

supervening event would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee
that PP 1017, or one similar to it, may not again be issued. Already, there
have been media reports on April 30, 2006 that allegedly PP 1017 would be
reimposed if the May 1 rallies become unruly and violent. Consequently,
the transcendental issues raised by the parties should not be evaded; they
must now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as

it constitutes a call by the President for the AFP to prevent or
suppress lawless violence. The proclamation is sustained by Section 18,
Article VII of the Constitution and the relevant jurisprudence discussed
earlier. However, PP 1017's extraneous provisions giving the President
express or implied power (1) to issue decrees; (2) to direct the AFP to
enforce obedience to all laws even those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose standards on
media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17,
Article XII of the Constitution, the President, in the absence of a legislation,
cannot take over privately-owned public utility and private business affected
with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order
issued by the President acting as Commander-in-Chief addressed to
subalterns in the AFP to carry out the provisions of PP 1017. Significantly,
it also provides a valid standard that the military and the police should
take only the necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence. But the words acts of
terrorism found in G.O. No. 5 have not been legally defined and made
punishable by Congress and should thus be deemed deleted from the said
G.O. While terrorism has been denounced generally in media, no law has
been enacted to guide the military, and eventually the courts, to determine
the limits of the AFP's authority in carrying out this portion of G.O. No. 5.
 On the basis of the relevant and uncontested facts narrated earlier, it is
also pristine clear that (1) the warrantless arrest of petitioners Randolf S.
David and Ronald Llamas; (2) the dispersal of the rallies and warrantless
arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical seizures of
some articles for publication and other materials, are not authorized by the
Constitution, the law and jurisprudence. Not even by the valid provisions of
PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any
civil, criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their day in
court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil,
criminal or administrative liabilities.

It is well to remember that military power is a means to an end

and substantive civil rights are ends in themselves. How to give the
military the power it needs to protect the Republic without
unnecessarily trampling individual rights is one of the eternal balancing
tasks of a democratic state. During emergency, governmental action may
vary in breadth and intensity from normal times, yet they should not be
arbitrary as to unduly restrain our people's liberty.

Perhaps, the vital lesson that we must learn from the theorists who
studied the various competing political philosophies is that, it is possible to
grant government the authority to cope with crises without surrendering the
two vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the
governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that
PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President
Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to
enforce laws not related to lawless violence, as well as decrees promulgated
by the President, are declared UNCONSTITUTIONAL. In addition, the
provision in PP 1017 declaring national emergency under Section
17, Article VII of the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take over privately-owned
public utility or business affected with public interest without prior
legislation.

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

which the AFP and the PNP should implement PP 1017, i.e. whatever is
necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence. Considering that acts of terrorism have
not yet been defined and made punishable by the Legislature, such portion of
G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the

dispersal and warrantless arrest of the KMU and NAFLU-KMU members
during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior
restraint on the press, as well as the warrantless search of the Tribune offices
and whimsical seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.

No costs.
 SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

(On leave)
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Associate Justice

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Associate Justice
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby

certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court.

ARTEMIO V. PANGANIBAN
Chief Justice

*
On leave.
[1]
Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark Lecturer, Volume XIX,
1971, p. 29.
[2]
Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.
[3]
Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480 B.C., who
propounded universal impermanence and that all things, notably opposites are interrelated.
[4] Respondents' Comment dated March 6, 2006.
[5]
Ibid.
[6]
Ibid.
[7]
Minutes of the Intelligence Report and Security Group, Philippine Army, Annex I of Respondents'
Consolidated Comment.
[8]
Respondents' Consolidated Comment.
[9] Ibid.
[10]
Ibid.
[11]
Petition in G.R. No. 171396, p. 5.
[12] Police action in various parts of Metro Manila and the reactions of the huge crowds being dispersed
were broadcast as breaking news by the major television stations of this country.
[13]
Petition in G.R. No. 171400, p. 11.
[14]
Ibid.
[15]
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.
[16]
No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.
[17]
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
[18]
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the Government for redress of grievances.
[19]
(1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately,
shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for
a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress,
such powers shall cease upon the next adjournment thereof.
[20]
In times of national emergency, when the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest.
[21]
1 Cranch 137 [1803].
[22]
Howard L. MacBain, Some Aspects of Judicial Review, Bacon Lectures on the Constitution of the
United States (Boston: Boston University Heffernan Press, 1939), pp. 376-77.
[23]
The Court has no self-starting capacity and must await the action of some litigant so aggrieved as to
have a justiciable case. (Shapiro and Tresolini, American Constitutional Law, Sixth Edition, 1983, p.
79).
[24]
Cruz, Philippine Political Law, 2002 Ed., p. 259.
[25]
Ibid.
[26]
Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.
[27]
Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425
SCRA 129; Vda. De Dabao v. Court of Appeals, G.R. No. 1165, March 23, 2004, 426 SCRA 91;
and Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA 590.
[28]
Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421
SCRA 21; Vda. De Dabao v. Court of Appeals, supra.
[29]
Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.
[30]
Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S. 425.
[31]
Province of Batangas v. Romulo, supra.
[32]
Lacson v. Perez, supra.
[33]
Province of Batangas v. Romulo, supra.
[34] Albaa v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v.
Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive
Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
[35]
Salonga v. Cruz Pao, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
[36]
G.R. No. 159085, February 3, 2004, 421 SCRA 656.
[37]
Black's Law Dictionary, 6th Ed. 1991, p. 941.
[38]
Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
[39]
275 Ky 91, 120 SW2d 765 (1938).
[40]
19 Wend. 56 (1837).
[41]
232 NC 48, 59 SE2d 359 (1950).
[42]
302 U.S. 633.
[43]
318 U.S. 446.
[44]
65 Phil. 56 (1937).
[45]
G.R. No. 117, November 7, 1945 (Unreported).
[46]
G.R. No. 2947, January 11, 1959 (Unreported).
[47]
110 Phil. 331 (1960).
[48]
77 Phil. 1012 (1947).
[49]
84 Phil. 368 (1949) The Court held: Above all, the transcendental importance to the public of these
cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.
[50]
L-No. 40004, January 31, 1975, 62 SCRA 275.
[51]
Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that
where the question is one of public duty and the enforcement of a public right, the people are the real
party in interest, and it is sufficient that the petitioner is a citizen interested in the execution of the law;
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the
Court held that in cases involving an assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that the petitioner is a citizen and part of the general public which possesses
the right.
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30,
1988, 163 SCRA 371, where the Court held that objections to taxpayers' lack of personality to sue may
be disregarded in determining the validity of the VAT law;
Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while
no expenditure of public funds was involved under the questioned contract, nonetheless considering its
important role in the economic development of the country and the magnitude of the financial
consideration involved, public interest was definitely involved and this clothed petitioner with the legal
personality under the disclosure provision of the Constitution to question it.
Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No.
78742, July 14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are strictly speaking,
not covered by the definition of a proper party, nonetheless, it has the discretion to waive the
requirement, in determining the validity of the implementation of the CARP.
Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court
held that it enjoys the open discretion to entertain taxpayer's suit or not and that a member of the
Senate has the requisite personality to bring a suit where a constitutional issue is raised.
 Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held
that petitioner as a taxpayer, has the personality to file the instant petition, as the issues involved,
pertains to illegal expenditure of public money;
Osmea v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA
750, where the Court held that where serious constitutional questions are involved, the
transcendental importance to the public of the cases involved demands that they be settled promptly
and definitely, brushing aside technicalities of procedures;
De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the
importance of the issues involved concerning as it does the political exercise of qualified voters
affected by the apportionment, necessitates the brushing aside of the procedural requirement of locus
standi.
[52]
G.R. No. 133250, July 9, 2002, 384 SCRA 152.
[53]
G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449.
[54]
G.R. No. 151445, April 11, 2002, 380 SCRA 739.
[55]
Supra.
[56]
G.R. No. 118910, November 16, 1995, 250 SCRA 130.
[57]
G.R. No. 132922, April 21, 1998, 289 SCRA 337.
[58]
G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.
[59]
G.R. No. 159085, February 3, 2004, 421 SCRA 656.
[60]
235 SCRA 506 (1994).
[61]
Supra.
[62]
Supra.
[63]
197 SCRA 52, 60 (1991).
[64]
Supra.
[65]
See NAACP v. Alabama, 357 U.S. 449 (1958).
[66]
G.R. No. 141284, August 15, 2000, 338 SCRA 81.
[67]
From the deliberations of the Constitutional Commission, the intent of the framers is clear that the
immunity of the President from suit is concurrent only with his tenure and not his term. (De
Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).
[68] Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public officers
and employees must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.
[69]
Ibid., Sec. 2.
[70]
No. 2908, September 30, 2005, 471 SCRA 87.
[71]
91 Phil. 882 (1952).
[72]
No. L-33964, December 11, 1971, 42 SCRA 448.
[73]
No. L-35546, September 17, 1974, 59 SCRA 183.
[74]
No. L-61388, April 20, 1983, 121 SCRA 472.
[75]
Taada v. Cuenco, 103 Phil. 1051 (1957).
[76]
Lansang v. Garcia, supra, pp. 473 and 481.
[77]
Supra.
[78] Five Justices Antonio, Makasiar, Esguerra, Fernandez, and Aquino took the position that the
proclamation of martial law and the arrest and detention orders accompanying the proclamation posed a
political question beyond the jurisdiction of the Court. Justice Antonio, in a separate opinion concurred in
by Makasiar, Fernandez, and Aquino, argued that the Constitution had deliberately set up a strong
presidency and had concentrated powers in times of emergency in the hands of the President and had given
him broad authority and discretion which the Court was bound to respect. He made reference to the decision
in Lansang v. Garcia but read it as in effect upholding the political question position. Fernandez, in a
separate opinion, also arguedLansang, even understood as giving a narrow scope of review authority to the
Court, affirmed the impossible task of checking' the action taken by the President. Hence, he advocated a
return to Barcelon v. Baker. Similarly, Esguerra advocated the abandonment of Lansang and a return
to Barcelon. And, although Justices Castro, Fernando, Muoz- Palma, and, implicitly, Teehankee, lined up
on the side of justiciability as enunciated in Lansang, x x x Barredo, however, wanted to have the best of
both worlds and opted for the view that political questions are not per se beyond the Court's jurisdiction ...
but that as a matter of policy implicit in the Constitution itself the Court should abstain from interfering with
the Executive's Proclamation. (Bernas,The 1987 Constitution of the Republic of the Philippines: A
Commentary, 1996 Edition, p. 794.)
[79]
See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, supra.
[80]
Supra.
[81]
Cruz, Philippine Political Law, 2002 Ed., p. 247.
[82]
Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.
[83]
Supra, 481-482.
[84]
Smith and Cotter, Powers of the President during Crises, 1972, p. 6.
[85]
Ibid.
[86]
The Social Contract (New York: Dutton, 1950), pp. 123-124.
[87]
Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.
[88]
Representative Government, New York, Dutton, 1950, pp. 274, 277-78.
[89]
The Discourses, Bk. 1, Ch. XXXIV.
[90] Smith and Cotter, Powers of the President During Crises, 1972. p. 8.
[91]
Ibid.
[92]
See The Problem of Constitutional Dictatorship, p. 328.
[93]
Ibid., p. 353.
[94]
Ibid., pp. 338-341.
[95]
Smith and Cotter, Powers of the President During Crises, 1972, p. 9.
[96] Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & Co., 1949, p. 580.
[97]
Ibid, pp. 574-584.
[98]
Smith and Cotter, Powers of the President During Crises, 1972, p. 10.
[99]
Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press, 1948, pp. 298-306.
[100]
Smith and Cotter, Powers of the President During Crises, 1972, p. 11.
[101]
Smith and Cotter, Powers of the President During Crises, 1972, p. 12.
[102] Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952),
See Concurring Opinion J. Jackson.
[103]
See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148560,
November 19, 2001, 369 SCRA 393.
[104] 481 U.S. 739, 95 L. Ed. 2d 697 (1987).
[105]
Supra.
[106]
See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra.
[107]
Broadrick v. Oklahoma, 413 U.S. 601 (1973).
[108]
Ibid.
[109]
401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524
(1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989).
[110] Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693, July 31, 1967,
20 SCRA 849 (1967).
[111]
G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustained President
Arroyo's declaration of a state of rebellion pursuant to her calling-out power.

[112]
Supra.
[113]
Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929, quoted in Aquino v.
Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J., concurring)].
[114]
Retired Associate Justice of the Supreme Court.
[115]
Section 1, Article VII of the Constitution.
[116]
Section 5, Article VII of the Constitution.
[117]
Section 18, Article VII of the Constitution.
[118]
Section 6, Article XVI of the Constitution.
[119]
See Republic Act No. 6975.
[120]
Ironically, even the 7th Whereas Clause of PP 1017 which states that Article 2, Section 4 of our
Constitution makes the defense and preservation of the democratic institutions and the State the
primary duty of Government replicates more closely Section 2, Article 2 of the 1973 Constitution
than Section 4, Article 2 of the 1987 Constitution which provides that, [t[he prime duty of the
Government is to serve and protect the people.
[121]
Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115
SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission on Election, supra.
[122] Section 17, Article XIV of the 1973 Constitution reads: In times of national emergency when the
public interest so requires, the State may temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest.
[123]
Antieau, Constitutional Construction, 1982, p.21.
[124]
Cruz, Philippine Political Law, 1998, p. 94.
[125]
343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).
[126]
Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-257.
[127]
Smith and Cotter, Powers of the President During Crises, 1972, p. 14
[128]
The Federal Emergency Relief Act of 1933 opened with a declaration that the economic depression created a
serious emergency, due to wide-spread unemployment and the inadequacy of State and local relief funds, . . .
making it imperative that the Federal Government cooperate more effectively with the several States and
Territories and the District of Columbia in furnishing relief to their needy and distressed people. President
Roosevelt in declaring a bank holiday a few days after taking office in 1933 proclaimed that heavy and
unwarranted withdrawals of gold and currency from banking institutions for the purpose of hoarding; ...
resulting in sever drains on the Nation's stocks of gold have created a national emergency, requiring his
action. Enacted within months after Japan's attack on Pearl Harbor, the Emergency Price Control Act of 1942 was
 designed to prevent economic dislocations from endangering the national defense and security and the effective
prosecution of the war. (Smith and Cotter, Powers of the President During Crises, 1972, p.18)
[129]
The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the emergency and necessity for
relief in stricken agricultural areas and in another section referred to the present drought emergency. [129] The
India Emergency Food Aid Act of 1951provided for emergency shipments of food to India to meet famine
conditions then ravaging the great Asian sub-continent. The Communication Act of 1934 and its 1951 amendment
grant the President certain powers in time of public peril or disaster. The other statutes provide for existing or
anticipated emergencies attributable to earthquake, flood, tornado, cyclone, hurricane, conflagration an
landslides.[129] There is also a Joint Resolution of April 1937. It made funds available for the control of incipient or
emergency outbreaks of insect pests or plant diseases, including grasshoppers, Mormon crickets, and chinch bugs.
(66 Stat 315, July 1, 1952, Sec. 2 [a]) Supra.
[130]
National Security may be cataloged under the heads of (1) Neutrality, (2) Defense, (3) Civil Defense,
and (4) Hostilities or War. (p. 22) The Federal Civil Defense Act of 1950 contemplated an attack or series of
attacks by an enemy of the United States which conceivably would cause substantial damage or injury to civilian
property or persons in the United States by any one of several means; sabotage, the use of bombs, shellfire, or
atomic, radiological, chemical, bacteriological means or other weapons or processes. Such an occurrence would
cause a National Emergency for Civil Defense Purposes, or a state of civil defense emergency, during the term
which the Civil Defense Administrator would have recourse to extraordinary powers outlined in the Act. The New
York-New Jersey Civil Defense Compactsupplies an illustration in this context for emergency cooperation.
Emergency as used in this compact shall mean and include invasion, or other hostile
action, disaster, insurrection or imminent danger thereof. ( Id., p.15-16)
[131]
Cruz, Philippine Political Law, 1998, p. 95.
[132]
Record of the Constitutional Commission, Vol. III, pp. 266-267.
[133]
Record of the Constitutional Convention, pp. 648-649.
[134] 84 Phil. 368 (1949).
[135]
Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
[136]
Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261, cert den 280
US 610, 74 L ed 653, 50 S Ct 158.
[137]
Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY 309, 105 NE
548.
[138] Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.
[139]
De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115.
[140]
Ibid.
[141]
In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series,
Hans Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and President of the
International Progress Organization, speaking on The United Nations, The International Rule of Law
and Terrorism cited in the Dissenting Opinion of Justice Kapunan in Lim v. Executive Secretary,
G.R. No. 151445, April 11, 2002, 380 SCRA 739.
[142]
Section 2, Article III of the 1987 Constitution.
[143]
Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer-Primer, p. 51.
[144]
Annex A of the Memorandum in G.R. No. 171396, pp. 271-273.
[145]
An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and Petition
the Government for Other Purposes.

[146]
Annex A of the Memorandum in G.R. No. 171396, pp. 271-273.
[147]
Ibid.
[148]
299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.
[149]
Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.
[150] Section 5. Application requirements - All applications for a permit shall comply with the following
guidelines:
x x x x x x

(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.

[151]
Petition in G.R. No. 171400, p. 11.
[152]
No. L-64161, December 26, 1984, 133 SCRA 816.
[153]
Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos. 102653,
102925 & 102983, March 5, 1992, 207 SCRA 1.
[154]
Boyd v. United States, 116 U.S. 616 (1886).
[155] Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.
[156]
Ibid., pp. 432-433.
[157]
Ibid, pp. 507-508.
[158]
Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.
 EN BANC

March 8, 2016

G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.

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

G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

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

DECISION

PEREZ, J.:

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

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn

infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3
September 1968. Parental care and custody over petitioner was passed on by Edgardo to his
relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6 September 1968,
Emiliano reported and registered petitioner as a foundling with the Office of the Civil Registrar
of Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate of Live Birth, the
petitioner was given the name "Mary Grace Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a.
Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her
adoption with the Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial
court granted their petition and ordered that petitioner's name be changed from "Mary Grace
Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although necessary
notations were made by OCR-Iloilo on petitioner's foundling certificate reflecting the court
decreed adoption,2 the petitioner's adoptive mother discovered only sometime in the second
half of 2005 that the lawyer who handled petitioner's adoption failed to secure from the
OCR-Iloilo a new Certificate of Live Birth indicating petitioner's new name and the name of her
adoptive parents. 3 Without delay, petitioner's mother executed an affidavit attesting to the
lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a
new Certificate of Live Birth in the name of Mary Grace Natividad Sonora Poe.4

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

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

Initially, the petitioner enrolled and pursued a degree in Development Studies at the
University of the Philippines8but she opted to continue her studies abroad and left for the
United States of America (U.S.) in 1988. Petitioner graduated in 1991 from Boston College in
Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts degree in Political
Studies.9

On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a

citizen of both the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan
City. 10 Desirous of being with her husband who was then based in the U.S., the couple flew
back to the U.S. two days after the wedding ceremony or on 29 July 1991. 11

While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April
1992.12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both
born in the Philippines on 10 July 1998 and 5 June 2004, respectively. 13

On 18 October 2001, petitioner became a naturalized American citizen. 14

She obtained U.S.
Passport No. 017037793 on 19 December 2001. 15

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

After a few months, specifically on 13 December 2004, petitioner rushed back to the
Philippines upon learning of her father's deteriorating medical condition. 17 Her father slipped
into a coma and eventually expired. The petitioner stayed in the country until 3 February 2005
to take care of her father's funeral arrangements as well as to assist in the settlement of his
estate.18
According to the petitioner, the untimely demise of her father was a severe blow to her entire
family. In her earnest desire to be with her grieving mother, the petitioner and her husband
decided to move and reside permanently in the Philippines sometime in the first quarter of
2005.19 The couple began preparing for their resettlement including notification of their
children's schools that they will be transferring to Philippine schools for the next
semester;20 coordination with property movers for the relocation of their household goods,
furniture and cars from the U.S. to the Philippines;21 and inquiry with Philippine authorities as
to the proper procedure to be followed in bringing their pet dog into the country.22 As early as
2004, the petitioner already quit her job in the U.S.23

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

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

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of
some of the family's remaining household belongings.29 She travelled back to the Philippines
on 11 March 2006.30

In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the
family's change and abandonment of their address in the U.S.31 The family home was
eventually sold on 27 April 2006.32 Petitioner's husband resigned from his job in the U.S. in
April 2006, arrived in the country on 4 May 2006 and started working for a major Philippine
company in July 2006.33

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

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

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August
2006.40 She also secured from the DFA a new Philippine Passport bearing the No.
XX4731999.41 This passport was renewed on 18 March 2014 and she was issued Philippine
Passport No. EC0588861 by the DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of
the Movie and Television Review and Classification Board (MTRCB).43 Before assuming her
post, petitioner executed an "Affidavit of Renunciation of Allegiance to the United States of
America and Renunciation of American Citizenship" before a notary public in Pasig City on 20
October 2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No.
9225.45 The following day, 21 October 2010 petitioner submitted the said affidavit to the
BI46 and took her oath of office as Chairperson of the MTRCB.47 From then on, petitioner
stopped using her American passport.48

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

On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of
Nationality of the United States" effective 21 October 2010.52

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

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

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

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

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

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

On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a

natural-born Filipino on account of the fact that she was a foundling.62 Elamparo claimed that
international law does not confer natural-born status and Filipino citizenship on
foundlings.63 Following this line of reasoning, petitioner is not qualified to apply for
reacquisition of Filipino citizenship under R.A. No. 9225 for she is not a natural-born Filipino
citizen to begin with.64 Even assuming arguendo that petitioner was a natural-born Filipino,
she is deemed to have lost that status when she became a naturalized American
citizen.65 According to Elamparo, natural-born citizenship must be continuous from birth.66

On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the
sworn declaration she made in her 2012 COC for Senator wherein she indicated that she had
resided in the country for only six ( 6) years and six ( 6) months as of May 2013 Elections.
Elamparo likewise insisted that assuming arguendo that petitioner is qualified to regain her
natural-born status under R.A. No. 9225, she still fell short of the ten-year residency
requirement of the Constitution as her residence could only be counted at the earliest from
July 2006, when she reacquired Philippine citizenship under the said Act. Also on the
assumption that petitioner is qualified to reacquire lost Philippine Citizenship, Elamparo is of
the belief that she failed to reestablish her domicile in the Philippines.67

Petitioner seasonably filed her Answer wherein she countered that:

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

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

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

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

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

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

d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC
for President in the May 9, 2016 Elections and that the same is in full force and effect and has
not been withdrawn or recanted;

e. the burden was on Elamparo in proving that she did not possess natural-born status;

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

g. she could reestablish residence even before she reacquired natural-born citizenship under
R.A. No. 9225;
h. statement regarding the period of residence in her 2012 COC for Senator was an honest
mistake, not binding and should give way to evidence on her true date of reacquisition of
domicile;

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

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

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

WHEREFORE, in view of all the foregoing considerations, the instant Petition

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

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

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

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

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of

Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the
requisite residency and citizenship to qualify her for the Presidency.72

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

Neither can petitioner seek refuge under international conventions or treaties to support her
claim that foundlings have a nationality.76 According to Tatad, international conventions and
treaties are not self-executory and that local legislations are necessary in order to give effect
to treaty obligations assumed by the Philippines.77 He also stressed that there is no standard
state practice that automatically confers natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to
reacquire Philippine citizenship under R.A. No. 9225 because it only applies to former
natural-born citizens and petitioner was not as she was a foundling.79

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

In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA
No. 15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow
upon her the status of a natural-born citizen.83 He advanced the view that former natural-born
citizens who are repatriated under the said Act reacquires only their Philippine citizenship and
will not revert to their original status as natural-born citizens.84

He further argued that petitioner's own admission in her COC for Senator that she had only
been a resident of the Philippines for at least six (6) years and six (6) months prior to the 13
May 2013 Elections operates against her. Valdez rejected petitioner's claim that she could
have validly reestablished her domicile in the Philippines prior to her reacquisition of
Philippine citizenship. In effect, his position was that petitioner did not meet the ten (10) year
residency requirement for President.

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

In her defense, petitioner raised the following arguments:

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

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

Third, the burden to prove that she is not a natural-born Filipino citizen is on the
respondents.93 Otherwise stated, she has a presumption in her favor that she is a natural-born
citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to a nationality and
are presumed to be citizens of the country where they are found.94 Consequently, the
petitioner is considered as a natural-born citizen of the Philippines.95

Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under
R.A. No. 9225 or the right to reacquire her natural-born status.96 Moreover, the official acts of
the Philippine Government enjoy the presumption of regularity, to wit: the issuance of the 18
July 2006 Order of the BI declaring her as natural-born citizen, her appointment as MTRCB
Chair and the issuance of the decree of adoption of San Juan RTC.97 She believed that all
these acts reinforced her position that she is a natural-born citizen of the Philippines.98

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

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

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

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

WHEREFORE, premises considered, the Commission RESOLVED, as it

hereby RESOLVES, toGRANT the Petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA
POE-LLAMANZARES for the elective position of President of the Republic of
the Philippines in connection with the 9 May 2016 Synchronized Local and
National Elections.

Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First
Division's Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution
denying petitioner's motion for reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions
for certiorari with urgent prayer for the issuance of an ex parte temporary
restraining order/status quo ante order and/or writ of preliminary injunction. On 28 December
2015, temporary restraining orders were issued by the Court enjoining the COMELEC and its
representatives from implementing the assailed COMELEC Resolutions until further orders
from the Court. The Court also ordered the consolidation of the two petitions filed by petitioner
in its Resolution of 12 January 2016. Thereafter, oral arguments were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL
and SET ASIDE the:

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

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

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

December 2015 Resolution of the Second Division.

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

December 2015 Resolution of the First Division.

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

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

We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX,
C, Section 2:

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

and functions:

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

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

Decisions, final orders, or rulings of the Commission on election contests

involving elective municipal and barangay offices shall be final, executory, and
not appealable.
 (3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
appointment of election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement

agencies and instrumentalities of the Government, including the Armed
Forces of the Philippines, for the exclusive purpose of ensuring free, orderly,
honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or

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

Financial contributions from foreign governments and their agencies to

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

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

(7) Recommend to the Congress effective measures to minimize election

spending, including limitation of places where propaganda materials shall be
posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.

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

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

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

The Senate and the House of Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns, and qualifications of
their respective Members. Each Electoral Tribunal shall be composed of nine Members, three
of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and
the remaining six shall be Members of the Senate or the House of Representatives, as the
case may be, who shall be chosen on the basis of proportional representation from the
political parties and the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:

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

The tribunals which have jurisdiction over the question of the qualifications of the President,
the Vice-President, Senators and the Members of the House of Representatives was made
clear by the Constitution. There is no such provision for candidates for these positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on

Elections,104 which was affirmatively cited in the En Banc decision in Fermin v. COMELEC105 is
our guide. The citation in Fermin reads:

Apparently realizing the lack of an authorized proceeding for declaring the

ineligibility of candidates, the COMELEC amended its rules on February 15,
1993 so as to provide in Rule 25 1, the following:

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

The lack of provision for declaring the ineligibility of candidates, however,

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

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility

into grounds for disqualification is contrary to the evident intention of the law.
For not only in their grounds but also in their consequences are proceedings
for "disqualification" different from those for a declaration of "ineligibility."
"Disqualification" proceedings, as already stated, are based on grounds
specified in 12 and 68 of the Omnibus Election Code and in 40 of the
Local Government Code and are for the purpose of barring an individual
from becoming a candidate or from continuing as a candidate for public office.
In a word, their purpose is to eliminate a candidate from the race either from
the start or during its progress. "Ineligibility," on the other hand, refers to the
lack of the qualifications prescribed in the Constitution or the statutes
for holding public office and the purpose of the proceedings for declaration of
ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public

office does not imply that he is not disqualified from becoming a candidate or
continuing as a candidate for a public office and vice versa. We have this sort
of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the
 qualifications prescribed in 2 of the Law does not imply that he does not
suffer from any of [the] disqualifications provided in 4.

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

Three reasons may be cited to explain the absence of an authorized

proceeding for determiningbefore election the qualifications of a candidate.

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

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

Third is the policy underlying the prohibition against pre-proclamation cases in

elections for President, Vice President, Senators and members of the House
of Representatives. (R.A. No. 7166, 15) The purpose is to preserve the
prerogatives of the House of Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of the election,
returns andqualifications of members of Congress of the President and Vice
President, as the case may be.106

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated

in Fermin, led to the amendment through COMELEC Resolution No. 9523, on 25 September
2012 of its Rule 25. This, the 15 February1993 version of Rule 25, which states that:

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

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is

declared by final decision of a competent court, guilty of, or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to

or Cancel a Certificate of Candidacy or Petition to Declare a Candidate as a
Nuisance Candidate, or a combination thereof, shall be summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an

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

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

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

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

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

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

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

Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to

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

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

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she
was abandoned as an infant in a Roman Catholic Church in Iloilo City. She also has typical
1 wphi1

Filipino features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval
face.

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

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

Second. It is contrary to common sense because foreigners do not come to

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

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly

average, there were 1,766,046 children born in the Philippines to Filipino
parents, as opposed to 1,301 children in the Philippines of foreign parents.
Thus, for that sample period, the ratio of non-Filipino children to natural born
Filipino children is 1:1357. This means that the statistical probability that any
child born in the Philippines would be a natural born Filipino is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is
15,986 while the total number of Filipinos born in the Philippines is 15,558,278.
For this period, the ratio of non-Filipino children is 1:661. This means that the
statistical probability that any child born in the Philippines on that decade
would be a natural born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers

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

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

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

The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in constitutional construction is to
ascertain and thereafter assure the realization of the purpose of the framers and of the people
in the adoption of the Constitution. It may also be safely assumed that the people in ratifying
the Constitution were guided mainly by the explanation offered by the framers.115

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934
Constitutional Convention show that the framers intended foundlings to be covered by the
enumeration. The following exchange is recorded:

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

xxxx

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

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

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

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

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

Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by
one, or the children of unknown parentage."

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

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize
the child, is not unknown.
 President:
Does the gentleman accept the amendment or not?

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

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

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

Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in
between, that the constitution need [not] refer to them. By international law the
principle that children or people born in a country of unknown parents are
citizens in this nation is recognized, and it is not necessary to include a
provision on the subject exhaustively.116

Though the Rafols amendment was not carried out, it was not because there was any
objection to the notion that persons of "unknown parentage" are not citizens but only because
their number was not enough to merit specific mention. Such was the account,117 cited by
petitioner, of delegate and constitution law author Jose Aruego who said:

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

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

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

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally

correct. Framers of a constitution can constitutionalize rules based on
assumptions that are imperfect or even wrong. They can even overturn
 existing rules. This is basic. What matters here is that Montinola and Roxas
were able to convince their colleagues in the convention that there is no more
need to expressly declare foundlings as Filipinos because they are already
impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic

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

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

We find no such intent or language permitting discrimination against foundlings. On the

contrary, all three Constitutions guarantee the basic right to equal protection of the laws. All
exhort the State to render social justice. Of special consideration are several provisions in the
present charter: Article II, Section 11 which provides that the "State values the dignity of every
human person and guarantees full respect for human rights," Article XIII, Section 1 which
mandates Congress to "give highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social, economic, and political
inequalities x x x" and Article XV, Section 3 which requires the State to defend the "right of
children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their
development." Certainly, these provisions contradict an intent to discriminate against
foundlings on account of their unfortunate status.

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

In this connection, it should be noted that this is a proceedings in rem, which

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

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to
Govern the Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise
known as the "Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act
Establishing the Rules and Policies on the Adoption of Filipino Children and For Other
Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this Court's A.M. No.
02-6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children" and include
foundlings as among Filipino children who may be adopted.

It has been argued that the process to determine that the child is a foundling leading to the
issuance of a foundling certificate under these laws and the issuance of said certificate are
acts to acquire or perfect Philippine citizenship which make the foundling a naturalized
Filipino at best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens are those
who are citizens of the Philippines from birth without having to perform any act to acquire or
perfect their Philippine citizenship." In the first place, "having to perform an act" means that
the act must be personally done by the citizen. In this instance, the determination of foundling
status is done not by the child but by the authorities.121 Secondly, the object of the process is
the determination of the whereabouts of the parents, not the citizenship of the child. Lastly,
the process is certainly not analogous to naturalization proceedings to acquire Philippine
citizenship, or the election of such citizenship by one born of an alien father and a Filipino
mother under the 1935 Constitution, which is an act to perfect it.

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

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

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of
the generally accepted principles of international law and binding on the State.130 Article 15
thereof states:

1. Everyone has the right to a nationality.

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

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

Article 7

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

2. States Parties shall ensure the implementation of these rights in

accordance with their national law and their obligations under the relevant
international instruments in this field, in particular where the child would
otherwise be stateless.

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

Article 24

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

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

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

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

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

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

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

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

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of

proof to the contrary, be considered to have been born within the territory of
parents possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention
on the Reduction of Statelessness does not mean that their principles are not binding. While
the Philippines is not a party to the 1930 Hague Convention, it is a signatory to the Universal
Declaration on Human Rights, Article 15(1) ofwhich131effectively affirms Article 14 of the 1930
Hague Convention. Article 2 of the 1961 "United Nations Convention on the Reduction of
Statelessness" merely "gives effect" to Article 15(1) of the UDHR.132 In Razon v. Tagitis, 133 this
Court noted that the Philippines had not signed or ratified the "International Convention for the
Protection of All Persons from Enforced Disappearance." Yet, we ruled that the proscription
against enforced disappearances in the said convention was nonetheless binding as a
"generally accepted principle of international law." Razon v. Tagitis is likewise notable for
declaring the ban as a generally accepted principle of international law although the
convention had been ratified by only sixteen states and had not even come into force and
which needed the ratification of a minimum of twenty states. Additionally, as petitioner points
out, the Court was content with the practice of international and regional state organs,
regional state practice in Latin America, and State Practice in the United States.

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

Our approach in Razon and Mijares effectively takes into account the fact that "generally
accepted principles of international law" are based not only on international custom, but also
on "general principles of law recognized by civilized nations," as the phrase is understood in
Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights and which are
"basic to legal systems generally,"136 support the notion that the right against enforced
disappearances and the recognition of foreign judgments, were correctly considered as
"generally accepted principles of international law" under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America,
and Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of
those countries follow the jus sanguinisregime. Of the sixty, only thirty-three (33) are parties
to the 1961 Convention on Statelessness; twenty-six (26) are not signatories to the
Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments pointed out that
in 166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as citizens.
These circumstances, including the practice of jus sanguinis countries, show that it is a
generally accepted principle of international law to presume foundlings as having been born
of nationals of the country in which the foundling is found.

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

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

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

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

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

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of

repatriation statutes in general and of R.A. No. 9225 in particular.

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

Moreover, repatriation results in the recovery of the original nationality. This

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

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

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

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

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

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

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

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

On Residence

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

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

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

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

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

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

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

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

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

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

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

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

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

As explained by petitioner in her verified pleadings, she misunderstood the date required in
the 2013 COC as the period of residence as of the day she submitted that COC in 2012. She
said that she reckoned residency from April-May 2006 which was the period when the U.S.
house was sold and her husband returned to the Philippines. In that regard, she was advised
by her lawyers in 2015 that residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of residence before
13 May 2013) as inquiring about residence as of the time she submitted the COC, is bolstered
by the change which the COMELEC itself introduced in the 2015 COC which is now "period of
residence in the Philippines up to the day before May 09, 2016." The COMELEC would not
have revised the query if it did not acknowledge that the first version was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S.
house and the return of her husband is plausible given the evidence that she had returned a
year before. Such evidence, to repeat, would include her passport and the school records of
her children.

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

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

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

Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC,
petitioner recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias
Tiangco of the United Nationalist Alliance. Petitioner appears to have answered the issue
immediately, also in the press. Respondents have not disputed petitioner's evidence on this
point. From that time therefore when Rep. Tiangco discussed it in the media, the stated period
of residence in the 2012 COC and the circumstances that surrounded the statement were
already matters of public record and were not hidden.

Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo
warranto. Her Verified Answer, which was filed on 1 September 2015, admitted that she made
a mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as she
misunderstood the question and could have truthfully indicated a longer period. Her answer in
the SET case was a matter of public record. Therefore, when petitioner accomplished her
COC for President on 15 October 2015, she could not be said to have been attempting to hide
her erroneous statement in her 2012 COC for Senator which was expressly mentioned in her
Verified Answer.

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

Concededly, a candidate's disqualification to run for public office does not

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

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

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband

however stayed in the USA to finish pending projects and arrange the sale of
their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City.
[Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and Hanna
in Assumption College in Makati City in 2005. Anika was enrolled in Learning
Connection in San Juan in 2007, when she was already old enough to go to
school.
 In the second half of 2005, [petitioner] and her husband acquired Unit 7F of
One Wilson Place Condominium in San Juan. [Petitioner] and her family lived
in Unit 7F until the construction of their family home in Corinthian Hills was
completed.

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

In February 2006, [petitioner] travelled briefly to the US in order to supervise

the disposal of some of the family's remaining household
belongings. [Petitioner] returned to the Philippines on 11 March 2006.
1a\^/p hi1

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

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

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

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian
Hills, where they eventually built their family home.170

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall
under the exclusive ground of false representation, to consider no other date than that
mentioned by petitioner in her COC for Senator.

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

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

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

[T]he Certificate of Candidacy for President of the Republic of the Philippines

in the May 9, 2016 National and Local Elections filed by respondent Mary
Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; stating that:
 WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES
for the elective position of President of the Republic of the Philippines in
connection with the 9 May 2016 Synchronized Local and National Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015
Resolution of the Second Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it

hereby RESOLVES, to DENY the Verified Motion for Reconsideration of
SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES. The
Resolution dated 11 December 2015 of the Commission First Division is
AFFIRMED.

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

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

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

See Concurring Opinion

MARIA LOURDES P.A. SERENO
Chief Justice

See Dissenting Opinion Please see Concurring Opinion

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

Please see Separate Dissenting

Opinion See Dissenting opinion
TERESITA J. LEONARDO-DE ARTURO D. BRION
CASTRO Associate Justice
Associate Justice

I join J. Caguioa's Opinion

LUCAS P. BERSAMIN
DIOSDADO M. PERALTA
Associate Justice
Associate Justice

Pls. see Dissenting Opinion JOSE CATRAL MENDOZA

MARIANO C. DEL CASTILLO Associate Justice
 Associate Justice

(I concur with the Dissenting Opinion of

See Dissenting Opinion
Justice Perlas-Bernabe)
ESTELA M. PERLAS-BERNABE
BIENVENIDO L. REYES
Associate Justice
Associate Justice

See Separate Concurring Opinion See Concurring Opinion

MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA
Associate Justice Associate Justice

See Concurring Opinion

ALFREDO BENJAMIN S. CAGUIOA
Associate Justice

CERTIFICATION

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

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

1Petition for Certiorari in G.R. Nos. 221698-700, pp. 15-16; COMELEC First Division
Resolution dated 11 December 2015 in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and
SPA No. 15-139 (DC), p. 2.

2 Petition for Certiorari, id. at 16-17;

3 COMELEC First Division Resolution, supra note 1 at 4.

4
Petition for Certiorari, supra note 1 at 22.

5
Id. at 17; Comment (on the Petition for Certiorari in G.R. No. 221697) filed by respondent
COMELEC dated 11January 2016, p. 6.

6
Petition for Certiorari, id.; id. at 7.

7
Id. at 18.

8 Supra note 6.

9 Id.
10 COMELEC First Division Resolution, supra note 1 at 3.

11 Petition for Certiorari, supra note 1 at 17.

12 Id. at 18.

13
Id.

14
COMELEC First Division Resolution, supra note 10.

15 Id.

16
Supra note 1 at 17-18.

17 COMELEC First Division Resolution, supra note 10.

18 Id.

19
Id.

20
Petition for Certiorari, supra note 1 at 20.

21 Id.

22 Supra note 3.

23
Supra note 20.

24
Supra note 3.

25 Supra note 20.

26 Supra note 3.

27
Petition for Certiorari, supra note 4.

28 Id.

29
Id. at 23; COMELEC First Division Resolution, supra note 3.

30
Id.; id.

31 Id.; id.

32 Id.; id.

33
Id. at 23-24; COMELEC First Division Resolution, supra note 1 at 5.

34
Id. at 24; id.
35 Id.

36 Supra note 34.

37Petition for Certiorari, supra note 1 at 25; COMELEC First Division Resolution, supra note 1
at 5.

38 Id. at 25-26; id.

39
Id. at 26; id.

40
Id.; id.

41 Id.; id.

42 Id. at 32; id. at 6.

43
Supra note 39.

Petition for Certiorari, supra note 1 at 26-27; COMELEC First Division Resolution, supra
44

note 1 at 5.

45
Section 5, R.A. No. 9225 states:

SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following
conditions:

xx xx

3. Those appointed to any public office shall subscribe and swear to an oath of allegiance to
the Republic of the Philippines and its duly constituted authorities prior to their assumption of
office: Provided, That they renounce their oath of allegiance to the country where they took
that oath;

xx xx

46 Petition for Certiorari, supra note 1 at 27.

47 Id. at 29.

48
Supra note 46; supra note 1 at 6.

49 Petition for Certiorari, supra note 1 at 30; id.

50 Id.

51
Supra note 48.
52Petition for Certiorari, supra note 1 at 31; COMELEC First Division Resolution, supra note 1
at 6.

53
Comment, supra note 5 at 9.

54 Petition for Certiorari, supra note 1 at 31.

55 Id. at 32; Comment, supra note 53 at 10.

56
Id.; COMELEC First Division Resolution, supra note 1 at 6.

57
Id.; id. at 7.

58 Id.; id.

59Comment (on the Petition in G.R. No. 221697) filed by respondent Elamparo, dated January
6, 2016, p. 7.

60COMELEC Second Division Resolution dated December 1, 2015 in SPA No. 15-001 (DC), p.
7.

61 Id. at 7-8.

62
Supra note 60.

63
Id.

64 Id. at 8.

65 Id.

66
Petition for Certiorari in GR. No. 221697, p. 7.

67 Supra note 64.

Petition for Certiorari, supra note 65 at 8; COMELEC Second Division Resolution, supra
68

note 60 at 8-11.

69 COMELEC Second Division Resolution, supra note 60 at 34.

70
Comment, supra note 59 at 10.

71 Section 1 of Rule 25 of the COMELEC Rules of Procedure, as amended, states:

Rule 25 - Disqualification of Candidates

Section 1. Grounds. - Any candidate who, in an action or protest in which he is a party, is

declared by final decision of a competent court, guilty of, or found by the Commission to be
suffering from any disqualification provided by law or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a
Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a
combination thereof, shall be summarily dismissed.

72
Petition to Disqualify dated 19 October 2015 filed by Tatad in SPA No. 15-002 (DC), p. 9.

73
Id., at 9 and 14.

74 Id. at 10.

75 Id. at 12.

76
Id. at 11.

77
COMELEC First Division Resolution, supra note 1 at 8.

78 Id.

79 Petition to Disqualify, supra note 72 at 11.

80
Id. at 21.

81
Id.

82 Id.

83
Supra note I at 8.

84 Id.

Contreras' petition is a petition for cancellation of Grace Poe's COC under Section 78 of the
85

Omnibus Election Code which states that:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen days before the election.

Petition for Cancellation of Grace Poe's COC dated 17 October 2015 filed by Contreras in
86

SPA No. 15-007 (DC), pp. 2-4.

87 Id. at 3; Petition for Certiorari, supra note l at 13.

88 Id. at 3-4.

89
Sections 12 and 68 of the Omnibus Election Code provide:
Sec. 12. Disqualifications. -Any person who has been declared by competent authority insane
or incompetent, or has been sentenced by final judgment for subversion, insurrection,
rebellion or for any offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary pardon or granted
amnesty.

This disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or
after the expiration of a period of five years from his service of sentence, unless within the
same period he again becomes disqualified.

Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is
declared by final decision of a competent court guilty of, or found by the Commission of
having (a) given money or other material consideration to influence, induce or corrupt the
voters or public officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a permanent
resident of or an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement provided for in
the election laws.

90 COMELEC First Division Resolution, supra note 1 at 12.

91 Id. at 10.

92
Id.

93 Id. at 9.

94 Id.

95
Id.

96
Id.

97 Id.

98 Id.

99
Id.at 9-10.

100
Id.at 10.

101 Id.

102 Id.
 The 11 December 2015 Resolution of the COMELEC First Division was concurred in by
103

Commissioners Louie Tito F. Guia and Ma. Rowena Amelia V. Guanzon. Presiding
Commissioner Christian Robert S. Lim issued a Separate Dissenting Opinion.

104
318 Phil. 329 (1995).

105
595 Phil. 449 (2008).

106 Romualdez-Marcos v. COMELEC, supra note 104 at 396-397.

107 Id. at 397-398; Fermin v. COMELEC, supra note 105 at 471-472.

In A.M. No. 02-6-02-SC, Resolution Approving The Proposed Rule on Adoption (Domestic
108

and Inter-Country), effective 22 August 2002, "foundling" is defined as "a deserted or

abandoned infant or child whose parents, guardian or relatives are unknown; or a child
committed to an orphanage or charitable or similar institution with unknown facts of birth and
parentage and registered in the Civil Register as a "foundling."

109 Article IV-Citizenship.

Sec. I. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution,

(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this
Constitution, had been elected to public office in the Philippine Islands.

(3) Those whose fathers are citizens of the Philippines.

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of
majority, elect Philippine citizenship.

(5) Those who are naturalized in accordance with law.

Section 2. Philippine citizenship may be lost or reacquired in the manner provided by law.

Article 163 to 182, Title VI of Executive Order No. 209, otherwise known as The Family
110

Code of the Philippines, which took effect on 4 August 1988.

111Statistics from the PSA or its predecessor agencies are admissible evidence. See Herrera v.
COMELEC,376 Phil. 443 (I 999) and Bagabuyo v. COMELEC, 593 Phil. 678 (2008). In the
latter case, the Court even took judicial notice of the figures.

112
Transcipt of Stenographic Notes, 9 February 2016, p. 40.

113 Section 3 (y), Rule 131.

114
236 Phil. 307 (1987).
115 Id. at314-315.

English translation of the Spanish original presented in the petitioner's pleadings before the
116

COMELEC and this Court. The COMELEC and private respondents have not disputed the
accuracy and correctness of the translation.

117
I Jose M. Aruego, The Framing of the Philippine Constitution 209 (1949).

118 TSN, 16 February 2016, pp. 20-21.

119 117 Phil. 976 (1963).

120
Id. at 978-979.

See Section 5 of the RA No. 8552: "Location of Unknown Parent(s). - It shall be the duty of
121

the Department or the child-caring agency which has custody of the child to exert all efforts to
locate his/her unknown biological parent(s). If such efforts fail, the child shall be registered as
a foundling and subsequently be the subject of legal proceedings where he/she shall be
declared abandoned." (Underlining supplied)

122
See Exhibit "l" in SPA No. 15-001 (DC) and SPA No. 15-00 (DC).

123
See Exhibit "2" in SPA No. 15-001 (DC) and SPA No. 15-00 (DC).

Razon, Jr. v. Tagitis, 621 Phil. 536, 600 (2009) citing Pharmaceutical and Health Care
124

Assoc. of the Philippines v. Duque III, 561 Phil. 386, 398 (2007).

125 Article 38.1, paragraphs (b) and (c) of the Statute of the International Court of Justice.

126 Mijares v. Ranada, 495 Phil. 372, 395 (2005).

Pharmaceutical and Health Care Assoc. of the Philippines v. Duque III, 561 Phil. 386, 400
127

(2007).

128
International School Alliance of Educators v. Quisumbing, 388 Phil. 661, 672-673 (2000).

129
CONSTITUTION, Art. III, Sec. 1.

130 Rep. of the Philippines v. Sandiganbayan, 454 Phil. 504, 545 (2003).

131 "Everyone has the right to a nationality."

132
See Introductory Note to the United Nations Convention on the Reduction of Statelessness
issued by the United Nations High Commissioner on Refugees.

133 Supra note 124.

134
Supra note 126.

135 Id. at 392; See footnote No. 55 of said case.

136 Pharmaceutical and Health Care Assoc. of the Philippines v. Duque III, supra note 127.

137 See Exhibits 38 and 39-series.

138 Opening Statement of the Solicitor General, p. 6.

First Division resolution dated 11 December 2015, upheld in toto by the COMELEC En
139

Banc.

140
409 Phil. 633, 649 (2001).

141
692 Phil. 407, 420 (2012).

142 551 Phil. 368, 381 (2007).

143 53 I Phil. 407, 417 (2006).

144
Supra note 142.

145 Supra note 140 at 646.

146
Id. at 651.

147
G.R. No. 217126-27, 10 November 2015.

148 Id.

149 Implementing Rules and Regulations of Republic Act No. 8552, Art. VI, Sec. 33.

150
Republic Act No. 8552 (1998), Sec. 14.

151
Republic Act No. 8552 (1998), Sec. 15.

152 Fernandez v. House of Representatives Electoral Tribunal, 623 Phil. 628, 660 (2009)
citing Japzon v. COMELEC, 596 Phil. 354, 370-372 (2009) further citing Papandayan, Jr. v.
COMELEC, 430 Phil. 754, 768-770 (2002) further further citing Romualdez v. RTC,
Br. 7, Tacloban City, G.R. No. 104960, 14 September 1993, 226 SCRA408, 415.

153 Domino v. COMELEC, 369 Phil. 798, 819 (1999).

154
TSN, 16 February 2016, p. 120.

155 434 Phil. 861 (2002).

156 596 Phil. 354 (2009).

157 G.R. No. 209835, 22 September 2015.

158
G.R. No. 207264, 25 June 2013, 699 SCRA 522.
159 Supra note 155.

160 Supra note 156.

161 Supra note 157.

162
Supra note 158.

163
Republic Act No. 6768 (1989), as amended, Sec. 2(a).

164 Republic Act No. 6768 (1989), as amended, Sec. I.

165
Republic Act No. 6768 (1989), as amended, Sec. 6.

166 Supra note 155.

167 Supra note 104 at 326. (Emphasis supplied)

168
Ugdoracion, Jr. v. COMELEC, 575 Phil. 253, 265-266 (2008).

169
In Mitra v. COMELEC, et al., [636 Phil. 753 (2010)], It was ruled that the residence
requirement can be complied with through an incremental process including acquisition of
business interest in the pertinent place and lease of feedmill building as residence.

170 COMELEC Resolution dated 11 December2015 in SPA No. 15-002 (DC), pp. 4-5.
 Supreme Court
Manila
EN BANC

DENNIS A. B. FUNA, G.R. No. 184740

Petitioner,
Present:
PUNO, C.J.,
- versus - CARPIO,
CORONA,
CARPIO MORALES,
EXECUTIVE SECRETARY VELASCO, JR.,
EDUARDO R. ERMITA, Office of NACHURA,
the President, SEC. LEANDRO R. LEONARDO-DE CASTRO,
MENDOZA, in his official capacity BRION,
as Secretary of the Department of PERALTA,
Transportation and BERSAMIN,
Communications, USEC. MARIA DEL CASTILLO,
ELENA H. BAUTISTA, in her ABAD,
official capacities as VILLARAMA, JR.,
Undersecretary of the Department PEREZ, and
of Transportation and MENDOZA, JJ.
Communications and as
Officer-in-Charge of the Maritime Promulgated:
Industry Authority (MARINA),
Respondents. February 11, 2010
x-----------------------------------------------------------------------------------------x

DECISION

VILLARAMA, JR., J.:

This is a petition for certiorari, prohibition and mandamus under Rule

65 with prayer for the issuance of a temporary restraining order and/or writ
of preliminary injunction, to declare as unconstitutional the designation of
respondent Undersecretary Maria Elena H. Bautista as Officer-in-Charge
(OIC) of the Maritime Industry Authority (MARINA).
 The Antecedents

On October 4, 2006, President Gloria Macapagal-Arroyo appointed

respondent Maria Elena H. Bautista (Bautista) as Undersecretary of the
Department of Transportation and Communications (DOTC), vice Agustin
R. Bengzon. Bautista was designated as Undersecretary for Maritime
Transport of the department under Special Order No. 2006-171
dated October 23, 2006.[1]

On September 1, 2008, following the resignation of then MARINA

Administrator Vicente T. Suazo, Jr., Bautista was designated as
Officer-in-Charge (OIC), Office of the Administrator, MARINA, in
concurrent capacity as DOTC Undersecretary.[2]

On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer,

concerned citizen and lawyer, filed the instant petition challenging the
constitutionality of Bautistas appointment/designation, which is proscribed
by the prohibition on the President, Vice-President, the Members of the
Cabinet, and their deputies and assistants to hold any other office or
employment.

On January 5, 2009, during the pendency of this petition, Bautista was

appointed Administrator of the MARINA vice Vicente T. Suazo, Jr.[3] and
she assumed her duties and responsibilities as such on February 2, 2009.[4]

The Case

Petitioner argues that Bautistas concurrent positions as DOTC Undersecretary

and MARINA OIC is in violation of Section 13, Article VII of the 1987
Constitution, as interpreted and explained by this Court in Civil Liberties

Union v. Executive Secretary,[5] and reiterated in Public Interest Center, Inc. v.

Elma.[6] He points out that while it was clarified in Civil Liberties Union that
the prohibition does not apply to those positions held in ex-officio capacities,
the position of MARINA Administrator is not ex-officio to the post of DOTC
Undersecretary, as can be gleaned from the provisions of its charter,
Presidential Decree (P.D.) No. 474,[7] as amended by Executive Order (EO)
No. 125-A.[8] Moreover, the provisions on the DOTC in the Administrative
Code of 1987, specifically Sections 23 and 24, Chapter 6, Title XV, Book IV
do not provide any ex-officio role for the undersecretaries in any of the
departments attached agencies.The fact that Bautista was extended an
appointment naming her as OIC of MARINA shows that she does not occupy
it in an ex-officio capacity since an ex-officio position does not require any
further warrant or appoint.[9]

Petitioner further contends that even if Bautistas appointment or designation

as OIC of MARINA was intended to be merely temporary, still, such
designation must not violate a standing constitutional prohibition, citing the
rationale in Achacoso v. Macaraig.[10] Section 13, Article VII of the 1987
Constitution does not enumerate temporariness as one (1) of the exceptions
thereto. And since a temporary designation does not have a maximum
duration, it can go on for months or years. In effect, the temporary
appointment/designation can effectively circumvent the
prohibition. Allowing undersecretaries or assistant secretaries to occupy
other government posts would open a Pandoras Box as to let them feast on
choice government positions. Thus, in case of vacancy where no permanent
appointment could as yet be made, the remedy would be to designate one (1)
of the two (2) Deputy Administrators as the Acting Administrator. Such
would be the logical course, the said officers being in a better position in
terms of knowledge and experience to run the agency in a temporary
capacity. Should none of them merit the Presidents confidence, then the
practical remedy would be for Undersecretary Bautista to first resign as
Undersecretary in order to qualify her as Administrator of MARINA. As to
whether she in fact does not receive or has waived any remuneration, the
same does not matter because remuneration is not an element in determining
whether there has been a violation of Section 13, Article VII of the 1987
Constitution.[11]

Petitioner likewise asserts the incompatibility between the posts of DOTC

Undersecretary and MARINA Administrator. The reason is that with respect
to the affairs in the maritime industry, the recommendations of
the MARINA may be the subject of counter or opposing recommendations
from the Undersecretary for Maritime Transport. In this case, the DOTC
Undersecretary for Maritime Transport and the OIC of MARINA have
become one (1) and the same person. There is no more checking and
counter-checking of powers and functions, and therein lies the danger to the
maritime industry. There is no longer a person above the Administrator of
MARINA who will be reviewing the acts of said agency because the person
who should be overseeing MARINA, the Undersecretary for Maritime
Transport, has effectively been compromised.[12]

Finally, petitioner contends that there is a strong possibility in this case that
the challenge herein can be rendered moot through the expediency of simply
revoking the temporary appointment/designation. But since a similar
violation can be committed in the future, there exists a possibility of evading
review, and hence supervening events should not prevent the Court from
deciding cases involving grave violation of the 1987 Constitution, as this
Court ruled in Public Interest Center. Notwithstanding its mootness
therefore, should it occur, there is a compelling reason for this case to be
decided: the issue raised being capable of repetition, yet evading review.[13]

On the other hand, the respondents argue that the requisites of a judicial
inquiry are not present in this case. In fact, there no longer exists an actual
controversy that needs to be resolved in view of the appointment of
respondent Bautista as MARINA Administrator effective February 2,
2009 and the relinquishment of her post as DOTC Undersecretary for
Maritime Transport, which rendered the present petition moot and
academic. Petitioners prayer for a temporary restraining order or writ of
preliminary injunction is likewise moot and academic since, with this
supervening event, there is nothing left to enjoin.[14]

Respondents also raise the lack of legal standing of petitioner to bring this
suit. Clear from the standard set in Public Interest Center is the requirement
that the party suing as a taxpayer must prove that he has sufficient interest in
preventing illegal expenditure of public funds, and more particularly, his
personal and substantial interest in the case.Petitioner, however, has not
alleged any personal or substantial interest in this case. Neither has he
claimed that public funds were actually disbursed in connection with
respondent Bautistas designation as MARINA OIC. It is to be noted that
respondent Bautista did not receive any salary while she was MARINA
OIC. As to the alleged transcendental importance of an issue, this should not
automatically confer legal standing on a party.[15]

Assuming for the sake of argument that the legal question raised herein
needs to be resolved, respondents submit that the petition should still be
dismissed for being unmeritorious considering that Bautistas concurrent
designation as MARINA OIC and DOTC Undersecretary was
constitutional. There was no violation of Section 13, Article VII of the 1987
Constitution because respondent Bautista was merely designated acting head
of MARINA on September 1, 2008. She was designated MARINA OIC, not
appointed MARINA Administrator. With the resignation of Vicente T.
Suazo, Jr., the position of MARINA Administrator was left vacant, and
pending the appointment of permanent Administrator, respondent Bautista
was designated OIC in a temporary capacity for the purpose of preventing a
hiatus in the discharge of official functions. Her case thus falls under the
recognized exceptions to the rule against multiple offices, i.e., without
additional compensation (she did not receive any emolument as MARINA
OIC) and as required by the primary functions of the office. Besides,
Bautista held the position for four (4) months only, as in fact when she was
appointed MARINA Administrator onFebruary 2, 2009, she relinquished her
post as DOTC Undersecretary for Maritime Transport, in acknowledgment
of the proscription on the holding of multiple offices.[16]

As to petitioners argument that the DOTC Undersecretary for Maritime

Transport and MARINA Administrator are incompatible offices,
respondents cite the test laid down inPeople v. Green,[17] which held that
[T]he offices must subordinate, one [over] the other, and they must, per
se, have the right to interfere, one with the other, before they are compatible
at common law. Thus, respondents point out that any recommendation by
the MARINA Administrator concerning issues of policy and administration
go to the MARINA Board and not the Undersecretary for Maritime
Transport. The Undersecretary for Maritime Transport is, in turn, under the
direct supervision of the DOTC Secretary.Petitioners fear that there is no
longer a person above the Administrator of MARINA who will be reviewing
the acts of said agency (the Undersecretary for Maritime Transport) is,
therefore, clearly unfounded.[18]

In his Reply, petitioner contends that respondents argument on the

incompatibility of positions was made on the mere assumption that the
positions of DOTC Undersecretary for Maritime Transport and the
administratorship of MARINA are closely related and is governed by
Section 7, paragraph 2, Article IX-B of the 1987 Constitution rather than by
Section 13, Article VII. In other words, it was a mere secondary
argument. The fact remains that, incompatible or not, Section 13, Article VII
still does not allow the herein challenged designation.[19]

The sole issue to be resolved is whether or not the designation of respondent

Bautista as OIC of MARINA, concurrent with the position of DOTC
Undersecretary for Maritime Transport to which she had been appointed,
violated the constitutional proscription against dual or multiple offices for
Cabinet Members and their deputies and assistants.

Our Ruling

The petition is meritorious.

Requisites for Judicial Review

The courts power of judicial review, like almost all other powers conferred
by the Constitution, is subject to several limitations, namely: (1) there must
be an actual case or controversy calling for the exercise of judicial power; (2)
the person challenging the act must have standing to challenge; he must have
a personal and substantial interest in the case, such that he has sustained or
will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4)
the issue of constitutionality must be the very lis mota of the
case.[20] Respondents assert that the second requisite is absent in this case.
Generally, a party will be allowed to litigate only when (1) he can show that
he has personally suffered some actual or threatened injury because of the
allegedly illegal conduct of the government; (2) the injury is fairly traceable
to the challenged action; and (3) the injury is likely to be redressed by a
favorable action.[21] The question on standing is whether such parties have
alleged such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional
questions.[22]

In David v. Macapagal-Arroyo,[23] summarizing the rules culled from

jurisprudence, we held that taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following
requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity
of the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled
early; and
(5) for legislators, there must be a claim that the official action complained
of infringes upon their prerogatives as legislators. [EMPHASIS
SUPPLIED.]

Petitioner having alleged a grave violation of the constitutional prohibition

against Members of the Cabinet, their deputies and assistants holding two (2)
or more positions in government, the fact that he filed this suit as a
concerned citizen sufficiently confers him with standing to sue for redress of
such illegal act by public officials.

The other objection raised by the respondent is that the resolution of this
case had been overtaken by events considering the effectivity of respondent
Bautistas appointment as MARINA Administrator effective February 2,
2009 and her relinquishment of her former position as DOTC
Undersecretary for Maritime Transport.

A moot and academic case is one that ceases to present a justiciable

controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. Generally, courts decline jurisdiction
over such case or dismiss it on ground of mootness.[24] However, as we held
in Public Interest Center, Inc. v. Elma,[25] supervening events, whether
intended or accidental, cannot prevent the Court from rendering a decision if
there is a grave violation of the Constitution. Even in cases where
supervening events had made the cases moot, this Court did not hesitate to
resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar, and public.[26]

As a rule, the writ of prohibition will not lie to enjoin acts already
done. However, as an exception to the rule on mootness, courts will decide
a question otherwise moot if it is capable of repetition yet evading
review.[27] In the present case, the mootness of the petition does not bar its
resolution. The question of the constitutionality of the Presidents
appointment or designation of a Department Undersecretary as
officer-in-charge of an attached agency will arise in every such
appointment.[28]

Undersecretary Bautistas
designation as MARINA
OIC falls
under the stricter prohibit
ion under Section 13,
Article VII of the 1987
Constitution.

Resolution of the present controversy hinges on the correct application of

Section 13, Article VII of the 1987 Constitution, which provides:
SEC. 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment
 during their tenure. They shall not, during said tenure, directly or
indirectly practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.

On the other hand, Section 7, paragraph (2), Article IX-B reads:

SEC. 7. x x x

Unless otherwise allowed by law or the primary functions of

his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.

In Civil Liberties Union, a constitutional challenge was brought before this

Court to nullify EO No. 284 issued by then President Corazon C. Aquino on
July 25, 1987, which included Members of the Cabinet, undersecretaries and
assistant secretaries in its provisions limiting to two (2) the positions that
appointive officials of the Executive Department may hold in government
and government corporations. Interpreting the above provisions in the light
of the history and times and the conditions and circumstances under which
the Constitution was framed, this Court struck down as unconstitutional said
executive issuance, saying that it actually allows them to hold multiple
offices or employment in direct contravention of the express mandate of
Section 13, Article VII of the 1987 Constitution prohibiting them from doing
so, unless otherwise provided in the 1987 Constitution itself.

Noting that the prohibition imposed on the President and his official family
is all-embracing, the disqualification was held to be absolute, as the holding
of any other office is not qualified by the phrase in the Government unlike in
Section 13, Article VI prohibiting Senators and Members of the House of
Representatives from holding any other office or employment in the
Government; and when compared with other officials and employees such as
members of the armed forces and civil service employees, we concluded
thus:
These sweeping, all-embracing prohibitions imposed on the President and
his official family, which prohibitions are not similarly imposed on other
public officials or employees such as the Members of Congress, members
of the civil service in general and members of the armed forces, are proof
of the intent of the 1987 Constitution to treat the President and his
official family as a class by itself and to impose upon said class stricter
prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter
with the President and his official family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong
noted during the floor deliberations and debate that there was no symmetry
between the Civil Service prohibitions, originally found in the General
Provisions and the anticipated report on the Executive Department.
Commissioner Foz Commented, We actually have to be stricter with the
President and the members of the Cabinet because they exercise more
powers and, therefore, more checks and restraints on them are called for
because there is more possibility of abuse in their case.
Thus, while all other appointive officials in the civil service are
allowed to hold other office or employment in the government during
their tenure when such is allowed by law or by the primary functions
of their positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B is meant to lay
down the general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice-President,
Members of the Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution
is to impose a stricter prohibition on the President, Vice-President,
members of the Cabinet, their deputies and assistants with respect to
holding multiple offices or employment in the government during their
tenure, the exception to this prohibition must be read with equal
severity. On its face, the language of Section 13, Article VII is prohibitory
so that it must be understood as intended to be a positive and unequivocal
negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a positive and
unequivocal negation. The phrase unless otherwise provided in this
Constitution must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit: the
Vice-President being appointed as a member of the Cabinet under Section
3, par. (2), Article VII; or acting as President in those instances provided
 under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice
beingex-officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.[29] [EMPHASIS SUPPLIED.]

Respondent Bautista being then the appointed Undersecretary of DOTC, she

was thus covered by the stricter prohibition under Section 13, Article VII
and consequently she cannot invoke the exception provided in Section 7,
paragraph 2, Article IX-B where holding another office is allowed by law or
the primary functions of the position. Neither was she designated OIC of
MARINA in an ex-officio capacity, which is the exception recognized
in Civil Liberties Union.

The prohibition against holding dual or multiple offices or employment

under Section 13, Article VII of the 1987 Constitution was held inapplicable
to posts occupied by the Executive officials specified therein, without
additional compensation in an ex-officio capacity as provided by law and as
required by the primary functions of said office. The reason is that these
posts do not comprise any other office within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties
and functions on said officials.[30] Apart from their bare assertion that
respondent Bautista did not receive any compensation when she was OIC of
MARINA, respondents failed to demonstrate clearly that her designation as
such OIC was in an ex-officio capacity as required by the primary functions
of her office as DOTC Undersecretary for Maritime Transport.

MARINA was created by virtue of P.D. No. 474 issued by President

Ferdinand E. Marcos on June 1, 1974. It is mandated to undertake the
following:
(a) Adopt and implement a practicable and coordinated Maritime Industry
Development Program which shall include, among others, the early
replacement of obsolescent and uneconomic vessels; modernization
and expansion of the Philippine merchant fleet, enhancement of
domestic capability for shipbuilding, repair and maintenance; and the
development of reservoir of trained manpower;

(b) Provide and help provide the necessary; (i) financial assistance to the
industry through public and private financing institutions and
instrumentalities; (ii) technological assistance; and (iii) in general, a
 favorable climate for expansion of domestic and foreign investments
in shipping enterprises; and

(c) Provide for the effective supervision, regulation and rationalization of

the organizational management, ownership and operations of all
water transport utilities, and other maritime enterprises.[31]

The management of MARINA is vested in the Maritime Administrator, who

shall be directly assisted by the Deputy Administrator for Planning and a
Deputy Administrator for Operations, who shall be appointed by the President
for a term of six (6) years. The law likewise prescribes the qualifications for
the office, including such adequate training and experience in economics,
technology, finance, law, management, public utility, or in other phases or
aspects of the maritime industry, and he or she is entitled to receive a fixed
annual salary.[32] The Administrator shall be directly responsible to the
Maritime Industry Board, MARINAs governing body, and shall have powers,
functions and duties as provided in P.D. No. 474, which provides, under
Sections 11 and 12, for his or her general and specific functions, respectively,
as follows:
SEC. 11. General Powers and Functions of the Administrator.
Subject to the general supervision and control of the Board, the
Administrators shall have the following general powers, functions and
duties;
a. To implement, enforce and apply the policies, programs, standards,
guidelines, procedures, decisions and rules and regulations issued,
prescribed or adopted by the Board pursuant to this Decree;
b. To undertake researches, studies, investigations and other activities and
projects, on his own initiative or upon instructions of the Board,
and to submit comprehensive reports and appropriate
recommendations to the Board for its information and action;
c. To undertake studies to determine present and future requirements for
port development including navigational aids, and improvement of
waterways and navigable waters in consultation with appropriate
agencies;
d. To pursue continuing research and developmental programs on
expansion and modernization of the merchant fleet and supporting
facilities taking into consideration the needs of the domestic trade
and the need of regional economic cooperation schemes; and
e. To manage the affairs of the Authority subject to the provisions of this
Decree and applicable laws, orders, rules and regulations of other
appropriate government entities.

SEC. 12. Specific Powers and Functions of the Administrator. In

addition to his general powers and functions, the Administrator shall;
a. Issue Certificate of Philippine Registry for all vessels being used in
Philippine waters, including fishing vessels covered by Presidential
Decree No. 43 except transient civilian vessels of foreign registry,
vessels owned and/or operated by the Armed Forces of the
Philippines or by foreign governments for military purposes, and
bancas, sailboats and other watercraft which are not motorized, of less
than three gross tons;
b. Provide a system of assisting various officers, professionals, technicians,
skilled workers and seamen to be gainfully employed in shipping
enterprises, priority being given to domestic needs;
c. In collaboration and coordination with the Department of Labor, to look
into, and promote improvements in the working conditions and
terms of employment of the officers and crew of vessels of
Philippine registry, and of such officers and crew members who
are Philippine citizens and employed by foreign flag vessels, as
well as of personnel of other shipping enterprises, and to assist in
the settlement of disputes between the shipowners and ship
operators and such officers and crew members and between the
owner or manager of other shipping enterprises and their
personnel;
d. To require any public water transport utility or Philippine flag vessels to
provide shipping services to any coastal areas in the country where
such services are necessary for the development of the area, to
meet emergency sealift requirements, or when public interest so
requires;
e. Investigate by itself or with the assistance of other appropriate
government agencies or officials, or experts from the private sector,
any matter within its jurisdiction, except marine casualties or
accidents which shall be undertaken by the Philippine Coast
Guard;
f. Impose, fix, collect and receive in accordance with the schedules
approved by the Board, from any shipping enterprise or other
persons concerned, such fees and other charges for the payment of
its services;
 g. Inspect, at least annually, the facilities of port and cargo operators and
recommend measures for adherence to prescribed standards of
safety, quality and operations;
h. Approve the sale, lease or transfer of management of vessels owned by
Philippine Nationals to foreign owned or controlled enterprises;
i. Prescribe and enforce rules and regulations for the prevention of marine
pollution in bays, harbors and other navigable waters of
the Philippines, in coordination with the government authorities
concerned;
j. Establish and maintain, in coordination with the appropriate government
offices and agencies, a system of regularly and promptly producing,
collating, analyzing and disseminating traffic flows, port
operations, marine insurance services and other information on
maritime matters;
k. Recommend such measures as may be necessary for the regulation of
the importation into and exportation from the Philippines of vessels,
their equipment and spare parts;
l. Implement the rules and regulations issued by the Board of
Transportation;
m. Compile and codify all maritime laws, orders, rules and regulations,
decisions in leasing cases of courts and the Authoritys procedures
and other requirements relative to shipping and other shipping
enterprises, make them available to the public, and, whenever
practicable to publish such materials;
n. Delegate his powers in writing to either of the Deputy Administrators or
any other ranking officials of the Authority; Provided, That he
informs the Board of such delegation promptly; and
o. Perform such other duties as the Board may assign, and such acts as
may be necessary and proper to implement this Decree.

With the creation of the Ministry (now Department) of Transportation and

Communications by virtue of EO No. 546, MARINA was attached to the
DOTC for policy and program coordination on July 23, 1979. Its regulatory
function was likewise increased with the issuance of EO No. 1011 which
abolished the Board of Transportation and transferred the quasi-judicial
functions pertaining to water transportation to MARINA. On January 30,
1987, EO No. 125 (amended by EO No. 125-A) was issued reorganizing the
DOTC. The powers and functions of the department and the agencies under
its umbrella were defined, further increasing the responsibility
of MARINA to the industry.Republic Act No. 9295, otherwise known as the
The Domestic Shipping Development Act of 2004,[33] further
strengthened MARINAs regulatory powers and functions in the shipping
sector.

Given the vast responsibilities and scope of administration of the Authority,

we are hardly persuaded by respondents submission that respondent Bautistas
designation as OIC of MARINA was merely an imposition of additional
duties related to her primary position as DOTC Undersecretary for Maritime
Transport. It appears that the DOTC Undersecretary for Maritime Transport is
not even a member of the Maritime Industry Board, which includes the DOTC
Secretary as Chairman, the MARINA Administrator as Vice-Chairman, and
the following as members: Executive Secretary (Office of the President),
Philippine Ports Authority General Manager, Department of National Defense
Secretary, Development Bank of the Philippines General Manager, and the
Department of Trade and Industry Secretary.[34]

Finally, the Court similarly finds respondents theory that being just a
designation, and temporary at that, respondent Bautista was never really
appointed as OIC Administrator of MARINA, untenable. In Binamira v.
Garrucho, Jr.,[35] we distinguished between the
terms appointment and designation, as follows:
Appointment may be defined as the selection, by the authority
vested with the power, of an individual who is to exercise the functions
of a given office. When completed, usually with its confirmation, the
appointment results in security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office. Designation, on
the other hand, connotes merely the imposition by law of additional duties
on an incumbent official, as where, in the case before us, the Secretary of
Tourism is designated Chairman of the Board of Directors of the
Philippine Tourism Authority, or where, under the Constitution, three
Justices of the Supreme Court are designated by the Chief Justice to sit in
the Electoral Tribunal of the Senate or the House of Representatives. It is
said that appointment is essentially executive while designation is
legislative in nature.

Designation may also be loosely defined as an appointment

because it likewise involves the naming of a particular person to a
specified public office. That is the common understanding of the
term. However, where the person is merely designated and not appointed,
 the implication is that he shall hold the office only in a temporary capacity
and may be replaced at will by the appointing authority. In this sense, the
designation is considered only an acting or temporary appointment, which
does not confer security of tenure on the person named.[36] [EMPHASIS
SUPPLIED.]

Clearly, respondents reliance on the foregoing definitions is misplaced

considering that the above-cited case addressed the issue of whether petitioner
therein acquired valid title to the disputed position and so had the right to
security of tenure. It must be stressed though that while the designation was in
the nature of an acting and temporary capacity, the words hold the office were
employed. Such holding of office pertains to both appointment and designation
because the appointee or designate performs the duties and functions of the
office. The1987 Constitution in prohibiting dual or multiple offices, as well as
incompatible offices, refers to the holding of the office, and not to the nature of
the appointment or designation, words which were not even found in Section
13, Article VII nor in Section 7, paragraph 2, Article IX-B. To hold an office
means to possess or occupy the same, or to be in possession and
administration,[37] which implies nothing less than the actual discharge of the
functions and duties of the office.

The disqualification laid down in Section 13, Article VII is aimed at

preventing the concentration of powers in the Executive Department
officials, specifically the President, Vice-President, Members of the Cabinet
and their deputies and assistants. Civil Liberties Union traced the history of
the times and the conditions under which the Constitution was framed, and
construed the Constitution consistent with the object sought to be
accomplished by adoption of such provision, and the evils sought to be
avoided or remedied.We recalled the practice, during the Marcos regime, of
designating members of the Cabinet, their deputies and assistants as
members of the governing bodies or boards of various government agencies
and instrumentalities, including government-owned or controlled
corporations. This practice of holding multiple offices or positions in the
government led to abuses by unscrupulous public officials, who took
advantage of this scheme for purposes of self-enrichment. The blatant
betrayal of public trust evolved into one of the serious causes of discontent
with the Marcos regime. It was therefore quite inevitable and in consonance
with the overwhelming sentiment of the people that the 1986 Constitutional
Commission would draft into the proposed Constitution the provisions under
consideration, which were envisioned to remedy, if not correct, the evils that
flow from the holding of multiple governmental offices and
employment.[38] Our declaration in that case cannot be more explicit:
But what is indeed significant is the fact that although Section 7,
Article IX-B already contains a blanket prohibition against the holding of
multiple offices or employment in the government subsuming both
elective and appointive public officials, the Constitutional Commission
should see it fit to formulate another provision, Sec. 13, Article VII,
specifically prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other office or
employment during their tenure, unless otherwise provided in the
Constitution itself.

Evidently, from this move as well as in the different phraseologies

of the constitutional provisions in question, the intent of the framers of
the Constitution was to impose a stricter prohibition on the President
and his official family in so far as holding other offices or employment
in the government or elsewhere is concerned.[39] [EMPHASIS SUPPLIED.]

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

As to respondents contention that the concurrent positions of DOTC

Undersecretary for Maritime Transport and MARINA OIC Administrator
are not incompatible offices, we find no necessity for delving into this
matter. Incompatibility of offices is irrelevant in this case, unlike in the case
of PCGG Chairman Magdangal Elma in Public Interest Center, Inc. v.
Elma.[40] Therein we held that Section 13, Article VII is not applicable to the
PCGG Chairman or to the Chief Presidential Legal Counsel, as he is not a
cabinet member, undersecretary or assistant secretary.[41]
 WHEREFORE, the petition is GRANTED. The designation of
respondent Ma. Elena H. Bautista as Officer-in-Charge, Office of the
Administrator, Maritime Industry Authority, in a concurrent capacity with her
position as DOTC Undersecretary for Maritime Transport, is hereby
declared UNCONSTITUTIONAL for being violative of Section 13, Article
VII of the 1987 Constitution and therefore, NULL and VOID.

No costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

(No Part)
RENATO C. CORONA
ANTONIO T. CARPIO
Associate Justice
Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice
 ARTURO D. BRION DIOSDADO M. PERALTA
Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that
the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

No Part.
[1]
Rollo, pp. 99 and 101.
[2]
Id. at 100.
[3]
Id. at 102.
[4]
Id. at 103-104.
[5]
G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA 317.
[6] G.R. No. 138965, June 30, 2006, 494 SCRA 53.
[7]
PROVIDING FOR THE REORGANIZATION OF MARITIME FUNCTIONS IN THE PHILIPPINES,
CREATING THE MARITIME INDUSTRY AUTHORITY, AND FOR OTHER PURPOSES,
approved on June 1, 1974.
[8]
Approved on April 13, 1987.
[9]
Rollo, pp. 14-27.
[10]
G.R. No. 93023, March 13, 1991, 195 SCRA 235.
[11]
Rollo, pp. 34-37.
[12]
Id. at 38-40.
[13]
Id. at 40-42.
[14]
Id. at 86-87.
[15]
Id. at 88-89.
[16]
Id. at 90-93.
[17]
13 Sickels 295, 58 N.Y. 295, 1874 WL 11282 (N.Y.).
[18]
Id. at 93-95.
[19]
Id. at 127-128.
[20]
Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., G.R.
Nos. 160261-160263, 160277, 160292, 160295, 160310, 160318, 160342, 160343, 160360, 160365,
160370, 160376, 160392, 160397, 160403 and 160405, November 10, 2003, 415 SCRA 44, 133
citing Angara v. Electoral Commission, 63 Phil. 139 (1936).
[21]
Tolentino v. COMELEC, 465 Phil. 385, 402 (2004).
[22]
Kilosbayan, Incorporated v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540,
562-563, citing Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 663 (1962).
[23]
G.R. No. 171396 and six (6) other cases, May 3, 2006, 489 SCRA 160, 220-221.
[24]
David v. Macapagal-Arroyo, supra at 213-214, citing Province of Batangas v. Romulo, G.R. No. 152774,
May 27, 2004, 429 SCRA 736, Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No.
132795, March 10, 2004, 425 SCRA 129, Vda. de Dabao v. Court of Appeals, G.R. No. 116526,
March 23, 2004, 426 SCRA 91; Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003,
415 SCRA 590, Royal Cargo Corporation v. Civil Aeronautics Board,G.R. Nos. 103055-56, January
26, 2004, 421 SCRA 21 and Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.
[25]
G.R. No. 138965, June 30, 2006, 494 SCRA 53.
[26]
Id. at 58, citing Province of Batangas v. Romulo, supra at 757 and Chavez v. Public Estates
Authority, 433 Phil. 506, 522 (2002).
[27]
Pimentel, Jr. v. Ermita, G.R. No. 164978, October 13, 2005, 472 SCRA 587, 593, citing Tolentino v.
Commission on Elections, G.R. No. 148334, January 21, 2004, 420 SCRA 438, Gil v. Benipayo, G.R.
No. 148179, June 26, 2001 (Unsigned Resolution), Chief Supt. Acop v. Secretary Guingona, Jr., 433
Phil. 62 (2002), Viola v. Hon. Alunan III, 343 Phil. 184 (1997) and Alunan III v. Mirasol, 342 Phil. 467
(1997).
[28]
Id. at 593.
[29]
Civil Liberties Union v. Executive Secretary, supra at 328-329, 331.
[30]
Id. at 331-332.
[31]
P.D. NO. 474, SEC. 2.
[32]
Id., SECS. 8 and 9.
[33]
AN ACT PROMOTING THE DEVELOPMENT OF PHILIPPINE DOMESTIC SHIPPING,
SHIPBUILDING, SHIP REPAIR AND SHIP BREAKING, ORDAINING REFORMS IN
GOVERNMENT POLICIES TOWARDS SHIPPING IN THE PHILIPPINES, AND FOR OTHER
PURPOSES, approved on May 3, 2004.
[34]
Reference: 2006 MARINA Annual Report, sourced from the Internet
at http://www.marina.gov.ph/services/results.aspx?k=MARINA%20annual%20report&start1=1>.
[35]
G.R. No. 92008, July 30, 1990, 188 SCRA 154.
[36]
Id. at 158-159.
[37]
BLACKS LAW DICTIONARY, Eighth Edition, p. 749.
[38]
Civil Liberties Union v. Executive Secretary, supra at 326-327.
[39]
Id. at 327.
[40]
Supra note 6.
[41] Id. at 62.
 [G.R. No. 163783. June 22, 2004]

PIMENTEL vs. CONGRESS

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 22 2004.

G. R. No. 163783 (Aquilino Q. Pimentel, Jr. vs. Joint Committee of Congress to Canvass the Votes Cast for
President and Vice-President in the May 10, 2004 Elections.)

RESOLUTION

By the present Petition for Prohibition, petitioner Senator Aquilino Q. Pimentel, Jr. seeks a judgment declaring
null and void the continued existence of the Joint Committee of Congress (Joint Committee) to determine the
authenticity and due execution of the certificates of canvass and preliminarily canvass the votes cast for
Presidential and Vice-Presidential candidates in the May 10, 2004 elections following the adjournment of
Congress sine die on June 11, 2004. The petition corollarily prays for the issuance of a writ of prohibition
directing the Joint Committee to cease and desist from conducting any further proceedings pursuant to the
Rules of the Joint Public Session of Congress on Canvassing.

Petitioner posits that with "the adjournment sine die on June 11, 2004 by the Twelfth Congress of its last
regular session, [its] term ... terminated and expired on the said day and the said Twelfth Congress serving
the term 2001 to 2004 passed out of legal existence." Henceforth, petitioner goes on, "all pending matters
and proceedings terminate upon the expiration of ... Congress." To advance this view, he relies on "legislative
procedure, precedent or practice [as] borne [out] by the rules of both Houses of Congress."

Given the importance of the constitutional issue raised and to put to rest all questions regarding the regularity,
validity or constitutionality of the canvassing of votes fro President and Vice-President in the recently
concluded national elections, this Court assumes jurisdiction over the instant petition pursuant to its power
and duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government" under Section 1 of Article VIII
of the Constitution and its original jurisdiction over petitions for prohibition under Section 5 of the same
Article.

After a considered and judicious examination of the arguments raised by petitioner as well as those presented
in the Comments filed by the Solicitor General and respondent Joint Committee, this Court finds that the
petition has absolutely no basis under the Constitution and must, therefore, be dismissed.

Petitioner's claim that his arguments are buttressed by "legislative procedure, precedent or practice [as]
borne [out] by the rules of both Houses of Congress" is directly contradicted by Section 42 of Rule XIV of the
Rules adopted by the Senate, of which he is an incumbent member. This section clearly provides that the
Senate shall convene in joint session during any voluntary orcompulsory recess to canvass the
votes for President and Vice-President not later than thirty days after the day of the elections in
accordance with Section 4, Article VII of the Constitution.

Moreover, as pointed out in the Comment filed by the Senate Panel for respondent Joint Committee and that
of the Office of the Solicitor General, the precedents set by the 1992 and 1998 Presidential Elections do not
support the move to stop the ongoing canvassing by the Joint Committee, they citing the observations of
former Senate President Jovito Salonga.

Thus, during the 1992 Presidential elections, both Houses of Congress adjourned sine die on May 25, 1992.
On June 16, 1992, the Joint Committee finished tallying the votes for President and
Vice-President.[1] Thereafter, on June 22, 1992, the Eighth Congress convened in joint public session as the
cral aw

National Board of Canvassers, and on even date proclaimed Fidel V. Ramos and Joseph Ejercito Estrada as
President and Vice-President, respectively.[2] cral aw
Upon the other hand, during the 1998 Presidential elections, both Houses of Congress adjourned sine die on
May 25, 1998. The Joint Committee completed the counting of the votes for President and Vice-President on
May 27, 1998.[3] The Tenth Congress then convened in joint public session on May 29, 1998 as the National
cral aw

Board of Canvassers and proclaimed Joseph Ejercito Estrada as President and Gloria Macapagal-Arroyo as
President and Vice-President, respectively.[4]cral aw

As for petitioner's argument that "the [e]xistence and [p]roceedings [o]f the Joint Committee of Congress
[a]re [i]nvalid, [i]llegal and [u]nconstitutional [f]ollowing the [a]djournment [s]ine [d]ie [o]f [b]oth Houses
of Congress [o]f [t]heir [r]egular [s]essions on June 11, 2004," he cites in support thereof Section 15, Article
VI of the Constitution which reads:

Sec. 15. The Congress shall convene once every year on the fourth Monday of July for its regular session,
unless a different date is fixed by law, and shall continue to be in session for such number of days as it may
determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays,
and legal holidays. The President may call a special session at any time.

Contrary to petitioner's argument, however, the term of the present Twelfth Congress did not terminate and
expire upon the adjournment sine die of the regular session of both Houses on June 11, 2004.

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

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

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

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

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

WHEREFORE, the instant Petition is hereby DISMISSED.

Vitug, J., on official leave; Ynares-Santiago and Austria-Martinez, JJ., on leave.

Very truly yours,

(Sgd.) LUZVIMINDA D. PUNO

Clerk of Court
Endnotes:

[1]
Manila Bulletin, June 17, 1992, p.25; Philippine Daily
cralaw

Inquirer, June 17, 1992, pp. 1 & 12; Philippine Star, June 17,
1992, pp. 1 & 2.

[2]
Manila Bulletin, June 23, 1992, pp. 1 & 20; Philippine Daily
cralaw

Inquirer, June 23, 1992, pp. 1 & 12; Philippine Star, June 23,
1992, pp. 1 & 8.

[3]
Manila Bulletin, May 28, 1998, pp. 1 & 9; Philippine Star,
cralaw

May 28, 1998, pp. 1 & 18.

[4]
Manila Bulletin, May 30, 1998, pp. 1 & 8; Philippine Daily
cralaw

Inquirer, May 30, 1998, pp. 1 & 6; Philippine Star, May 30, 1998,
pp. 1 & 16.
Cong. Ruy Elias C. Lopez v. Senate of the Philippines, House of
Representatives, et al, (G.R. No. 163556, June 8, 2004) where the Supreme
Court, voting 14-0, ruled: Section 4, Article VII of the Constitution expressly
empowers Congress to promulgate its rules for the canvassing of the
certificates.In Arroyo v. de Venecia (277 SCRA 268, August 14,1997), the
Court ruled that it had no power to review the internal proceedings of
Congress, unless there is a clear violation of the Constitution. Likewise,
Santiago v. Guingona, (298 SCRA 756,November 18, 1998) held that the
Court under the doctrine of separation of powers has no authority to
interfere in theexclusive realm of a co-equal branch, absent a showing of
graveabuse of discretion. The Court has no authority to restrict or limit the
exercise of congressional prerogatives granted by the Constitution. The
creation of the Joint Committee does not constitute grave abuse and
cannot be said to have deprived petitioner and the other members of
Congress of their congressional prerogatives,because under the very Rules
under attack, the decisions and final report of the said Committee shall be
subject to the approval of the joint session of both Houses of Congress,
voting separately.
 Supreme Court
Manla
EN BANC

[G.R. No. 161434. March 3, 2004]

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO,

JR., petitioners, vs. The COMMISSION ON ELECTIONS,
RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.)
and VICTORINO X. FORNIER, respondents.

[G.R. No. 161634. March 3, 2004]

ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY

POE, a.k.a. FERNANDO POE, JR., respondent.

[G. R. No. 161824. March 3, 2004]

VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON

ELECTIONS and RONALD ALLAN KELLEY POE, ALSO
KNOWN AS FERNANDO POE JR., respondents.

DECISION
VITUG, J.:

Citizenship is a treasured right conferred on those whom the state

believes are deserving of the privilege. It is a precious heritage, as well as
an inestimable acquisition,[1]that cannot be taken lightly by anyone - either
by those who enjoy it or by those who dispute it.
Before the Court are three consolidated cases, all of which raise a single
question of profound importance to the nation. The issue of citizenship is brought
up to challenge the qualifications of a presidential candidate to hold the highest
office of the land. Our people are waiting for the judgment of the Court with bated
breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the main
contenders for the presidency, a natural-born Filipino or is he not?
The moment of introspection takes us face to face with Spanish and American
colonial roots and reminds us of the rich heritage of civil law and common law
traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be
no less than distinctly Filipino.

Antecedent Case Settings

On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as

Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the
position of President of the Republic of the Philippines under the Koalisyon ng
Nagkakaisang Pilipino (KNP) Party, in the forthcoming national elections. In his
certificate of candidacy, FPJ, representing himself to be a natural-born citizen of
the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his
date of birth to be 20 August 1939 and his place of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X.
Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley
Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09 January
2004, a petition docketed SPA No. 04-003 before the Commission on Elections
("COMELEC") to disqualify FPJ and to deny due course or to cancel his certificate
of candidacy upon the thesis that FPJ made a material misrepresentation in his
certificate of candidacy by claiming to be a natural-born Filipino citizen when in
truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley
Poe, was an American, and his father, Allan Poe, was a Spanish national, being
the son of Lorenzo Pou, a Spanish subject. Granting, petitioner asseverated, that
Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino
citizenship to FPJ, the latter being an illegitimate child of an alien
mother. Petitioner based the allegation of the illegitimate birth of respondent on
two assertions - first, Allan F. Poe contracted a prior marriage to a certain Paulita
Gomez before his marriage to Bessie Kelley and, second, even if no such prior
marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth
of respondent.
In the hearing before the Third Division of the COMELEC on 19 January 2004,
petitioner, in support of his claim, presented several documentary exhibits - 1) a
copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit
executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case
for bigamy and concubinage against the father of respondent, Allan F. Poe, after
discovering his bigamous relationship with Bessie Kelley, 3) an English translation
of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan
F. Poe, 5) a certification issued by the Director of the Records Management and
Archives Office, attesting to the fact that there was no record in the National
Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines
before 1907, and 6) a certification from the Officer-In-Charge of the Archives
Division of the National Archives to the effect that no available information could
be found in the files of the National Archives regarding the birth of Allan F. Poe.
On his part, respondent, presented twenty-two documentary pieces of
evidence, the more significant ones being - a) a certification issued by Estrella M.
Domingo of the Archives Division of the National Archives that there appeared to
be no available information regarding the birth of Allan F. Poe in the registry of
births for San Carlos, Pangasinan, b) a certification issued by the
Officer-In-Charge of the Archives Division of the National Archives that no
available information about the marriage of Allan F. Poe and Paulita Gomez could
be found, c) a certificate of birth of Ronald Allan Poe, d) Original Certificate of Title
No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name
of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477
and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of death of
Lorenzo Pou, g) a copy of the purported marriage contract between Fernando
Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of
San Carlos City, Pangasinan, stating that the records of birth in the said office
during the period of from 1900 until May 1946 were totally destroyed during World
War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of
merit. Three days later, or on 26 January 2004, Fornier filed his motion for
reconsideration. The motion was denied on 06 February 2004 by the
COMELEC en banc. On 10 February 2004, petitioner assailed the decision of the
COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of
the Revised Rules of Civil Procedure. The petition, docketed G. R. No. 161824,
likewise prayed for a temporary restraining order, a writ of preliminary injunction or
any other resolution that would stay the finality and/or execution of the COMELEC
resolutions.
The other petitions, later consolidated with G. R. No. 161824, would include G.
R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs.
The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.),
and Victorino X. Fornier," and the other, docketed G. R. No. 161634, entitled
"Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.,"
both challenging the jurisdiction of the COMELEC and asserting that, under Article
VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had
original and exclusive jurisdiction to resolve the basic issue on the case.

Jurisdiction of the Court

In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the
COMELEC deny due course to or cancel FPJs certificate of candidacy for alleged
misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen)
before the COMELEC, petitioner Fornier invoked Section 78 of the Omnibus
Election Code

Section 78. Petition to deny due course to or cancel a certificate of

candidacy. --- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the ground
that any material representation contained therein as required under Section 74
hereof is false

in consonance with the general powers of COMELEC expressed in Section 52 of

the Omnibus Election Code -

Section 52. Powers and functions of the Commission on Elections. In addition

to the powers and functions conferred upon it by the Constitution, the
Commission shall have exclusive charge of the enforcement and administration
of all laws relative to the conduct of elections for the purpose of ensuring free,
orderly and honest elections -

and in relation to Article 69 of the Omnibus Election Code which would authorize
"any interested party" to file a verified petition to deny or cancel the certificate of
candidacy of any nuisance candidate.
Decisions of the COMELEC on disqualification cases may be reviewed by the
Supreme Court per Rule 64[2] in an action for certiorari under Rule 65[3] of the
Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution
also reads

"Each Commission shall decide by a majority vote of all its Members any case
or matter brought before it within sixty days from the date of its submission for
decision or resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or memorandum, required
by the rules of the Commission or by the Commission itself. Unless otherwise
provided by this Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof."

Additionally, Section 1, Article VIII, of the same Constitution provides that

judicial power is vested in one Supreme Court and in such lower courts as may be
established by law which 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.
 It is sufficiently clear that the petition brought up in G. R. No. 161824 was
aptly elevated to, and could well be taken cognizance of by, this Court. A contrary
view could be a gross denial to our people of their fundamental right to be fully
informed, and to make a proper choice, on who could or should be elected to
occupy the highest government post in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No.
161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987
Constitution in assailing the jurisdiction of the COMELEC when it took cognizance
of SPA No. 04-003 and in urging the Supreme Court to instead take on the
petitions they directly instituted before it. The Constitutional provision cited reads:

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

The provision is an innovation of the 1987 Constitution. The omission in the 1935
and the 1973 Constitution to designate any tribunal to be the sole judge of
presidential and vice-presidential contests, has constrained this Court to declare,
in Lopez vs. Roxas,[4] as not (being) justiciable controversies or disputes involving
contests on the elections, returns and qualifications of the President or
Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to
enact Republic Act No. 1793, "An Act Constituting an Independent Presidential
Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the
President-Elect and the Vice-President-Elect of the Philippines and Providing for
the Manner of Hearing the Same." Republic Act 1793 designated the Chief
Justice and the Associate Justices of the Supreme Court to be the members of
the tribunal. Although the subsequent adoption of the parliamentary form of
government under the 1973 Constitution might have implicitly affected Republic
Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived
under the present Section 4, paragraph 7, of the 1987 Constitution.
Ordinary usage would characterize a "contest" in reference to a
post-election scenario. Election contests consist of either an election protest or
a quo warranto which, although two distinct remedies, would have one objective
in view, i.e., to dislodge the winning candidate from office. A perusal of the
phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential
Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992,
would support this premise -

Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or
Vice-President of the Philippines.
Rule 13. How Initiated. - An election contest is initiated by the filing of an
election protest or a petition for quo warranto against the President or
Vice-President. An election protest shall not include a petition for quo
warranto. A petition for quo warranto shall not include an election protest.

Rule 14. Election Protest. - Only the registered candidate for President or for
Vice-President of the Philippines who received the second or third highest
number of votes may contest the election of the President or the Vice-President,
as the case may be, by filing a verified petition with the Clerk of the
Presidential Electoral Tribunal within thirty (30) days after the proclamation of
the winner.

The rules categorically speak of the jurisdiction of the tribunal over contests
relating to the election, returns and qualifications of the "President" or
"Vice-President", of the Philippines, and not of "candidates" for President or
Vice-President. A quo warranto proceeding is generally defined as being an
action against a person who usurps, intrudes into, or unlawfully holds or exercises
a public office.[5] In such context, the election contest can only contemplate a
post-election scenario. In Rule 14, only a registered candidate who would have
received either the second or third highest number of votes could file an election
protest. This rule again presupposes a post-election scenario.
It is fair to conclude that the jurisdiction of the Supreme Court, defined by
Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly
brought before it, questioning the qualifications of a candidate for the presidency
or vice-presidency before the elections are held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs.
Commission on Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio
Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be
dismissed for want of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief historical
background on the concept of citizenship.
Perhaps, the earliest understanding of citizenship was that given by Aristotle,
who, sometime in 384 to 322 B.C., described the "citizen" to refer to a man who
shared in the administration of justice and in the holding of an office.[6] Aristotle
saw its significance if only to determine the constituency of the "State," which he
described as being composed of such persons who would be adequate in number
to achieve a self-sufficient existence.[7] The concept grew to include one who
would both govern and be governed, for which qualifications like autonomy,
judgment and loyalty could be expected. Citizenship was seen to deal with rights
and entitlements, on the one hand, and with concomitant obligations, on the
other.[8] In its ideal setting, a citizen was active in public life and fundamentally
willing to submit his private interests to the general interest of society.
The concept of citizenship had undergone changes over the centuries. In the
18th century, the concept was limited, by and large, to civil citizenship, which
established the rights necessary for individual freedom, such as rights to property,
personal liberty and justice.[9] Its meaning expanded during the 19th century to
include political citizenship, which encompassed the right to participate in the
exercise of political power.[10] The 20th century saw the next stage of the
development of social citizenship, which laid emphasis on the right of the citizen
to economic well-being and social security.[11] The idea of citizenship has gained
expression in the modern welfare state as it so developed in Western Europe. An
ongoing and final stage of development, in keeping with the rapidly shrinking
global village, might well be the internationalization of citizenship.[12]

The Local Setting - from Spanish

Times to the Present

There was no such term as "Philippine citizens" during the Spanish regime
but "subjects of Spain" or "Spanish subjects."[13] In church records, the natives
were called 'indios', denoting a low regard for the inhabitants of the
archipelago. Spanish laws on citizenship became highly codified during the 19th
century but their sheer number made it difficult to point to one comprehensive
law. Not all of these citizenship laws of Spain however, were made to apply to the
Philippine Islands except for those explicitly extended by Royal Decrees.[14]
Spanish laws on citizenship were traced back to the Novisima
Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the law
was extended to the Philippines remained to be the subject of differing views
among experts;[15] however, three royal decrees were undisputably made
applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August
1841,[16] the Royal Decree of 23 August 1868 specifically defining the political
status of children born in the Philippine Islands,[17] and finally, the Ley Extranjera
de Ultramar of 04 July 1870, which was expressly made applicable to the
Philippines by the Royal Decree of 13 July 1870.[18]
The Spanish Constitution of 1876 was never extended to the Philippine
Islands because of the express mandate of its Article 89, according to which the
provisions of the Ultramaramong which this country was included, would be
governed by special laws.[19]
It was only the Civil Code of Spain, made effective in this jurisdiction on 18
December 1889, which came out with the first categorical enumeration of who
were Spanish citizens. -

(a) Persons born in Spanish territory,

 (b) Children of a Spanish father or mother, even if they were born
outside of Spain,

(c) Foreigners who have obtained naturalization papers,

(d) Those who, without such papers, may have become domiciled
inhabitants of any town of the Monarchy. [20]

The year 1898 was another turning point in Philippine history. Already in the
state of decline as a superpower, Spain was forced to so cede her sole colony in
the East to an upcoming world power, the United States. An accepted principle of
international law dictated that a change in sovereignty, while resulting in an
abrogation of all political laws then in force, would have no effect on civil laws,
which would remain virtually intact.
The Treaty of Paris was entered into on 10 December 1898 between Spain
and the United States.[21] Under Article IX of the treaty, the civil rights and political
status of the native inhabitants of the territories ceded to the United States would
be determined by its Congress -

"Spanish subjects, natives of the Peninsula, residing in the territory over which
Spain by the present treaty relinquishes or cedes her sovereignty may remain in
such territory or may remove therefrom, retaining in either event all their rights
of property, including the right to sell or dispose of such property or of its
proceeds; and they shall also have the right to carry on their industry,
commerce, and professions, being subject in respect thereof to such laws as are
applicable to foreigners. In case they remain in the territory they may preserve
their allegiance to the Crown of Spain by making, before a court of record,
within a year from the date of the exchange of ratifications of this treaty, a
declaration of their decision to preserve such allegiance; in default of which
declaration they shall be held to have renounced it and to have adopted the
nationality of the territory in which they reside.

Thus

"The civil rights and political status of the native inhabitants of the territories
hereby ceded to the United States shall be determined by the Congress." [22]

Upon the ratification of the treaty, and pending legislation by the United States
Congress on the subject, the native inhabitants of the Philippines ceased to be
Spanish subjects. Although they did not become American citizens, they, however,
also ceased to be "aliens" under American laws and were thus issued passports
describing them to be citizens of the Philippines entitled to the protection of the
United States.
 The term "citizens of the Philippine Islands" appeared for the first time in the
Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of
1902, the first comprehensive legislation of the Congress of the United States on
the Philippines -

".... that all inhabitants of the Philippine Islands continuing to reside therein,
who were Spanish subjects on the 11th day of April, 1891, and then resided in
said Islands, and their children born subsequent thereto, shall be deemed and
held to be citizens of the Philippine Islands and as such entitled to the
protection of the United States, except such as shall have elected to preserve
their allegiance to the Crown of Spain in accordance with the provisions of the
treaty of peace between the United States and Spain, signed at Paris, December
tenth eighteen hundred and ninety eight." [23]

Under the organic act, a citizen of the Philippines was one who was an inhabitant
of the Philippines, and a Spanish subject on the 11th day of April 1899. The term
inhabitant was taken to include 1) a native-born inhabitant, 2) an inhabitant who
was a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish
papers on or before 11 April 1899.[24]
Controversy arose on to the status of children born in the Philippines from 11
April 1899 to 01 July 1902, during which period no citizenship law was extant in
the Philippines. Weight was given to the view, articulated in jurisprudential writing
at the time, that the common law principle of jus soli, otherwise also known as the
principle of territoriality, operative in the United States and England, governed
those born in the Philippine Archipelago within that period.[25] More about this later.
In 23 March 1912, the Congress of the United States made the following
amendment to the Philippine Bill of 1902 -

"Provided, That the Philippine Legislature is hereby authorized to provide by

law for the acquisition of Philippine citizenship by those natives of the
Philippine Islands who do not come within the foregoing provisions, the natives
of other insular possession of the United States, and such other persons residing
in the Philippine Islands who would become citizens of the United States, under
the laws of the United States, if residing therein." [26]

With the adoption of the Philippine Bill of 1902, the concept of "Philippine
citizens" had for the first time crystallized. The word "Filipino" was used by William
H. Taft, the first Civil Governor General in the Philippines when he initially made
mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the
Philippine Autonomy Act, also known as the Jones Law restated virtually the
provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in
1912 -
That all inhabitants of the Philippine Islands who were Spanish subjects on
the eleventh day of April, eighteen hundred and ninety-nine, and then resided
in said Islands, and their children born subsequently thereto, shall be deemed
and held to be citizens of the Philippine Islands, except such as shall have
elected to preserve their allegiance to the Crown of Spain in accordance with
the provisions of the treaty of peace between the United States and Spain,
signed at Paris December tenth, eighteen hundred and ninety-eight and except
such others as have since become citizens of some other country; Provided,
That the Philippine Legislature, herein provided for, is hereby authorized to
provide for the acquisition of Philippine citizenship by those natives of the
Philippine Islands who do not come within the foregoing provisions, the natives
of the insular possessions of the United States, and such other persons residing
in the Philippine Islands who are citizens of the United States, or who could
become citizens of the United States under the laws of the United States, if
residing therein."

Under the Jones Law, a native-born inhabitant of the Philippines was deemed
to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain
on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that
date, not a citizen of some other country.
While there was, at one brief time, divergent views on whether or not jus
soli was a mode of acquiring citizenship, the 1935 Constitution brought to an end
to any such link with common law, by adopting, once and for all, jus sanguinis or
blood relationship as being the basis of Filipino citizenship -

Section 1, Article III, 1935 Constitution. The following are citizens of the
Philippines -

(1) Those who are citizens of the Philippine Islands at the time of the adoption
of this Constitution

(2) Those born in the Philippines Islands of foreign parents who, before the
adoption of this Constitution, had been elected to public office in the Philippine
Islands.

(3) Those whose fathers are citizens of the Philippines.

(4) Those whose mothers are citizens of the Philippines and upon reaching the
age of majority, elect Philippine citizenship.

(5) Those who are naturalized in accordance with law.

 Subsection (4), Article III, of the 1935 Constitution, taken together with
existing civil law provisions at the time, which provided that women would
automatically lose their Filipino citizenship and acquire that of their foreign
husbands, resulted in discriminatory situations that effectively incapacitated the
women from transmitting their Filipino citizenship to their legitimate children and
required illegitimate children of Filipino mothers to still elect Filipino citizenship
upon reaching the age of majority. Seeking to correct this anomaly, as well as fully
cognizant of the newly found status of Filipino women as equals to men, the
framers of the 1973 Constitution crafted the provisions of the new Constitution on
citizenship to reflect such concerns -

Section 1, Article III, 1973 Constitution - The following are citizens of the
Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.

(2) Those whose fathers or mothers are citizens of the Philippines.

(3) Those who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five.

(4) Those who are naturalized in accordance with law.

For good measure, Section 2 of the same article also further provided that

"A female citizen of the Philippines who marries an alien retains her Philippine
citizenship, unless by her act or omission she is deemed, under the law to have
renounced her citizenship."

The 1987 Constitution generally adopted the provisions of the 1973

Constitution, except for subsection (3) thereof that aimed to correct the irregular
situation generated by the questionable proviso in the 1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:

The following are citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.

(2) Those whose fathers or mothers are citizens of the Philippines.

(3) Those born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and
(4) Those who are naturalized in accordance with law.

The Case Of FPJ

Section 2, Article VII, of the 1987 Constitution expresses:

"No person may be elected President unless he is a natural-born citizen of the

Philippines, a registered voter, able to read and write, at least forty years of age
on the day of the election, and a resident of the Philippines for at least ten years
immediately preceding such election."

The term "natural-born citizens," is defined to include "those who are citizens
of the Philippines from birth without having to perform any act to acquire or perfect
their Philippine citizenship."[27]
The date, month and year of birth of FPJ appeared to be 20 August 1939
during the regime of the 1935 Constitution. Through its history, four modes of
acquiring citizenship - naturalization, jus soli, res judicata and jus sanguinis[28] had
been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to
being a natural-born citizen of the Philippines.Jus soli, per Roa vs. Collector of
Customs[29] (1912), did not last long. With the adoption of the 1935 Constitution
and the reversal of Roa in Tan Chong vs. Secretary of Labor[30] (1947), jus
sanguinis or blood relationship would now become the primary basis of citizenship
by birth.
Documentary evidence adduced by petitioner would tend to indicate that the
earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo
Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth
of Lorenzo Pou had not been presented in evidence, his death certificate,
however, identified him to be a Filipino, a resident of San Carlos, Pangasinan, and
84 years old at the time of his death on 11 September 1954. The certificate of birth
of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an
Espaol father, Lorenzo Pou, and a mestiza Espaol mother, Marta
Reyes. Introduced by petitioner was an uncertified copy of a supposed certificate
of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The
marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their
marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was
stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie
Kelley to be twenty-two years old, unmarried, and an American citizen. The birth
certificate of FPJ, would disclose that he was born on 20 August 1939 to Allan F.
Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen,
twenty-one years old and married.
Considering the reservations made by the parties on the veracity of some of
the entries on the birth certificate of respondent and the marriage certificate of his
parents, the only conclusions that could be drawn with some degree of certainty
from the documents would be that -

1. The parents of FPJ were Allan F. Poe and Bessie Kelley;

2. FPJ was born to them on 20 August 1939;

3. Allan F. Poe and Bessie Kelley were married to each other on 16

September, 1940;

4. The father of Allan F. Poe was Lorenzo Poe; and

5. At the time of his death on 11 September 1954, Lorenzo Poe was 84

years old.

Would the above facts be sufficient or insufficient to establish the fact that FPJ
is a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and
Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou
are documents of public record in the custody of a public officer. The documents
have been submitted in evidence by both contending parties during the
proceedings before the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit
"3" for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was
submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou
was submitted by respondent as his Exhibit "5." While the last two documents
were submitted in evidence for respondent, the admissibility thereof, particularly in
reference to the facts which they purported to show, i.e., the marriage certificate in
relation to the date of marriage of Allan F. Poe to Bessie Kelley and the death
certificate relative to the death of Lorenzo Pou on 11 September 1954 in San
Carlos, Pangasinan, were all admitted by petitioner, who had utilized those
material statements in his argument. All three documents were certified true
copies of the originals.

Section 3, Rule 130, Rules of Court states that -

Original document must be produced; exceptions. - When the subject of inquiry

is the contents of a document, no evidence shall be admissible other than the
original document itself, except in the following cases:

xxxxxxxxx

(d) When the original is a public record in the custody of a public office or is
recorded in a public office.
Being public documents, the death certificate of Lorenzo Pou, the marriage
certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of
FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of the
Rules of Court provides:

Entries in official records. Entries in official records made in the performance

of his duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima facie evidence of
the facts therein stated.

The trustworthiness of public documents and the value given to the entries
made therein could be grounded on 1) the sense of official duty in the preparation
of the statement made, 2) the penalty which is usually affixed to a breach of that
duty, 3) the routine and disinterested origin of most such statements, and 4) the
publicity of record which makes more likely the prior exposure of such errors as
might have occurred.[31]
The death certificate of Lorenzo Pou would indicate that he died on 11
September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus
be assumed that Lorenzo Pou was born sometime in the year 1870 when the
Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou
was not in the Philippines during the crucial period of from 1898 to 1902
considering that there was no existing record about such fact in the Records
Management and Archives Office. Petitioner, however, likewise failed to show that
Lorenzo Pou was at any other place during the same period. In his death
certificate, the residence of Lorenzo Pou was stated to be San Carlos,
Pangasinan. In the absence of any evidence to the contrary, it should be sound to
conclude, or at least to presume, that the place of residence of a person at the
time of his death was also his residence before death. It would be extremely
doubtful if the Records Management and Archives Office would have had
complete records of all residents of the Philippines from 1898 to 1902.

Proof of Paternity and Filiation

Under Civil Law.

Petitioner submits, in any case, that in establishing filiation (relationship or

civil status of the child to the father [or mother]) or paternity (relationship or civil
status of the father to the child) of an illegitimate child, FPJ evidently being an
illegitimate son according to petitioner, the mandatory rules under civil law must
be used.
Under the Civil Code of Spain, which was in force in the Philippines from 08
December 1889 up until the day prior to 30 August 1950 when the Civil Code of
the Philippines took effect, acknowledgment was required to establish filiation or
paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial
or compulsory acknowledgment was possible only if done during the lifetime of
the putative parent; voluntary acknowledgment could only be had in a record of
birth, a will, or a public document.[32] Complementary to the new code was Act No.
3753 or the Civil Registry Law expressing in Section 5 thereof, that -

In case of an illegitimate child, the birth certificate shall be signed and sworn
to jointly by the parents of the infant or only by the mother if the father
refuses. In the latter case, it shall not be permissible to state or reveal in the
document the name of the father who refuses to acknowledge the child, or to
give therein any information by which such father could be identified.

In order that the birth certificate could then be utilized to prove voluntary
acknowledgment of filiation or paternity, the certificate was required to be signed
or sworn to by the father. The failure of such requirement rendered the same
useless as being an authoritative document of recognition.[33] In Mendoza vs.
Mella,[34] the Court ruled -

"Since Rodolfo was born in 1935, after the registry law was enacted, the
question here really is whether or not his birth certificate (Exhibit 1), which is
merely a certified copy of the registry record, may be relied upon as sufficient
proof of his having been voluntarily recognized. No such reliance, in our
judgment, may be placed upon it. While it contains the names of both parents,
there is no showing that they signed the original, let alone swore to its contents
as required in Section 5 of Act No. 3753. For all that might have happened, it
was not even they or either of them who furnished the data to be entered in the
civil register. Petitioners say that in any event the birth certificate is in the
nature of a public document wherein voluntary recognition of a natural child
may also be made, according to the same Article 131. True enough, but in such
a case, there must be a clear statement in the document that the parent
recognizes the child as his or her own."

In the birth certificate of respondent FPJ, presented by both parties, nowhere

in the document was the signature of Allan F. Poe found. There being no will
apparently executed, or at least shown to have been executed, by decedent Allan
F. Poe, the only other proof of voluntary recognition remained to be "some other
public document." In Pareja vs. Pareja,[35] this Court defined what could constitute
such a document as proof of voluntary acknowledgment:

"Under the Spanish Civil Code there are two classes of public documents,
those executed by private individuals which must be authenticated by notaries,
and those issued by competent public officials by reason of their office. The
public document pointed out in Article 131 as one of the means by which
recognition may be made belongs to the first class."
 Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or recognition of
illegitimate children into voluntary, legal or compulsory. Voluntary recognition was
required to be expressedly made in a record of birth, a will, a statement before a
court of record or in any authentic writing. Legal acknowledgment took place in
favor of full blood brothers and sisters of an illegitimate child who was recognized
or judicially declared as natural. Compulsory acknowledgment could be
demanded generally in cases when the child had in his favor any evidence to
prove filiation. Unlike an action to claim legitimacy which would last during the
lifetime of the child, and might pass exceptionally to the heirs of the child, an
action to claim acknowledgment, however, could only be brought during the
lifetime of the presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic
writing," so as to be an authentic writing for purposes of voluntary recognition,
simply as being a genuine or indubitable writing of the father. The term would
include a public instrument (one duly acknowledged before a notary public or
other competent official) or a private writing admitted by the father to be his.
The Family Code has further liberalized the rules; Article 172, Article 173, and
Article 175 provide:

Art. 172. The filiation of legitimate children is established by any of the

following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private

handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved
by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

Art. 173. The action to claim legitimacy may be brought by the child during his
or her lifetime and shall be transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the heirs shall have a period of
five years within which to institute the action.

The action already commenced by the child shall survive notwithstanding the
death of either or both of the parties.
x x x x x x x x x.

Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same, evidence as legitimate children.

The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged parent.

The provisions of the Family Code are retroactively applied; Article 256 of the
code reads:

"Art. 256. This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the Civil Code
or other laws.

Thus, in Vda. de Sy-Quia vs. Court of Appeals,[36] the Court has ruled:

"We hold that whether Jose was a voluntarily recognized natural child should
be decided under Article 278 of the Civil Code of the Philippines. Article 2260
of that Code provides that 'the voluntary recognition of a natural child shall take
place according to this Code, even if the child was born before the effectivity of
this body of laws' or before August 30, 1950. Hence, Article 278 may be given
retroactive effect."

It should be apparent that the growing trend to liberalize the acknowledgment

or recognition of illegitimate children is an attempt to break away from the
traditional idea of keeping well apart legitimate and non-legitimate relationships
within the family in favor of the greater interest and welfare of the child. The
provisions are intended to merely govern the private and personal affairs of the
family. There is little, if any, to indicate that the legitimate or illegitimate civil status
of the individual would also affect his political rights or, in general, his relationship
to the State. While, indeed, provisions on "citizenship" could be found in the Civil
Code, such provisions must be taken in the context of private relations, the
domain of civil law; particularly -

"Civil Law is that branch of law which has for its double purpose the
organization of the family and the regulation of property. It has thus [been]
defined as the mass of precepts which determine and regulate the relations of
assistance, authority and obedience among members of a family, and those
which exist among members of a society for the protection of private
interests."[37]

In Yaez de Barnuevo vs. Fuster,[38] the Court has held:

"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating
to family rights and duties, or to the status, condition and legal capacity of
persons, govern Spaniards although they reside in a foreign country; that, in
consequence, 'all questions of a civil nature, such as those dealing with the
validity or nullity of the matrimonial bond, the domicile of the husband and
wife, their support, as between them, the separation of their properties, the rules
governing property, marital authority, division of conjugal property, the
classification of their property, legal causes for divorce, the extent of the latter,
the authority to decree it, and, in general, the civil effects of marriage and
divorce upon the persons and properties of the spouses, are questions that are
governed exclusively by the national law of the husband and wife."

The relevance of "citizenship" or "nationality" to Civil Law is best exemplified

in Article 15 of the Civil Code, stating that -

"Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though
living abroad" -

that explains the need to incorporate in the code a reiteration of the Constitutional
provisions on citizenship. Similarly, citizenship is significant in civil relationships
found in different parts of the Civil Code,[39] such as on successional rights and
family relations.[40] In adoption, for instance, an adopted child would be considered
the child of his adoptive parents and accorded the same rights as their legitimate
child but such legal fiction extended only to define his rights under civil law[41] and
not his political status.
Civil law provisions point to an obvious bias against illegitimacy. This
discriminatory attitude may be traced to the Spanish family and property laws,
which, while defining proprietary and successional rights of members of the family,
provided distinctions in the rights of legitimate and illegitimate children. In the
monarchial set-up of old Spain, the distribution and inheritance of titles and wealth
were strictly according to bloodlines and the concern to keep these bloodlines
uncontaminated by foreign blood was paramount.
These distinctions between legitimacy and illegitimacy were codified in the
Spanish Civil Code, and the invidious discrimination survived when the Spanish
Civil Code became the primary source of our own Civil Code. Such distinction,
however, remains and should remain only in the sphere of civil law and not unduly
impede or impinge on the domain of political law.
The proof of filiation or paternity for purposes of determining his citizenship
status should thus be deemed independent from and not inextricably tied up with
that prescribed for civil law purposes. The Civil Code or Family Code provisions
on proof of filiation or paternity, although good law, do not have preclusive effects
on matters alien to personal and family relations. The ordinary rules on evidence
could well and should govern. For instance, the matter about pedigree is not
necessarily precluded from being applicable by the Civil Code or Family Code
provisions.
Section 39, Rule 130, of the Rules of Court provides -

Act or Declaration about pedigree. The act or declaration of a person deceased,

or unable to testify, in respect to the pedigree of another person related to him
by birth or marriage, may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is shown by evidence
other than such act or declaration. The word `pedigree includes relationship,
family genealogy, birth, marriage, death, the dates when and the places where
these facts occurred, and the names of the relatives. It embraces also facts of
family history intimately connected with pedigree.

For the above rule to apply, it would be necessary that (a) the declarant is
already dead or unable to testify, (b) the pedigree of a person must be at issue, (c)
the declarant must be a relative of the person whose pedigree is in question, (d)
declaration must be made before the controversy has occurred, and (e) the
relationship between the declarant and the person whose pedigree is in question
must be shown by evidence other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister
of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be
accepted to prove the acts of Allan F. Poe, recognizing his own paternal
relationship with FPJ, i.e, living together with Bessie Kelley and his children
(including respondent FPJ) in one house, and as one family -

"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in
Stockton, California, U.S.A., after being sworn in accordance with law do
hereby declare that:

1. I am the sister of the late Bessie Kelley Poe.

2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe,
more popularly known in the Philippines as `Fernando Poe, Jr., or
`FPJ.

4. Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's
Hospital, Magdalena Street, Manila.

xxxxxxxxx
 7. Fernando Poe Sr., and my sister Bessie, met and became engaged
while they were students at the University of the Philippines in
1936. I was also introduced to Fernando Poe, Sr., by my sister that
same year.

8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.

9. Fernando Poe, Sr., my sister Bessie and their first three children,
Elizabeth, Ronald, Allan and Fernando II, and myself lived
together with our mother at our family's house on Dakota St. (now
Jorge Bocobo St.), Malate until the liberation of Manila in 1945,
except for some months between 1943-1944.

10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4)
more children after Ronald Allan Poe.

xxxxxxxxx

18. I am executing this Declaration to attest to the fact that my nephew,

Ronald Allan Poe is a natural born Filipino, and that he is the
legitimate child of Fernando Poe, Sr.

Done in City of Stockton, California, U.S.A., this 12th day of January

2004.

Ruby Kelley Mangahas

Declarant

DNA Testing

In case proof of filiation or paternity would be unlikely to satisfactorily establish

or would be difficult to obtain, DNA testing, which examines genetic codes
obtained from body cells of the illegitimate child and any physical residue of the
long dead parent could be resorted to. A positive match would clear up filiation or
paternity. In Tijing vs. Court of Appeals,[42] this Court has acknowledged the strong
weight of DNA testing -

"Parentage will still be resolved using conventional methods unless we adopt

the modern and scientific ways available. Fortunately, we have now the facility
and expertise in using DNA test for identification and parentage testing. The
University of the Philippines Natural Science Research Institute (UP-NSRI)
DNA Analysis Laboratory has now the capability to conduct DNA typing using
short tandem repeat (STR) analysis. The analysis is based on the fact that the
DNA of a child/person has two (2) copies, one copy from the mother and the
other from the father. The DNA from the mother, the alleged father and the
child are analyzed to establish parentage. Of course, being a novel scientific
technique, the use of DNA test as evidence is still open to challenge. Eventually,
as the appropriate case comes, courts should not hesitate to rule on the
admissibility of DNA evidence. For it was said, that courts should apply the
results of science when competently obtained in aid of situations presented,
since to reject said result is to deny progress."

Petitioners Argument For

Jurisprudential Conclusiveness

Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he
could not have transmitted his citizenship to respondent FPJ, the latter being an
illegitimate child. According to petitioner, prior to his marriage to Bessie Kelley,
Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez,
making his subsequent marriage to Bessie Kelley bigamous and respondent FPJ
an illegitimate child. The veracity of the supposed certificate of marriage between
Allan F. Poe and Paulita Gomez could be most doubtful at best. But the
documentary evidence introduced by no less than respondent himself, consisting
of a birth certificate of respondent and a marriage certificate of his parents showed
that FPJ was born on 20 August 1939 to a Filipino father and an American mother
who were married to each other a year later, or on 16 September 1940. Birth to
unmarried parents would make FPJ an illegitimate child. Petitioner contended that
as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie
Kelley, an American citizen, basing his stand on the ruling of this Court in Morano
vs. Vivo,[43] citing Chiongbian vs. de Leon[44] and Serra vs. Republic.[45]
On the above score, the disquisition made by amicus curiae Joaquin G.
Bernas, SJ, is most convincing; he states -

"We must analyze these cases and ask what the lis mota was in each of them. If
the pronouncement of the Court on jus sanguinis was on the lis mota, the
pronouncement would be a decision constituting doctrine under the rule
of stare decisis. But if the pronouncement was irrelevant to the lis mota, the
pronouncement would not be a decision but a mere obiter dictum which did not
establish doctrine. I therefore invite the Court to look closely into these cases.

First, Morano vs. Vivo. The case was not about an illegitimate child of a
Filipino father. It was about a stepson of a Filipino, a stepson who was the child
of a Chinese mother and a Chinese father. The issue was whether the stepson
followed the naturalization of the stepfather. Nothing about jus
sanguinis there. The stepson did not have the blood of the naturalized
stepfather.

Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of
a Filipino father. It was about a legitimate son of a father who had become
Filipino by election to public office before the 1935 Constitution pursuant to
Article IV, Section 1(2) of the 1935 Constitution. No one was illegitimate here.

Third, Serra vs. Republic. The case was not about the illegitimate son of a
Filipino father. Serra was an illegitimate child of a Chinese father and a Filipino
mother. The issue was whether one who was already a Filipino because of his
mother who still needed to be naturalized. There is nothing there about
invidious jus sanguinis.

Finally, Paa vs. Chan. This is a more complicated case. The case was about
[46]

the citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin
Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese
father and a Filipino mother. Quintin therefore argued that he got his
citizenship from Leoncio, his father. But the Supreme Court said that there was
no valid proof that Leoncio was in fact the son of a Filipina mother. The Court
therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino,
neither was his son Quintin. Quintin therefore was not only not a natural-born
Filipino but was not even a Filipino.

The Court should have stopped there. But instead it followed with an obiter
dictum. The Court said obiter that even if Leoncio, Quintin's father, were
Filipino, Quintin would not be Filipino because Quintin was illegitimate. This
statement about Quintin, based on a contrary to fact assumption, was absolutely
unnecessary for the case. x x x It was obiter dictum, pure and simple, simply
repeating the obiter dictum in Morano vs. Vivo.

xxxxxxxxx

"Aside from the fact that such a pronouncement would have no textual
foundation in the Constitution, it would also violate the equal protection clause
of the Constitution not once but twice. First, it would make an illegitimate
distinction between a legitimate child and an illegitimate child, and second, it
would make an illegitimate distinction between the illegitimate child of a
Filipino father and the illegitimate child of a Filipino mother.
The doctrine on constitutionally allowable distinctions was established long ago
by People vs. Cayat. I would grant that the distinction between legitimate
[47]

children and illegitimate children rests on real differences. x x x But real

differences alone do not justify invidious distinction. Real differences may
justify distinction for one purpose but not for another purpose.

x x x What is the relevance of legitimacy or illegitimacy to elective public

service? What possible state interest can there be for disqualifying an
illegitimate child from becoming a public officer. It was not the fault of the
child that his parents had illicit liaison. Why deprive the child of the fullness of
political rights for no fault of his own? To disqualify an illegitimate child from
holding an important public office is to punish him for the indiscretion of his
parents. There is neither justice nor rationality in that. And if there is neither
justice nor rationality in the distinction, then the distinction transgresses the
equal protection clause and must be reprobated.

The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this
Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have
expressed similar views.The thesis of petitioner, unfortunately hinging solely on
pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the
citizenship of its mother, it did so for the benefit the child. It was to ensure a
Filipino nationality for the illegitimate child of an alien father in line with the
assumption that the mother had custody, would exercise parental authority and
had the duty to support her illegitimate child. It was to help the child, not to
prejudice or discriminate against him.
The fact of the matter perhaps the most significant consideration is that the
1935 Constitution, the fundamental law prevailing on the day, month and year of
birth of respondent FPJ, can never be more explicit than it is. Providing neither
conditions nor distinctions, the Constitution states that among the citizens of the
Philippines are those whose fathers are citizens of the Philippines. There utterly is
no cogent justification to prescribe conditions or distinctions where there clearly
are none provided.

In Sum

(1) The Court, in the exercise of its power of judicial review, possesses
jurisdiction over the petition in G. R. No. 161824, filed under Rule 64, in relation to
Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the
resolution of the COMELEC for alleged grave abuse of discretion in dismissing,
for lack of merit, the petition in SPA No. 04-003 which has prayed for the
disqualification of respondent FPJ from running for the position of President in the
10th May 2004 national elections on the contention that FPJ has committed
material representation in his certificate of candidacy by representing himself to
be a natural-born citizen of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and prematurity, the
petitions in G. R. No. 161434 and No. 161634 both having been directly elevated
to this Court in the latters capacity as the only tribunal to resolve a presidential
and vice-presidential election contest under the Constitution. Evidently, the
primary jurisdiction of the Court can directly be invoked only after, not before, the
elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion
has been committed by the COMELEC, it is necessary to take on the matter of
whether or not respondent FPJ is a natural-born citizen, which, in turn, depended
on whether or not the father of respondent, Allan F. Poe, would have himself been
a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of
respondent prevents him from taking after the Filipino citizenship of his putative
father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be
drawn from the presumption that having died in 1954 at 84 years old, Lorenzo
would have been born sometime in the year 1870, when the Philippines was
under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon
his death in 1954, in the absence of any other evidence, could have well been his
place of residence before death, such that Lorenzo Pou would have benefited
from the en masse Filipinization that the Philippine Bill had effected in 1902. That
citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F.
Poe, father of respondent FPJ. The 1935 Constitution, during which regime
respondent FPJ has seen first light, confers citizenship to all persons whose
fathers are Filipino citizens regardless of whether such children are legitimate or
illegitimate.
(4) But while the totality of the evidence may not establish conclusively that
respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand
still would preponderate in his favor enough to hold that he cannot be held guilty of
having made a material misrepresentation in his certificate of candidacy in
violation of Section 78, in relation to Section 74, of the Omnibus Election Code.
Petitioner has utterly failed to substantiate his case before the Court,
notwithstanding the ample opportunity given to the parties to present their position
and evidence, and to prove whether or not there has been material
misrepresentation, which, as so ruled in Romualdez-Marcos vs.
COMELEC,[48] must not only be material, but also deliberate and willful.
WHEREFORE, the Court RESOLVES to DISMISS
1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B.
Desiderio, Jr., Petitioners, versus Commission on Elections, Ronald Allan Kelley
Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R.
No. 161634, entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan Kelley
Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction.
 2. G. R. No. 161824, entitled Victorino X. Fornier, Petitioner, versus Hon.
Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando
Poe, Jr., for failure to show grave abuse of discretion on the part of respondent
Commission on Elections in dismissing the petition in SPA No. 04-003.
No Costs.
SO ORDERED.
Davide, Jr., C.J., see separate opinion, concurring.
Puno, J., on leave but was allowed to vote; see separate opinion.
Panganiban, J., on official leave; allowed to vote but did not send his vote on
the matter.
Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should
have been remanded.
Ynares-Santiago, J., concurs and also with J. Punos separate opinion.
Sandoval-Gutierrez, J., concurs, please see separate opinion.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., concurs, please see separate opinion.
Corona, J., joins the dissenting opinion of Justice Morales.
Carpio-Morales, J., see dissenting opinion.
Callejo, Sr., J., please see concurring opinion.
Azcuna, J., concurs in a separate opinion.
Tinga, J., dissents per separate opinion.

[1]
Tan Chong vs. The Secretary of Labor, 45 O.G. No. 31, 1269.
[2]
Sec. 2. Mode of review. A judgment or final order or resolution of the Commission on Elections
and the Commission on Audit may be brought by the aggrieved party to the Supreme
Court on certiorari under Rule 65, except as hereinafter provided. (Rule 64)
[3]
Sec. 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as law and justice may
require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and
a sworn certification of non-forum shopping as provided in the third paragraph of section 3,
Rule 46. (Rule 65)
[4]
17 SCRA 761.
[5]
See Rule 66, Revised Rules of Civil Procedure.
[6]
The Politics of Aristotle, edited and translated by Ernest Barker, Oxford University Press, London,
1946. at p. 93.
[7]
Id., at 95.
[8]
Introduction, The Conditions of Citizenship, edited by Bart Van Steenbergen, Sage Publications,
London, Thousand Oaks, New Delhi (1994).
[9]
Ibid.
[10]
Ibid.
[11]
Ibid.
[12]
Ibid.
[13]
Under the codified Novisima Recopilacion promulgated in Spain in 1805, the following were
considered denizens (vecinos) " all foreigners who obtained the privilege of naturalization,
those who were born in these kingdoms, those who residing therein may be converted to
the holy Catholic faith; those, being self-supporting, established their domicile therein; and
in the case of a foreign woman who married a native man, she thereby becomes subject to
the same laws and acquires the same domicile as her husband; those who establish
themselves in the country by acquiring real property; those who have trade or profession
and go there to practice the same; also those who practice some mechanical trade therein
or keep a retail store;....those who reside for a period of ten years in a home of his own;
and also those foreigners who, in accordance with the common law, royal orders and
other laws of the kingdoms, may have become naturalized or acquired residence therein.
(Leon T. Garcia, The Problems of Citizenship in the Philippines, Rex Bookstore, 1949, at p.
4)
[14]
Garcia, supra., at p. 3.
[15]
Justices Malcolm, Recto and Florentino Torres believed that the law was effective in the
Philippines. Those who entertained the contrary view were Justices Imperial and Villareal.
(Garcia, supra., at 4.).
[16]
Garcia, supra., pp. 5-6.
[17]
Under the Royal Decree of August 23, 1868, the following were considered foreigners --- (1)
The legitimate and recognized natural children of a father who belongs to another
independent state, and the unrecognized and natural and other illegitimate children of a
mother belonging to another State born outside of the Spanish dominions, (2) The children
specified in the preceding paragraph, born in the Spanish dominions or on board Spanish
vessels on the high seas if they do not, on attaining the age of majority fixed in the laws of
the Kingdom, elect Spanish nationality, (3) Those being Spaniards, acquire another
nationality, as well by renouncing the first as by accepting employment, from another
government without the authority of the sovereign and (4) The woman who contracts
marriage with a subject of another State. (Garcia, supra., pp. 6-7)
[18]
Under the law, the following were foreigners (a) All persons born of foreign parents outside of
the Spanish territory; (b) Those born outside of the Spanish territory of foreign fathers and
Spanish mothers while they do not claim Spanish nationality, (3) Those born in Spanish
territory of foreign parents or foreign fathers and Spanish mothers while they do not make
that claim, (4) Spaniards who may have lost their nationality, (5) Those born outside of the
Spanish territory of parents who may have lost their Spanish nationality; and (6), the
Spanish woman married to a foreigner. (Garcia, supra., p. 7)
[19]
Velayo, infra., p. 11.
[20]
Article 17, The Civil Code of Spain.
[21]
Garcia, supra, pp. 6-7.
[22]
Ramon M. Velayo, Philippine Citizenship And Naturalization, Central Book Supply, Manila
(1965), pp. 22-23.
[23]
Ibid., p. 30.
[24]
Garcia, supra, at pp. 31-32.
[25]
Garcia, supra, pp. 23-26.
[26]
Velayo, supra, p. 31
[27]
Section 2, Article IV, 1987 Constitution.
[28]
Per amicus curiae Joaquin G. Bernas, SJ.
[29]
23 Phil 315 (1912).
[30]
Supra., which held that jus soli was never applied in the Philippines.
[31]
Antillon vs. Barcelon, 37 Phil 148.
[32]
Article 131 Old Civil Code.
[33]
Dayrit vs. Piccio, 92 Phil 729.
[34]
17 SCRA 788.
[35]
95 Phil 167.
[36]
125 SCRA 835.
[37]
Vicente J. Fransisco, Civil Code of the Philippines, Bk I, 1953 at p. 5
[38]
29 Phil 606.
[39]
Article 16. Real property as well as personal property is subject to the law of the country where it
is situated.
However, intestate and testamentary successions, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose succession is
under consideration, whatever may be the nature of the property and regardless of the
country wherein said property may be found.
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic
of the Philippines in a foreign country, the solemnities established by Philippine laws shall
be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have for their object
public order, public policy and good customs, shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.
Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the
forms established by the law of the country in which he may be. Such will may be probated
in the Philippines.
Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those which this Code prescribes.
Article 817. A will made in the Philippines by a citizen or subject of another country, which is
executed in accordance with the law of the country of which he is a citizen or subject, and
 which might be proved and allowed by the law of his own country, shall have the same
effect as if executed according to the laws of the Philippines.
Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country
shall not be valid in the Philippines, even though authorized by the laws of the country
where they may have been executed.
Article 1039. Capacity to succeed is governed by the law of the nation of the decedent.
[40]
Article 10. Marriages between Filipino citizens abroad may be solemnized by a consul general,
consul or vice-consul of the Republic of the Philippines. The issuance of the marriage
license and the duties of the local civil registrar and of the solemnizing officer with regard
to the celebration of marriage shall be performed by said consular official.
Article 21. When either or both of the contracting parties are citizens of a foreign country, it shall be
necessary for them before a marriage license can be obtained, to submit a certificate of
legal capacity to contract marriage, issued by their respective diplomatic or consular
officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity
herein required, submit an affidavit stating the circumstances showing such capacity to
contract marriage.
Article 26. x x x
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under Philippine law.
Article 80. In the absence of a contrary stipulation in the marriage settlements, the property
relations of the spouses shall be governed by Philippine laws, regardless of the place of
the celebration of the marriage and their residence. This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in the
Philippines and executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting
property situated in a foreign country whose laws require different formalities for their
extrinsic validity.
[41]
See Ching Leng vs. Galang, L-11931, October 1958, unreported.
[42]
354 SCRA 17.
[43]
20 SCRA 562, Paa vs. Chan 21 SCRA 753.
[44]
82 Phil. 771.
[45]
91 Phil. 914, unreported.
[46]
21 SCRA 753.
[47]
68 Phil 12.
[48]
248 SCRA 300 (1995)
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 191618 November 23, 2010

ATTY. ROMULO B. MACALINTAL, Petitioner,

vs.
PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.

DECISION

NACHURA, J.:

Confronting us is an undesignated petition1 filed by Atty. Romulo B. Macalintal (Atty.

Macalintal), that questions the constitution of the Presidential Electoral Tribunal (PET) as an
illegal and unauthorized progeny of Section 4,2Article VII of the Constitution:

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

While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for
the purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by
a budget allocation, a seal, a set of personnel and confidential employees, to effect the
constitutional mandate. Petitioners averment is supposedly supported by the provisions of
the 2005 Rules of the Presidential Electoral Tribunal (2005 PET Rules),3specifically:

(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the
Associate Justices are designated as "Chairman and Members," respectively;

(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and
confidential employees of every member thereof;

(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the
appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the PET,
may designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and

(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court seal.

Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional

provision does allow the "appointment of additional personnel."

Further, petitioner highlights our decision in Buac v. COMELEC4 which peripherally declared
that "contests involving the President and the Vice-President fall within the exclusive original
jurisdiction of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner
reiterates that the constitution of the PET, with the designation of the Members of the Court as
Chairman and Members thereof, contravenes Section 12, Article VIII of the Constitution,
which prohibits the designation of Members of the Supreme Court and of other courts
established by law to any agency performing quasi-judicial or administrative functions.

The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010,
filed a Comment5thereon. At the outset, the OSG points out that the petition filed by Atty.
Macalintal is unspecified and without statutory basis; "the liberal approach in its preparation x
x x is a violation of the well known rules of practice and pleading in this jurisdiction."

In all, the OSG crystallizes the following issues for resolution of the Court:

WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT

PETITION.

II

WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL

TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF
PARAGRAPH 7, SECTION 4 OF ARTICLE VII OF THE 1987
CONSTITUTION.

III

WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME

COURT AS MEMBERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL
IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF SECTION 12,
ARTICLE VIII OF THE 1987 CONSTITUTION.6

In his Reply,7 petitioner maintains that:

1. He has legal standing to file the petition given his averment of transcendental importance of
the issues raised therein;

2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section 4,
Article VII of the Constitution; and

3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to Section
12, Article VIII of the Constitution.

We winnow the meanderings of petitioner into the singular issue of whether the constitution of
the PET, composed of the Members of this Court, is unconstitutional, and violates Section 4,
Article VII and Section 12, Article VIII of the Constitution.

But first, we dispose of the procedural issue of whether petitioner has standing to file the
present petition.

The issue of locus standi is derived from the following requisites of a judicial inquiry:

1. There must be an actual case or controversy;

2. The question of constitutionality must be raised by the proper party;

3. The constitutional question must be raised at the earliest possible opportunity; and

4. The decision of the constitutional question must be necessary to the determination of the
case itself.8

On more than one occasion we have characterized a proper party as one who has sustained
or is in immediate danger of sustaining an injury as a result of the act complained of.9 The
dust has long settled on the test laid down in Baker v. Carr:10 "whether the party has alleged
such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult questions."11 Until and unless such actual or threatened
injury is established, the complainant is not clothed with legal personality to raise the
constitutional question.

Our pronouncements in David v. Macapagal-Arroyo12 illuminate:

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case,
he has to adequately show that he is entitled to seek judicial protection. In other words, he
has to make out a sufficient interest in the vindication of the public order and the securing of
relief as a" citizen" or "taxpayer."

xxxx

However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United States Supreme Court laid down the more
stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same
Court ruled that for a private individual to invoke the judicial power to determine the validity of
an executive or legislative action, he must show that he has sustained a direct injury as a
result of that action, and it is not sufficient that he has a general interest common to all
members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in
the case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine
was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race
Horse Trainers Association v. De la Fuente, Pascual v. Secretary of Public Works and
Anti-Chinese League of the Philippines v. Felix.

However, being a mere procedural technicality, the requirement of locus standi may be
waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency
Powers Cases, Araneta v. Dinglasan, where the "transcendental importance" of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In
Aquino v. Comelec, this Court resolved to pass upon the issues raised due to the
"far-reaching implications" of the petition notwithstanding its categorical statement that
petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where
this liberal policy has been observed, allowing ordinary citizens, members of Congress, and
civic organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.

xxxx

By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:

(1) cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in
question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.

Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a
generalized interest in the outcome of this case, and succeeds only in muddling the issues.
Paragraph 2 of the petition reads:

2. x x x Since the creation and continued operation of the PET involves the use of public funds
and the issue raised herein is of transcendental importance, it is petitioners humble
submission that, as a citizen, a taxpayer and a member of the BAR, he has the legal standing
to file this petition.

But even if his submission is valid, petitioners standing is still imperiled by the white elephant
in the petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo
(Macapagal-Arroyo) in the election protest filed by 2004 presidential candidate Fernando Poe,
Jr. before the Presidential Electoral Tribunal,13because judicial inquiry, as mentioned above,
requires that the constitutional question be raised at the earliest possible opportunity. 14 Such
appearance as counsel before the Tribunal, to our mind, would have been the first opportunity
to challenge the constitutionality of the Tribunals constitution.

Although there are recognized exceptions to this requisite, we find none in this instance.
Petitioner is unmistakably estopped from assailing the jurisdiction of the PET before which
tribunal he had ubiquitously appeared and had acknowledged its jurisdiction in 2004. His
failure to raise a seasonable constitutional challenge at that time, coupled with his
unconditional acceptance of the Tribunals authority over the case he was defending,
translates to the clear absence of an indispensable requisite for the proper invocation of this
Courts power of judicial review. Even on this score alone, the petition ought to be dismissed
outright.
Prior to petitioners appearance as counsel for then protestee Macapagal-Arroyo, we had
occasion to affirm the grant of original jurisdiction to this Court as a Presidential Electoral
Tribunal in the auspicious case of Tecson v. Commission on Elections.15 Thus -

Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the
provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the
jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the
Supreme Court to instead take on the petitions they directly instituted before it. The
Constitutional provision cited reads:

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

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the
1973 Constitution to designate any tribunal to be the sole judge of presidential and
vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not
(being) justiciable" controversies or disputes involving contests on the elections, returns and
qualifications of the President or Vice-President. The constitutional lapse prompted Congress,
on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent
Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the
President-Elect and the Vice-President-Elect of the Philippines and Providing for the Manner
of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate
Justices of the Supreme Court to be the members of the tribunal. Although the subsequent
adoption of the parliamentary form of government under the 1973 Constitution might have
implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be
deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution.

Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:

The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and
Valdez petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution
which provides:

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

The word "contest" in the provision means that the jurisdiction of this Court can only be
invoked after the election and proclamation of a President or Vice President. There can be no
"contest" before a winner is proclaimed.16

Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:

G.R. Nos. 161434 and 161634 invoke the Courts exclusive jurisdiction under the last
paragraph of Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion
that these petitions should be dismissed outright for prematurity. The Court has no jurisdiction
at this point of time to entertain said petitions.

The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal
(SET) and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each
specifically and exclusively clothed with jurisdiction by the Constitution to act respectively as
"sole judge of all contests relating to the election, returns, and qualifications" of the President
and Vice-President, Senators, and Representatives. In a litany of cases, this Court has long
recognized that these electoral tribunals exercise jurisdiction over election contests only after
a candidate has already been proclaimed winner in an election. Rules 14 and 15 of the Rules
of the Presidential Electoral Tribunal provide that, for President or Vice-President, election
protest or quo warranto may be filed after the proclamation of the winner.17

Petitioner, a prominent election lawyer who has filed several cases before this Court involving
constitutional and election law issues, including, among others, the constitutionality of certain
provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of
2003),18 cannot claim ignorance of: (1) the invocation of our jurisdiction under Section 4,
Article VII of the Constitution; and (2) the unanimous holding thereon. Unquestionably, the
overarching framework affirmed in Tecson v. Commission on Elections19 is that the Supreme
Court has original jurisdiction to decide presidential and vice-presidential election protests
while concurrently acting as an independent Electoral Tribunal.

Despite the foregoing, petitioner is adamant on his contention that the provision, as worded,
does not authorize the constitution of the PET. And although he concedes that the Supreme
Court may promulgate its rules for this purpose, petitioner is insistent that the constitution of
the PET is unconstitutional. However, petitioner avers that it allows the Court to appoint
additional personnel for the purpose, notwithstanding the silence of the constitutional
provision.

Petitioners pastiche arguments are all hurled at the Court, hopeful that at least one might
possibly stick. But these arguments fail to elucidate on the scope of the rules the Supreme
Court is allowed to promulgate. Apparently, petitioners concept of this adjunct of judicial
power is very restrictive. Fortunately, thanks in no part to petitioners opinion, we are guided
by well-settled principles of constitutional construction.

Verba legis dictates that wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. This Court, speaking through former Chief Justice
Enrique Fernando, in J.M. Tuason & Co., Inc. v. Land Tenure Administration20 instructs:

As the Constitution is not primarily a lawyers document, it being essential for the rule of law to
obtain that it should ever be present in the peoples consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according
to the text of the provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean what they say.
Thus these are cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be
interpreted in accordance with the intent of its framers or ratio legis et anima. A doubtful
provision must be examined in light of the history of the times, and the condition and
circumstances surrounding the framing of the Constitution.21 In following this guideline, courts
should bear in mind the object sought to be accomplished in adopting a doubtful constitutional
provision, and the evils sought to be prevented or remedied.22 Consequently, the intent of the
framers and the people ratifying the constitution, and not the panderings of self-indulgent men,
should be given effect.
Last, ut magis valeat quam pereat the Constitution is to be interpreted as a whole. We
intoned thus in the landmark case of Civil Liberties Union v. Executive Secretary:23

It is a well-established rule in constitutional construction that no one provision of the

Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.

We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24

to
wit:

[T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect
others. When they adopted subsection 2, they permitted, if not willed, that said provision
should function to the full extent of its substance and its terms, not by itself alone, but in
conjunction with all other provisions of that great document.

On its face, the contentious constitutional provision does not specify the establishment of the
PET. But neither does it preclude, much less prohibit, otherwise. It entertains divergent
interpretations which, though unacceptable to petitioner, do not include his restrictive view
one which really does not offer a solution.

Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with
other related provisions of the Constitution such as the parallel provisions on the Electoral
Tribunals of the Senate and the House of Representatives.

Before we resort to the records of the Constitutional Commission, we discuss the framework
of judicial power mapped out in the Constitution. Contrary to petitioners assertion, the
Supreme Courts constitutional mandate to act as sole judge of election contests involving our
countrys highest public officials, and its rule-making authority in connection therewith, is not
restricted; it includes all necessary powers implicit in the exercise thereof.

We recall the unprecedented and trailblazing case of Marcos v. Manglapus:25

The 1987 Constitution has fully restored the separation of powers of the three great branches
of government. To recall the words of Justice Laurel in Angara v. Electoral Commission, "the
Constitution has blocked but with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government." Thus, the 1987
Constitution explicitly provides that "[t]he legislative power shall be vested in the Congress of
the Philippines" [Art. VI, Sec. 1], "[t]he executive power shall be vested in the President of the
Philippines" [Art. VII, Sec. 1], and "[t]he judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law" [Art. VIII, Sec. 1]. These provisions
not only establish a separation of powers by actual division but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the Constitution. For as
the Supreme Court in Ocampo v. Cabangis pointed out "a grant of the legislative power
means a grant of all legislative power; and a grant of the judicial power means a grant of all
the judicial power which may be exercised under the government."

The Court could not have been more explicit then on the plenary grant and exercise of judicial
power. Plainly, the abstraction of the Supreme Court acting as a Presidential Electoral
Tribunal from the unequivocal grant of jurisdiction in the last paragraph of Section 4, Article
VII of the Constitution is sound and tenable.

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

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

MR. REGALADO. My personal position is that the rule-making power of the Supreme Court
with respect to its internal procedure is already implicit under the Article on the Judiciary;
considering, however, that according to the Commissioner, the purpose of this is to indicate
the sole power of the Supreme Court without intervention by the legislature in the
promulgation of its rules on this particular point, I think I will personally recommend its
acceptance to the Committee.26

xxxx

MR. NOLLEDO. x x x.

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

MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is
a body distinct and independent already from the House, and so with the Commission on
Appointments also. It will have the authority to promulgate its own rules.27

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

MR. SUAREZ. Thank you.

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

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between
two parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to
declare who will be the President of our country, which to me is a political action.

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

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically
all the time of the Supreme Court sitting en banc would be occupied with it considering that
they will be going over millions and millions of ballots or election returns, Madam President.28

Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court,
Justice Florenz D. Regalado29 and Fr. Joaquin Bernas30 both opined:

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

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

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

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

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

MR. VILLACORTA. That is right.

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

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

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

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

Before the passage of that republic act, in case there was any contest between two
presidential candidates or two vice-presidential candidates, no one had jurisdiction over it. So,
it became necessary to create a Presidential Electoral Tribunal. What we have done is to
constitutionalize what was statutory but it is not an infringement on the separation of powers
because the power being given to the Supreme Court is a judicial power.31

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

To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply
constitutionalized what was statutory before the 1987 Constitution. The experiential context of
the PET in our country cannot be denied.32

Consequently, we find it imperative to trace the historical antecedents of the PET.

Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of
the present Constitution did not contain similar provisions and instead vested upon the
legislature all phases of presidential and vice-presidential elections from the canvassing of
election returns, to the proclamation of the president-elect and the vice-president elect, and
even the determination, by ordinary legislation, of whether such proclamations may be
contested. Unless the legislature enacted a law creating an institution that would hear election
contests in the Presidential and Vice-Presidential race, a defeated candidate had no legal
right to demand a recount of the votes cast for the office involved or to challenge the
ineligibility of the proclaimed candidate. Effectively, presidential and vice-presidential contests
were non-justiciable in the then prevailing milieu.

The omission in the 1935 Constitution was intentional. It was mainly influenced by the
absence of a similar provision in its pattern, the Federal Constitution of the United States.
Rather, the creation of such tribunal was left to the determination of the National Assembly.
The journal of the 1935 Constitutional Convention is crystal clear on this point:

Delegate Saguin. For an information. It seems that this Constitution does not contain any
provision with respect to the entity or body which will look into the protests for the positions of
the President and Vice-President.

President Recto. Neither does the American constitution contain a provision over the
subject.

Delegate Saguin. But then, who will decide these protests?

President Recto. I suppose that the National Assembly will decide on that.33
To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793,
establishing an independent PET to try, hear, and decide protests contesting the election of
President and Vice-President. The Chief Justice and the Associate Justices of the Supreme
Court were tasked to sit as its Chairman and Members, respectively. Its composition was
extended to retired Supreme Court Justices and incumbent Court of Appeals Justices who
may be appointed as substitutes for ill, absent, or temporarily incapacitated regular members.

The eleven-member tribunal was empowered to promulgate rules for the conduct of its
proceedings. It was mandated to sit en banc in deciding presidential and vice-presidential
contests and authorized to exercise powers similar to those conferred upon courts of justice,
including the issuance of subpoena, taking of depositions, arrest of witnesses to compel their
appearance, production of documents and other evidence, and the power to punish
contemptuous acts and bearings. The tribunal was assigned a Clerk, subordinate officers,
and employees necessary for the efficient performance of its functions.

R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which
replaced the bicameral legislature under the 1935 Constitution with the unicameral body of a
parliamentary government.

With the 1973 Constitution, a PET was rendered irrelevant, considering that the President
was not directly chosen by the people but elected from among the members of the National
Assembly, while the position of Vice-President was constitutionally non-existent.

In 1981, several modifications were introduced to the parliamentary system. Executive power
was restored to the President who was elected directly by the people. An Executive
Committee was formed to assist the President in the performance of his functions and duties.
Eventually, the Executive Committee was abolished and the Office of Vice-President was
installed anew.

These changes prompted the National Assembly to revive the PET by enacting, on December
3, 1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an Independent
Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the Office of the
President and Vice-President of the Philippines, Appropriating Funds Therefor and For Other
Purposes." This tribunal was composed of nine members, three of whom were the Chief
Justice of the Supreme Court and two Associate Justices designated by him, while the six
were divided equally between representatives of the majority and minority parties in the
Batasang Pambansa.

Aside from the license to wield powers akin to those of a court of justice, the PET was
permitted to recommend the prosecution of persons, whether public officers or private
individuals, who in its opinion had participated in any irregularity connected with the
canvassing and/or accomplishing of election returns.

The independence of the tribunal was highlighted by a provision allocating a specific budget
from the national treasury or Special Activities Fund for its operational expenses. It was
empowered to appoint its own clerk in accordance with its rules. However, the subordinate
officers were strictly employees of the judiciary or other officers of the government who were
merely designated to the tribunal.

After the historic People Power Revolution that ended the martial law era and installed
Corazon Aquino as President, civil liberties were restored and a new constitution was formed.
With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then
statutory PET into a constitutional institution, albeit without its traditional nomenclature:

FR. BERNAS. x x x.

x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done

is to constitutionalize what was statutory but it is not an infringement on the separation of
powers because the power being given to the Supreme Court is a judicial power.34

Clearly, petitioners bete noire of the PET and the exercise of its power are unwarranted. His
arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman"
and "Members," respectively; (2) the PET uses a different seal; (3) the Chairman is authorized
to appoint personnel; and (4) additional compensation is allocated to the "Members," in order
to bolster his claim of infirmity in the establishment of the PET, are too superficial to merit
further attention by the Court.

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

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

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

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

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

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

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

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

xxxx

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

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

MR. SUAREZ. Thank you.

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

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

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

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

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

MR. CONCEPCION. The time consumed or to be consumed in this contest for President is
dependent upon they key number of teams of revisors. I have no experience insofar as
contests in other offices are concerned.

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

MR. CONCEPCION. Yes.

MR. SUAREZ. I see.

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

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

MR. SUAREZ. In one year. Thank you for the clarification.35

Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the
PET, to undertake the Herculean task of deciding election protests involving presidential and
vice-presidential candidates in accordance with the process outlined by former Chief Justice
Roberto Concepcion. It was made in response to the concern aired by delegate Jose E.
Suarez that the additional duty may prove too burdensome for the Supreme Court. This
explicit grant of independence and of the plenary powers needed to discharge this burden
justifies the budget allocation of the PET.

The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as
an "awesome" task, includes the means necessary to carry it into effect under the doctrine of
necessary implication.36 We cannot overemphasize that the abstraction of the PET from the
explicit grant of power to the Supreme Court, given our abundant experience, is not
unwarranted.

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

The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full
authority conferred upon the electoral tribunals of the Senate and the House of
Representatives, i.e., the Senate Electoral Tribunal (SET) and the House of Representatives
Electoral Tribunal (HRET),37 which we have affirmed on numerous occasions.38

Particularly cogent are the discussions of the Constitutional Commission on the parallel
provisions of the SET and the HRET. The discussions point to the inevitable conclusion that
the different electoral tribunals, with the Supreme Court functioning as the PET, are
constitutional bodies, independent of the three departments of government Executive,
Legislative, and Judiciary but not separate therefrom.

MR. MAAMBONG. x x x.

My questions will be very basic so we can go as fast as we can. In the case of the electoral
tribunal, either of the House or of the Senate, is it correct to say that these tribunals are
constitutional creations? I will distinguish these with the case of the Tanodbayan and the
Sandiganbayan which are created by mandate of the Constitution but they are not
constitutional creations. Is that a good distinction?

xxxx
MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the
House Electoral Tribunal is a constitutional body?

MR. AZCUNA. It is, Madam President.

MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?

MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.

MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77
Phil. 192, will still be applicable to the present bodies we are creating since it ruled that the
electoral tribunals are not separate departments of the government. Would that ruling still be
valid?

MR. AZCUNA. Yes, they are not separate departments because the separate departments
are the legislative, the executive and the judiciary; but they are constitutional bodies.39

The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by
our holding in Lopez v. Roxas, et al.:42

Section 1 of Republic Act No. 1793, which provides that:

"There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole
judge of all contests relating to the election, returns, and qualifications of the president-elect
and the vice-president-elect of the Philippines."

has the effect of giving said defeated candidate the legal right to contest judicially the election
of the President-elect of Vice-President-elect and to demand a recount of the votes case for
the office involved in the litigation, as well as to secure a judgment declaring that he is the one
elected president or vice-president, as the case may be, and that, as such, he is entitled to
assume the duties attached to said office. And by providing, further, that the Presidential
Electoral Tribunal "shall be composed of the Chief Justice and the other ten Members of the
Supreme Court," said legislation has conferred upon such Court an additional original
jurisdiction of an exclusive character.

Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon
the Supreme Court the functions of a Presidential Electoral Tribunal. The result of the
enactment may be likened to the fact that courts of first instance perform the functions of such
ordinary courts of first instance, those of court of land registration, those of probate courts,
and those of courts of juvenile and domestic relations. It is, also, comparable to the situation
obtaining when the municipal court of a provincial capital exercises its authority, pursuant to
law, over a limited number of cases which were previously within the exclusive jurisdiction of
courts of first instance.

In all of these instances, the court (court of first instance or municipal court) is only one,
although the functions may be distinct and, even, separate. Thus the powers of a court of first
instance, in the exercise of its jurisdiction over ordinary civil cases, are broader than, as well
as distinct and separate from, those of the same court acting as a court of land registration or
a probate court, or as a court of juvenile and domestic relations. So too, the authority of the
municipal court of a provincial capital, when acting as such municipal court, is, territorially
more limited than that of the same court when hearing the aforementioned cases which are
primary within the jurisdiction of courts of first instance. In other words, there is only one court,
although it may perform the functions pertaining to several types of courts, each having some
characteristics different from those of the others.

Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with
original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are
both trial courts and, appellate courts, without detracting from the fact that there is only one
Supreme Court, one Court of Appeals, and one court of first instance, clothed with authority to
discharge said dual functions. A court of first instance, when performing the functions of a
probate court or a court of land registration, or a court of juvenile and domestic relations,
although with powers less broad than those of a court of first instance, hearing ordinary
actions, is not inferior to the latter, for one cannot be inferior to itself. So too, the Presidential
Electoral Tribunal is not inferior to the Supreme Court, since it is the same Court although the
functions peculiar to said Tribunal are more limited in scope than those of the Supreme Court
in the exercise of its ordinary functions. Hence, the enactment of Republic Act No. 1793, does
not entail an assumption by Congress of the power of appointment vested by the Constitution
in the President. It merely connotes the imposition of additional duties upon the Members of
the Supreme Court.

By the same token, the PET is not a separate and distinct entity from the Supreme Court,
albeit it has functions peculiar only to the Tribunal. It is obvious that the PET was constituted
in implementation of Section 4, Article VII of the Constitution, and it faithfully complies not
unlawfully defies the constitutional directive. The adoption of a separate seal, as well as the
change in the nomenclature of the Chief Justice and the Associate Justices into Chairman
and Members of the Tribunal, respectively, was designed simply to highlight the singularity
and exclusivity of the Tribunals functions as a special electoral court.

As regards petitioners claim that the PET exercises quasi-judicial functions in contravention
of Section 12, Article VIII of the Constitution, we point out that the issue in Buac v.
COMELEC43 involved the characterization of the enforcement and administration of a law
relative to the conduct of a plebiscite which falls under the jurisdiction of the Commission on
Elections. However, petitioner latches on to the enumeration in Buac which declared, in an
obiter, that "contests involving the President and the Vice-President fall within the exclusive
original jurisdiction of the PET, also in the exercise of quasi-judicial power."

The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the
Constitution reads:

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

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution
which provides that the power "shall be vested in one Supreme Court and in such lower
courts as may be established by law." Consistent with our presidential system of government,
the function of "dealing with the settlement of disputes, controversies or conflicts involving
rights, duties or prerogatives that are legally demandable and enforceable" 44 is apportioned
to courts of justice. With the advent of the 1987 Constitution, judicial power was expanded to
include "the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government."45 The power was expanded, but it remained absolute.
The set up embodied in the Constitution and statutes characterizes the resolution of electoral
contests as essentially an exercise of judicial power. 1avvph i1

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

At the higher levels city, provincial, and regional, as well as congressional and senatorial
exclusive and original jurisdiction is lodged in the COMELEC and in the House of
Representatives and Senate Electoral Tribunals, which are not, strictly and literally speaking,
courts of law. Although not courts of law, they are, nonetheless, empowered to resolve
election contests which involve, in essence, an exercise of judicial power, because of the
explicit constitutional empowerment found in Section 2(2), Article IX-C (for the COMELEC)
and Section 17, Article VI (for the Senate and House Electoral Tribunals) of the Constitution.
Besides, when the COMELEC, the HRET, and the SET decide election contests, their
decisions are still subject to judicial review via a petition for certiorari filed by the proper
party if there is a showing that the decision was rendered with grave abuse of discretion
tantamount to lack or excess of jurisdiction.46

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or
vice-presidential election contest, it performs what is essentially a judicial power. In the
landmark case of Angara v. Electoral Commission,47 Justice Jose P. Laurel enucleated that "it
would be inconceivable if the Constitution had not provided for a mechanism by which to
direct the course of government along constitutional channels." In fact, Angara pointed out
that "[t]he Constitution is a definition of the powers of government." And yet, at that time, the
1935 Constitution did not contain the expanded definition of judicial power found in Article VIII,
Section 1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in
conjunction with latters exercise of judicial power inherent in all courts,48 the task of deciding
presidential and vice-presidential election contests, with full authority in the exercise thereof.
The power wielded by PET is a derivative of the plenary judicial power allocated to courts of
law, expressly provided in the Constitution. On the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the Supreme Court.

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

We have previously declared that the PET is not simply an agency to which Members of the
Court were designated. Once again, the PET, as intended by the framers of the Constitution,
is to be an institution independent, but not separate, from the judicial department, i.e., the
Supreme Court. McCulloch v. State of Maryland49 proclaimed that "[a] power without the
means to use it, is a nullity." The vehicle for the exercise of this power, as intended by the
Constitution and specifically mentioned by the Constitutional Commissioners during the
discussions on the grant of power to this Court, is the PET. Thus, a microscopic view, like the
petitioners, should not constrict an absolute and constitutional grant of judicial power.
One final note. Although this Court has no control over contrary people and naysayers, we
reiterate a word of caution against the filing of baseless petitions which only clog the Courts
docket. The petition in the instant case belongs to that classification.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE
PRESBITERO J. VELASCO, JR.
CASTRO
Associate Justice
Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

(On Official Leave)

LUCAS P. BERSAMIN
MARIANO C. DEL CASTILLO*
Associate Justice
Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

Associate Justice Associate Justice

MARIA LOURDES P.A. SERENO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court.
RENATO C. CORONA
Chief Justice

Footnotes

*
On official leave.

1
Rollo, pp. 3-9.

2
Paragraph 7.

3
On May 4, 2010, the 2010 Rules of the Presidential Electoral Tribunal (2010 PET Rules)
took effect.

4
465 Phil. 800, 810 (2004).

5
Rollo, pp. 12-38.

6
Id. at 15-16.

7
Id. at 42-58.

8
Cruz, Philippine Political Law, 1998 ed., p. 257.

9
Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel
on Ancestral Domain, G.R. Nos. 183591, 183752, 183893, 183951, and 183962, October 14,
2008, 568 SCRA 402, 456.

10
369 U.S. 186 (1962).

11
Gov. Mandanas v. Hon. Romulo, 473 Phil. 806 (2004).

12
G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489, and 171424, May 3, 2006,
489 SCRA 160, 216-221. (Citations omitted.)

13
Poe v. Macapagal-Arroyo, P.E.T. Case No. 002, March 29, 2005, 454 SCRA 142.

14
Cruz, Philippine Politcal Law, 1998 ed., p. 263.

15
G.R. Nos. 161434, 161634, and 161824, March 3, 2004, 424 SCRA 277, 324-325.
(Emphasis supplied.)

16
Id. at 363.

17
Id. at 431-432.

18
Atty. Macalintal v. COMELEC, 453 Phil. 586 (2003).
19
Supra at note 15.

20
No. L-21064, February 18, 1970, 31 SCRA 413, 423.

21
McCulloch v. State of Maryland, 17 U.S. 316 (Wheat.), 1819.

22
In the Philippine context, see Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896
and 83815, February 22, 1991, 194 SCRA 317.

23
Id. at 330-331.

24
82 Phil. 771, 775 (1949).

25
G.R. No. 88211, September 15, 1989, 177 SCRA 668, 688-689. (Emphasis supplied,
citations omitted.)

26
Records of the Constitutional Commission, Vol. 2, p. 433. (Emphasis supplied.)

27
Id. at 87-88. (Emphasis supplied.)

28
Id. at 420-421. (Emphasis supplied.)

29
Supreme Court.

30
A Roman Catholic Priest of the Jesuit Order.

31
Records of the Constitutional Commission, Vol. 2, pp. 407-408. (Emphasis supplied.)

32
See Defensor-Santiago v. Ramos, P.E.T. Case No. 001, February 13, 1996, 253 SCRA 559;
Tecson v. COMELEC, supra at note 15.

33
Constitutional Convention Record, Vol. X, pp. 471-472.

34
Records of the Constitutional Commission, Vol. 2, p. 408.

35
Id. at 420-421. (Emphasis supplied.)

36
McCulloch v. State of Maryland, supra note 21.

37
CONSTITUTION, Art. VI, Sec. 17.

38
Sen. Defensor-Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 294 (1998), citing Lazatin v.
House Electoral Tribunal, 250 Phil. 390 (1988); Robles v. House of Representatives Electoral
Tribunal, G.R. No. 86647, February 5, 1990, 181 SCRA 780.

39
Records of the Constitutional Commission, Vol. 2, pp. 111-112. (Emphasis supplied.)

40
Supreme Court.

41
Court of Appeals.
42
No. L-25716, July 28, 1966, 17 SCRA 756, 762-765. (Emphasis supplied.)

43
Supra note 4.

44
Javellana v. Executive Secretary, et al., 151-A Phil. 36, 131 (1973).

45
CONSTITUTION, Art. VIII, Sec. 1, second paragraph.

46
See Robles v. House of Representatives Electoral Tribunal, supra note 38; Lazatin v.
House Electoral Tribunal, supra note 38.

47
63 Phil. 139 (1936).

48
See Ynot v. Intermediate Appellate Court, G.R. No. L-74457, March 20, 1987, 148 SCRA
659, 665; Taada and Macapagal v. Cuenco, et al., 103 Phil. 1051 (1957); Alejandrino v.
Quezon, 46 Phil. 83 (1924).

49
Supra note 21.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19978 September 29, 1967

CECILIO RAFAEL, doing business under the style EL BARATO ALCE

COMPANY, petitioner,
vs.
THE EMBROIDERY AND APPAREL CONTROL AND INSPECTION BOARD, ET AL.,
respondents. THE EMBROIDERY AND APPAREL CONTROL AND INSPECTION BOARD,
and THE HONORABLE SECRETARY OF FINANCE DOMINADOR AYTONA, respondents.

S. A. Ordoez for petitioner.

Office of the Solicitor General for respondents.

MAKALINTAL, J.:

In a letter dated January 9, 1961 petitioner, who was engaged in the manufacture of
embroidery and apparel products for the purpose of exportation, using imported raw materials
and doing business under the style "El Barato Alce Company", was authorized by the
Collector of Customs, pursuant to the provisions of the Tariff and Customs Code (RA
1937),1 to operate a manufacturing bonded warehouse located at Santolan, Tenejeros,
Malabon, Rizal, known as Manufacturing Bonded Warehouse No. 88. By virtue of such
authority petitioner imported raw materials exempt from duty and proceeded to manufacture
them into finished products for export under the terms and conditions required and specified
in the letter-authority.

Meanwhile, on June 17, 1961 Republic Act No. 3137 was enacted, creating "an embroidery
and apparel control and inspection board covering control, issuance of entry permits and
inspection of conditionally tax-free raw material importations by local embroidery apparel
manufacturers and the corresponding liquidation of re-exportations thereof as Philippine
made embroideries and apparels."

Secs. 1 and 2 of said Act provide:

Sec. 1. No textile, leather gloves raw materials and/or supplies, of any kind relative thereto,
may be imported into the Philippines as consigned goods to duly registered and organized
Philippine embroidery and apparel firms without the necessary license issued in accordance
with the provisions of this Act.

Sec. 2. This license required hereof under Section One of this Act shall be duly issued by an
Embroidery and Apparel Control and Inspection Board which is hereby created and
hereinafter referred to as the Board, composed of: (1) A representative from the Bureau of
Customs to act as Chairman, to be designated by the Secretary of Finance; (2) A
representative from the Central Bank to be designated by its Governor; (3) A representative
from the Department of Commerce and Industry to be designated by the Secretary of
Commerce and Industry; (4) A representative from the National Economic Council to be
designated by its Chairman; (5) A representative from the private sector coming from the
Association of Embroidery and Apparel Exporters of the Philippines. The Board shall have the
over-all control and shall administer the checks and counter-checks of consigned textile,
leather gloves raw materials and/or supplies to embroidery and apparel manufacturers and
corresponding counter-checks for liquidations of said goods prior to re-exportations. No other
government instrumentality or agency shall be authorized to qualify or question the validity of
license so issued by the Board. Questions of legality and interpretation of any license so
issued shall be decided exclusively by the Board subject to appeal to courts, of competent
jurisdiction.

In compliance with these provisions the Apparel Control and Inspection Board (hereinafter
referred to as the Board) was subsequently constituted with the representative from the
Bureau of Customs as Chairman and the representatives from the Central Bank, the
Department of Commerce and Industry, and the National Economic Council as members,
each of them having been previously designated by their respective department heads.

Upon recommendation of the Philippine Association of Embroidery and Apparel Exporters,

Inc., the Department of Finance named Quintin Santiago, association president, as the
representative from the private sector. However, another organization, the Philippine
Chamber of Embroidery and Apparel Producers, Inc., to which petitioner was affiliated,
questioned the choice of Santiago, apparently because its own nominee to the Board had
been rejected. In upholding its original choice, the Board made reference to a letter of Senator
Alejandro D. Almendras, principal author of Republic Act 3137, stating that the association
referred to in Section 2 of said Act was none other than the respondent association itself. On
this basis of said letter the Board adopted on September 15, 1961 Resolution No. 2 (series of
1961) stating "that the Board entertains no doubt that the P.A.E.A.E. Inc. is the association
referred to in Section 2 of Republic Act No. 3137 and that it is the only association entitled to
representation in the Board from the private sector."

Presumably in the exercise of its powers, the Board, in a communication dated August 31,
1961, requested petitioner to "submit to (the Board) pertinent data called for in the attached
form of application for license (EACIB Form No. 1) which should be duly accomplished before
a notary public." In the same letter petitioner was "also requested to remit with the
aforementioned application the amount of P200.00 either in cash or in a check drawn in favor
of the Embroidery and Apparel Control Board. This amount will be charged against
(petitioner's) future assessments as per Sec. 4, par. XVI of Republic Act No. 3137."

Unwilling to comply with the Board's request, petitioner filed an action for prohibition with
preliminary injunction in the court a quo (Civil Case No. 49087) for the purpose of enjoining or
restraining respondents from enforcing the provisions of Republic Act 3137. More particularly,
petitioner prayed that:

1. Pending final resolution of the petition for prohibition on the merits, a writ of preliminary
injunction ex-parte be issued enjoining and restraining the respondent Embroidery and
Apparel Control and Inspection Board, the respondent Philippine Association of Embroidery
and Apparel Exporters, Inc., and respondent Secretary of Finance from further enforcing the
provisions of Republic Act 3137:

2. After hearing on the merits, a decision be rendered declaring Republic Act No. 3137
unconstitutional and void abinitio;
3. In the alternative, assuming that Republic Act 3137 is declared valid, it is respectfully
prayed that the following acts be declared null and void because they were done without
jurisdiction and prohibiting the respondents from doing the same or similar act:

(a) the act of the Secretary of Finance administering oath of office to the present members of
the respondent Embroidery and Apparel Control and Inspection Board;

(b) the act of the Chairman of respondent Embroidery and Apparel Control and Inspection
Board requiring petitioner to pay P200.00 as condition precedent to the filing of petitioner's
application for a license without stating the actual extent of petitioner's liability thereunder;

xxx xxx xxx

Primarily on the basis of documentary evidence presented by the contending parties, the
court a quo rendered judgment on March 31, 1962, the dispositive portion of which reads:

WHEREFORE, PREMISES CONSIDERED, the Court renders judgment

(a) declaring Section 2 of Republic Act No. 3137 unconstitutional;

(b) declaring the respondent Board created pursuant thereto to be illegally constituted and,
therefore, any and all acts and orders done and/or issued by said respondent are considered
null and void; and

(c) permanently enjoining respondents from enforcing the provisions of Section 2, of Republic
Act 3137.

The counterclaim filed by the Respondent Philippine Association of Embroidery and Apparel
Exporters, Inc. is hereby dismissed for insufficiency of evidence. 1awph l.n t

From this judgment both parties appealed. Petitioner maintains that the court a quo should
not have nullified section 2 of Republic Act 3137 alone but should have declared the entire
law null and void; respondents submit, on the other hand, that the trial court erred in declaring
section 2 of the law invalid.

Petitioner points to several features of Republic Act 3137 to support his claim of invalidity. The
first is found in section 2, providing for the composition of the Board. The argument is that
while Congress may create an office it cannot specify who shall be appointed therein; that the
members of the Board can only be appointed by the President in accordance with Article VII,
Sec. 10, sub-section 32 of the Constitution; that since the Act prescribes that the chairman
and members of the Board should come from specified offices, it is equivalent to a declaration
by Congress as to who should be appointed, thereby infringing the constitutional power of the
President to make appointments.

We find the argument untenable. An examination of section 2 of the questioned statute

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
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 they
already perform under their original appointments.

. . . we do not think that, because additional duties germane to the offices already held by
them were devolved upon them by the Act, it was necessary that they should be again
appointed by the President . . . It cannot be doubted, and it has frequently been the case, that
Congress may increase the power and duties of an existing office without thereby rendering it
necessary that the incumbent should be again nominated and appointed. (Shoemaker vs.
United States, 147 U.S. 170, 185)

Inasmuch as nothing in the Act, nor in the records of the case for that matter, suggests that
the designated representatives to the Board will lose or forfeit their original appointments in
their "parent" offices, it is evident that for purposes of their tenure on the Board they can be
considered as merely on detail, subject to recall by their respective chiefs.

The arrangement envisioned in section 2 is in no wise incompatible with or violative of the

established doctrine that "the appointing power is the exclusive prerogative of the President,
upon which no limitations maybe imposed by Congress, except those resulting from the need
of securing the concurrence of the Commission on Appointments and from the exercise of the
limited power to prescribe the qualifications to a given appointive office." (Manalang vs.
Quitoriano, 94 Phil. 903, 911).

It is significant that Congress, took care to specify, that the representatives should come from
the Bureau of Customs, Central Bank, Department of Commerce and Industry and the
National Economic Council. The obvious reason must be because these departments and/or
bureaus perform functions which have a direct relation to the importation of raw materials, the
manufacture thereof into embroidery and apparel products and their subsequent exportation
abroad.

We see no attempt in Republic Act 3137 to deprive the President of his power to make
appointments, and therefore on this point we rule that the law is not unconstitutional.

Another objection raised by petitioner to the validity of the Act is that it "constitutes class
legislation and has deprived (him) of equal protection of the laws because Congress has
vested the appointment of the representative of the private sector in respondent Board, a
private non-governmental entity." More pointedly, petitioner attacks as null that part of the
statute which requires that "a representative from the private sector coming from the
Association of Embroidery and Apparel Exporters of the Philippines" shall sit as a member of
the Board. Petitioner asserts that this particular provision is designed to favor one private
organization to the exclusion of others.

The argument is without merit. Respondent P.A.E.A.E. was not singled out by the law in order
to favor it over and above others, but rather because it is the dominant organization in the field.
Under the law no privileges are accorded P.A.E.A.E. members which are not similarly given to
non-members. Both are within the coverage of the Act. Non-membership in the P.A.E.A.E.
does not mean that the benefits granted and the restrictions imposed by the Act shall not
apply to those who choose to venture into the business independently.

It is a general rule that legislation which affects alike all persons pursuing the same business
under the same conditions is not such class legislation as is prohibited by constitutional
provisions. The discriminations which are open to objection are those in which persons
engaged in the same business are subjected to different restrictions or are held entitled to
different privileges under the same conditions. Part of the liberty of a citizen consists in the
enjoyment, upon terms of equality with all others in similar circumstances, of the privilege of
pursuing an ordinary calling or trade. . . . The constitutional guarantee as to the equal
protection of the laws, moreover, requires that no impediment should be interposed to the
pursuits of anyone except as applied to the same pursuits by others under similar
circumstances and that no greater burdens in engaging in a calling should be laid upon one
than are laid upon others, in the same calling and condition. 12 Am. Jur. 187 (cited in
Tolentino vs. Board of Accountancy, et al., 90 Phil. 83).

It is a settled rule in constitutional law that legislation which affects with equal force all persons
of the same class and not those of another is not class legislation and does not infringe the
constitutional guarantee of equal protection of the laws. (Meralco vs. Public Utilities
Employees, Assn., 79 Phil. 409).

Another objection is addressed to sec. 4, XVI, paragraph 2, of the Act. which provides:

A special assessment shall be levied upon all persons, corporations, or firms engaged in the
embroidery and apparel manufacturing industry in an amount to be fixed by the Board not
exceeding one percent of the value of the labor, processing or finishing costs realized from
the processed or finished goods exported. The funds collected hereunder shall accrue to the
Board and shall be used exclusively for carrying out its functions and duties.

It is claimed that this section constitutes an undue delegation of legislative power because the
Act does not provide sufficient standards under which the Board may base its assessment.
We do not agree. The afore-cited second paragraph has a direct relation to the paragraph
immediately preceding it, which reads:

XVI. Notice of Export Shipments. Every manufacturer who intends to remove

manufactured products for export shall make a written request to the Board for exportation of
the articles intended for removal, giving the kinds, quantity of yardage, used gross and net
weights, and the value of the articles to be exported and the number or numbers of Import
Entry or entries involved. The Customs official assigned in the bonded manufacturing
warehouse shall undertake the sampling, inspection and classification of the embroidery in
accordance with the rules on inspection and control promulgated by the Board. A certificate of
inspection shall be issued for every lot of embroidered articles inspected. The certificate of
inspection shall be attached to the application to be approved by the Board. The discovery of
any such article in transit, in regards to which no notification has been received by the Board
on goods packed without the presence of the detailed Customs official shall be deemed prima
facie evidence of the illegal removal of same and shall subject them to seizure and forfeiture
proceedings under the Customs laws. (italics supplied.)

Evidently the special assessment referred to in the second paragraph applies to

manufactured products which a manufacturer intends to remove from the bonded warehouse
for exportation. Far from empowering the Board to levy without sufficient standard, the law
sets a reasonable basis under which the special assessment maybe imposed, to wit: (a) that
such special assessment be levied on manufactured goods intended to be removed for
exportation: (b) that such special assessment should not exceed one percent of the value of
the labor, processing or finishing costs realized from the processed or finished goods
exported.
The true distinction between delegation of the power to legislate and the conferring of
authority or discretion as to the execution of the law consists in that the former necessarily
involves a discretion as to what the law shall be, while in the latter the authority or discretion
as to its execution has to be exercised under and in pursuance of the law. The first cannot be
done; to the latter, no valid objection can be made. (Araneta, et al. vs. Gatmaitan, et al., 101
Phil. 328, 346) Tested under this score, We see no valid reason to object to the validity of
Republic Act 3137.

The foregoing points relied upon by petitioner constitute the decisive issues in this case. In
our opinion they should be resolved against petitioner. The other incidental issue presented,
namely, the lack of appropriation with which to pay the per diems of the board members, has
no material relevance to the question of constitutionality and cannot affect the conclusion
herein reached.

IN VIEW OF THE FOREGOING, the judgment appealed from is hereby reversed. Republic
Act No. 3137, particularly Section 2 thereof, is declared constitutional, and the permanent
injunction issued by the court a quo is set aside. Costs against petitioner appellant.

Concepcion C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro, Angeles and Fernando,
JJ., concur.
Bengzon, J.P., J., is on leave.

Footnotes

1
SEC. 1903. Bonded warehouse. Application to the establishment of bonded warehouses
must be made in writing to the Collector, describing the premises, the location, and capacity
of the same, and the purpose for which the building is to be used.

Upon receipt of such application, the Collector shall cause an examination of the premises to
be made, with reference particularly to its location, construction and means provided for the
safekeeping of articles and if found satisfactory he may authorize its establishment, and
accept a bond for its operation and maintenance.

xxx xxx xxx

SEC. 2004. Verification by the Commissioner. A careful account shall be kept by the
Collector of all articles delivered by him to any bonded manufacturing warehouse, and a
sworn monthly return, verified by the customs official in-charge, shall be made by the
manufacturer containing a detailed statement of all imported articles used by him in the
manufacture of the exported articles.

Before commencing business the operator of any manufacturing warehouse shall file with the
commissioner a list of all the articles intended to be manufactured in such warehouse, and
state the formula of manufacture and the names and quantities of the ingredients to be used
therein.

2
"The President shall nominate and with the consent of the Commission on Appointments,
shall appoint the heads of the executive departments and bureaus . . . and all other officers of
the Government whose appointments are not herein otherwise provided for, and those whom
he maybe authorized by law to appoint; but Congress may by law vest the appointment of
inferior officers in the President alone, in the courts, or in the heads of departments."
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as
Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture
and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural
Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY 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." 7Article 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, 10being 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-vis Section 13,
Article VII.
It is a well-established rule in Constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. 17Sections 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-officiomember
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
1 wphi1

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.

Footnotes

1
P. 71, Rollo in G.R. No. 83815 and p. 28, Rollo in G.R. No. 83896.

2 Emphasis supplied.

3 pp. 29-30, Rollo.

4 pp. 10-21, Rollo.

5 Annex "A", Petition, G.R. No. 83815, pp. 21-24, Rollo.

6Thereby, petitioner alleges, eliciting adverse published commentaries from CONCOM

Commissioners Fr. Joaquin G. Bernas, S. J. and Regalado E. Maambong, Congressman
Rodolfo Albano of Isabela, and retired Supreme Court Justice Felix Q. Antonio, Annexes "D",
"E" and "F", Petition, G.R. No. 83815, pp. 40-64, Rollo. CONCOM Vice-President Ambrosio B.
Padilla, in a published article cited in the annexes, also commented on EO 284.

7 p. 11, Rollo in G.R. No. 83815.

8 Emphasis supplied.

9
Annex "I", Comment, G.R. No. 83896, pp. 62-67, Rollo.

10 Annex "2", Ibid., pp. 68-71, Rollo.

11
Maxwell vs. Dow, 176 U.S. 581, 20 Sup. Ct. 448, 44 L. Ed. 597.

12
R.B. No. 95, Monday, March 11, 1985, Record of the Batasan, Volume IV, pp. 835-836.

13 pp. 11-14.

14 Record of the 1986 Constitutional Commission, Vol. 1, p. 553.

15
Sec. 3, Ibid.

16
Sec. 7, Article VII.

Old Wayne Mut. Life Asso. vs. McDonough, 204 U.S. 8, 51 L Ed 345, 27 S Ct 236; Wallace
17

vs. Payne, 197 Cal 539, 241 P. 879.

18 Grantz vs. Grauman (Ky) 320 SW 2d 364; Runyon vs. Smith, 308 Ky 73, 212 SW 2d 521.

19 People vs. Wright, 6 Col. 92.

Thomas M. Colley, A Treatise on the Constitutional Limitations, Vol. I, p.

20

128, citing Attorney-General vs. Detroit and Erin Plank Road Co., 2 Mich. 114; People vs.
Burns, 5 Mich. 114 ; District Township vs. Dubuque, 7 Iowa 262.

21 Varney vs. Justice, 86 Ky 596; 6 S.W. 457; Hunt vs. State, 22 Tex. App. 396, 3 S.W. 233.

As opposed to the term "allowed" used in Section 7, par. (2), Article IX-B of the Constitution,
22

which is permissive. "Required" suggests an imposition, and therefore, obligatory in nature.

Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater Greenville Sewer District, 173 A.L.R.
23

407.

24 Executive Order No. 16, May 9, 1986, 82 O.G. 2117.

25 Sec. 20, Art. XII, 1987 Constitution.

26Hirabayashi vs. United States, 320 U.S. 81, 87 L. Ed. 1774, 63 S. Ct. 1375; Opp Cotton Mills,
Inc. vs. Administrator of Wage and Hour Div., 312 U.S. 126, 85 L. Ed. 624, 61 S. Ct. 524;
Gage vs. Jordan, 23 Cal 2d 794, 174 P 2d, 287 cited in 16 Am Jur 2d, pp. 100, 464.

27
Black's Law Dictionary, p. 516; 15A Words and Phrases, p. 392.

28 15A Words and Phrases, p. 392.

29 Sec. 7, E.O. 778.

30
Sec. 1, E.O. 210.

31
21 SCRA 336 (1967).

32 Emphasis supplied.

33A Words and Phrases, p. 210, citing Collector of Revenue vs. Louisiana Ready Mix Co.,
33

La. App., 197 S. 2d 141, 145.

34 Sec. 7, P.D. No. 474.

35
Section 17, Article VII.

The phrase that appears in the Constitution is not "Unless required by the primary functions"
36

but "Unless otherwise allowed by law or by the primary functions . . ."

37
Record of the 1986 Constitutional Commission, Vol. V, pp. 165-166.

38 Emphasis supplied, Ibid., p. 165.

39 Ibid., Vol. V., pp. 80-81.

40
Ibid., Vol. II, p, 94.

41
Ibid., Vol. III, p. 710.

42 16 Corpus Juris Secundum, 2. 31, p. 105.

43
Commonwealth vs. Ralph, 111 Pa. 365, 3 Atl 220.

44 Household Finance Corporation vs. Shaffner, 203, S.W. 2d 734. 356 Mo. 808.

45 Now Department of Interior and Local Governments.

46 Castillo vs. Arrieta, G.R. No. L-31444, November 13, 1974, 61 SCRA 55.

47
Patterson vs. Benson, 112 Pac. 801, 32 L.R.A. (NS) 949.
 EN BANC

[G.R. No. 138489. November 29, 2001]

ELEANOR DELA CRUZ, FEDERICO LUCHICO, JR., SOLEDAD

EMILIA CRUZ, JOEL LUSTRIA, HENRY PAREL, HELENA
HABULAN, PORFIRIO VILLENA, JOSEPH FRANCIA,
CARMELLA TORRES, JOB DAVID, CESAR MEJIA, MA.
LOURDES V. DEDAL, ALICE TIONGSON, REYDELUZ
CONFERIDO, PHILIPPE LIM, NERISSA SANCHEZ, MARY
LUZ ELAINE PURACAN, RODOLFO QUIMBO, TITO
GENILO and OSCAR ABUNDO, as members of the Board of the
National Housing Authority from the period covering
1991-1996, petitioners, vs. COMMISSION ON AUDIT,
represented by its Commissioners, respondents.

DECISION
SANDOVAL-GUTIERREZ, J.:

This petition for certiorari[1] assails the Decision No. 98-381 dated September 22,
1998, rendered by the Commission on Audit (COA), denying petitioners appeal from the
Notice of Disallowance No. 97-011-061 issued by the NHA Resident Auditor on October
23, 1997. Such Notice disallowed payment to petitioners of their representation
allowances and per diems for the period from August 19, 1991 to August 31, 1996 in the
total amount of P276,600.00.
Petitioners, numbering 20, were members of the Board of Directors of the National
Housing Authority (NHA) from 1991 to 1996.
On September 19, 1997, the COA issued Memorandum No. 97-038[2] directing all
unit heads/auditors/team leaders of the national government agencies and
government-owned and controlled corporations which have effected payment of any form
of additional compensation or remuneration to cabinet secretaries, their deputies and
assistants, or their representatives, in violation of the rule on multiple positions, to (a)
immediately cause the disallowance of such additional compensation or remuneration
given to and received by the concerned officials, and (b) effect the refund of the same
from the time of the finality of the Supreme Court En Banc Decision in the consolidated
cases of Civil Liberties Union vs. Exexcutive Secretary and Anti-Graft League of the
Philippines, Inc. et al. vs. Secretary of Agrarian Reform, et al., promulgated on February
22, 1991.[3] The COA Memorandum further stated that the said Supreme Court Decision,
which became final and executory on August 19, 1991,[4] declared Executive Order No.
284 unconstitutional insofar as it allows Cabinet members, their deputies and assistants to
hold other offices, in addition to their primary offices, and to receive compensation
therefor.
Accordingly, on October 23, 1997, NHA Resident Auditor Salvador J. Vasquez
issued Notice of Disallowance No. 97-011-061[5] disallowing in audit the payment of
representation allowances and per diems of "Cabinet members who were the ex-
officio members of the NHA Board of Directors and/or their respective alternates who
actually received the payments." The total disallowed amount of P276,600 paid as
representation allowances and per diems to each of the petitioners named below, covering
the period from August 19, 1991 to August 31, 1996, is broken down as follows: [6]

NATIONAL HOUSING AUTHORITY

SCHEDULE OF PAID REPRESENTATION/PER DIEM OF THE
BOARD OF DIRECTORS
For the period August 19, 1991 to August 31, 1996

AGENCY MEMBERS OF BOARD OF AMOUNT DISALLOWED

DIRECTORS

DOF Eleanor dela Cruz P25,200.00

(1991-1993)

DTI Federico Luchico, Jr. 36,450.00

(1991-1992)

DOF Soledad Emilia Cruz 57,300.00

(1992-1995)

DOLE Joel Lustria 4,500.00

(1992)

DOLE Henry Parel 2,250.00

(1992)

DOF Helena Habulan 4,050.00

(1993-1994)

DOF Porfirio Villena 6,750.00

(1993)

DTI Joseph Francia 73,500.00

(1993-1995)

DOLE Carmela Torres 4,500.00

(1993)

DPWH Job David 6,750.00

(1993-1994)

DPWH Cesar Mejia 3,150.00

(1993)

DOF Ma. Lourdes V. Dedal 2,250.00

(1993)

DTI Alice Tiongson 900.00

(1994)

DOLE Reynaluz Conferido 11,250.00

(1994-1995)

DOLE Philippe Lim 4,500.00

(1994-1995)

DOF Nerissa Sanchez 2,700.00

(1995)

DOF Mary Luz Elaine Puracan 1,800.00

(1995)

DOLE Rodolfo Quimbo 7,200.00

(1995)

DOLE Tito Genilo 14,400.00

(1995)

DPWH Oscar Abundo 7,200.00

(1995-1996) _____________
P276,600.00
============

Petitioners, through then Chairman Dionisio C. Dela Serna of the NHA Board of
Directors, appealed from the Notice of Disallowance to the Commission on Audit[7] based
on the following grounds:
1. The Decision of the Supreme Court in Civil Liberties Union and Anti-Graft League of
the Philippines, Inc. was clarified in the Resolution of the Court En Banc on August
1, 1991, in that the constitutional ban against dual or multiple positions applies only
 to the members of the Cabinet, their deputies or assistants. It does not cover other
appointive officials with equivalent rank or those lower than the position of
Assistant Secretary; and
2. The NHA Directors are not Secretaries, Undersecretaries or Assistant Secretaries and
that they occupy positions lower than the position of Assistant Secretary.
On September 22, 1998, the COA issued Decision No. 98-381[8] denying petitioners'
appeal, thus:

After circumspect evaluation of the facts and issues raised herein, this
Commission finds the instant appeal devoid of merit. It must be stressed at the
outset that the Directors concerned were not sitting in the NHA Board in their
own right but as representatives of cabinet members and who are
constitutionally prohibited from holding any other office or employment and
receive compensation therefor, during their tenure (Section 13, Article VII,
Constitution; Civil Liberties Union vs. Executive Secretary, 194 SCRA 317).

It may be conceded that the directors concerned occupy positions lower than
Assistant Secretary which may exempt them from the prohibition (under) the
doctrine enunciated in Civil Liberties Union vs. Executive Secretary,
supra. However, their positions are merely derivative; they derive their
authority as agents of the authority they are representing; their power and
authority is sourced from the power and authority of the cabinet members they
are sitting for. Sans the cabinet members, they are non-entities, without power
and without personality to act in any manner with respect to the official
transactions of the NHA. The agent or representative can only validly act and
receive benefits for such action if the principal authority he is representing can
legally do so for the agent can only do so much as his principal can do. The
agent can never be larger than the principal. If the principal is absolutely barred
from holding any position in and absolutely prohibited from receiving any
remuneration from the NHA or any government agency, for that matter, so
must the agent be. Indeed, the water cannot rise above its source.[9]

Hence, this petition.

Presidential Decree No. 757 is the law "Creating the National Housing Authority and
dissolving the existing housing agencies, defining its powers and functions, providing
funds therefor, and for other purposes." Section 7 thereof provides:

SEC. 7. Board of Directors. - The Authority shall be governed by a Board of

Directors, hereinafter referred to as the Board, which shall be composed of the
Secretary of Public Works, Transportation and Communication, the
Director-General of the National Economic and Development Authority,
the Secretary of Finance, the Secretary of Labor, the Secretary of Industry,
the Executive Secretary and the General Manager of the Authority. From
among the members, the President will appoint a chairman. The members of the
Board may have their respective alternates who shall be the officials next in
rank to them and whose acts shall be considered the acts of their
principals with the right to receive their benefit: Provided, that in the absence
of the Chairman, the Board shall elect a temporary presiding officer. x x
x (Emphasis ours)

It bears stressing that under the above provisions, the persons mandated by law to sit
as members of the NHA Board are the following: (1) the Secretary of Public Works,
Transportation and Communications, (2) the Director-General of the National Economic
and Development Authority, (3) the Secretary of Finance, (4) the Secretary of Labor, (5)
the Secretary of Industry, (6) the Executive Secretary, and (7) the General Manager of the
NHA. While petitioners are not among those officers, however, they are alternates of the
said officers, whose acts shall be considered the acts of their principals.
On this point, Section 13, Art. VII of the 1987 Constitution, provides:

SEC. 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure. They shall not, during
their 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 any government-owned or
controlled corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.

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

Interpreting the foregoing Constitutional provisions, this Court, in Civil Liberties

Union and Anti-Graft League of the Philippines, Inc.,[10] held:

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 by the primary functions of said officials' office. The reason is that
these posts do not comprise any other office within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties
and functions on said officials. x x x

xxxxxxxxx

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 officials 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. 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. 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, and the Light Rail Transit Authority.

xxxxxxxxx

The ex-officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is
that these services are already paid for and covered by the compensation
attached to his principal office. It should be obvious that if, say, the
Secretary of Finance attends a meeting of the Monetary Board as
an ex-officio member thereof, he is actually and in legal contemplation
performing the primary function of his principal office in defining policy
in monetary banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any
extra compensation, whether it be in the form of a per diem or an
honorarium or an allowance, or some other such euphemism. By whatever
name it is designated, such additional compensation is prohibited by the
Constitution.

xxxxxxxxx

(Emphasis ours)
 Since the Executive Department Secretaries, as ex-oficio members of the NHA Board,
are prohibited from receiving extra (additional) compensation, whether it be in the form
of a per diem or an honorarium or an allowance, or some other such euphemism," it
follows that petitioners who sit as their alternates cannot likewise be entitled to receive
such compensation. A contrary rule would give petitioners a better right than their
principals.
We thus rule that in rendering its challenged Decision, the COA did not gravely
abuse its discretion.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Pardo, Ynares-Santiago, De Leon , Jr., and Carpio, JJ., concur.
Quisumbing, J., no part. Former DOLE Secretary.
Buena, J., on official leave.

[1] Filed under Rule 65 of the 1997 Rules of Civil Procedure, as amended.
[2]
Annex B of Petition; Rollo, pp. 24-25.
[3]
G.R. No. 83896 and G.R. No. 83815, 194 SCRA 317 (1991).
[4]
Annex B of Petition, supra..
[5]
Annex C of Petition, supra, pp. 26-27.
[6]
P. 2 of Annex C of Petition, ibid., p. 27.
[7]
Pursuant to NHA Board Resolution No. 3819 dated Nov. 20, 1997 authorizing its Chairman to file the
appeal (Annex D, Petition, Rollo, p. 28).
[8]
Annex A of Petition, supra, pp. 21-23.
[9]
Ibid., p. 22.
[10]
Supra.
 EN BANC

[G.R. No. 147392. March 12, 2004]

BENEDICTO ERNESTO R. BITONIO, JR., petitioner, vs.

COMMISSION ON AUDIT and CELSO D. GANGAN,
CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.

DECISION
CALLEJO, SR., J.:

The instant petition filed under Rule 64 of the Revised Rules of Court seeks
the annulment of the Decision[1] of the Commission on Audit (COA) dated January
30, 2001 denying the petitioners motion for the reconsideration of the COA
Notices of Disallowance Nos. 98-008-101 (95) and 98-017-101 (97) dated July 31,
1998 and October 9, 1998, respectively, involving the per diems the petitioner
received from the Philippine Economic Zone Authority (PEZA). In order to avoid
multiplicity of suits, an Amended Petition[2] dated August 16, 2002 was later filed to
include in the resolution of the instant petition Notice of Disallowance No.
98-003-101 (96) dated July 31, 1998 which was belatedly received by the
petitioner on August 13, 2002.
The antecedent facts are as follows:
In 1994, petitioner Benedicto Ernesto R. Bitonio, Jr. was appointed Director IV
of the Bureau of Labor Relations in the Department of Labor and Employment.
In a Letter dated May 11, 1995 addressed to Honorable Rizalino S. Navarro,
then Secretary of the Department of Trade and Industry, Acting Secretary Jose S.
Brilliantes of the Department of Labor and Employment designated the petitioner
to be the DOLE representative to the Board of Directors of PEZA.[3] Such
designation was in pursuance to Section 11 of Republic Act No. 7916, otherwise
known as the Special Economic Zone Act of 1995, which provides:

Section 11. The Philippine Economic Zone Authority (PEZA) Board. There is
hereby created a body corporate to be known as the Philippine Economic Zone
Authority (PEZA)

The Board shall be composed of the Director General as ex officio chairman

with eight (8) members as follows: the Secretaries or their representatives of
the Department of Trade and Industry, the Department of Finance, the
Department of Labor and Employment, the Department of [the] Interior and
Local Government, the National Economic and Development Authority, and
the Bangko Sentral ng Pilipinas, one (1) representative from the labor sector,
and one (1) representative from the investor/business sector in the ECOZONE.

Members of the Board shall receive a per diem of not less than the amount
equivalent to the representation and transportation allowances of the members
of the Board and/or as may be determined by the Department of Budget and
Management: Provided, however, That the per diem collected per month does
not exceed the equivalent of four (4) meetings.

As representative of the Secretary of Labor to the PEZA, the petitioner was

receiving a per diem for every board meeting he attended during the years 1995
to 1997.
After a post audit of the PEZAs disbursement transactions, the COA
disallowed the payment of per diems to the petitioner and thus issued the
following:
(a) Notice of Disallowance No. 98-008-101 (95) dated July 31, 1998 for the
total sum of P24,500 covering the period of July-December 1995;
(b) Notice of Disallowance No. 98-003-101 (96) also dated July 31, 1998 for a
total amount of P100,000 covering the period of January 1996 to
January 1997;[4]
(c) Notice of Disallowance No. 98-017-101 (97) dated October 9, 1998 for the
total amount of P210,000 covering the period of February 1997 to
January 1998.
The uniform reason for the disallowance was stated in the Notices, as follows:

Cabinet members, their deputies and assistants holding other offices in addition
to their primary office and to receive compensation therefore was declared
unconstitutional by the Supreme Court in the Civil Liberties Union vs.
Executive Secretary. Disallowance is in pursuance to COA Memorandum No.
97-038 dated September 19, 1997 implementing Senate Committee Report No.
509.[5]

On November 24, 1998, the petitioner filed his motion for reconsideration to
the COA on the following grounds:

1. The Supreme Court in its Resolution dated August 2, 1991 on the motion
for clarification filed by the Solicitor General modified its earlier ruling
in the Civil Liberties Union case which limits the prohibition to Cabinet
Secretaries, Undersecretaries and their Assistants. Officials given the
rank equivalent to a Secretary, Undersecretary or Assistant Secretary
 and other appointive officials below the rank of Assistant Secretary are
not covered by the prohibition.

2. Section 11 of R.A. No. 7916 provides the legal basis for the movant to
receive per diem. Said law was enacted in 1995, four years after
the Civil Liberties Union case became final. In expressly
authorizing per diems, Congress should be conclusively presumed to
have been aware of the parameters of the constitutional prohibition as
interpreted in the Civil Liberties Union case.[6]

On January 30, 2001, the COA rendered the assailed decision denying
petitioners motion for reconsideration.
Hence, this petition.
The issue in this case is whether or not the COA correctly disallowed the per
diems received by the petitioner for his attendance in the PEZA Board of Directors
meetings as representative of the Secretary of Labor.
We rule in the affirmative.
The COA anchors the disallowance of per diems in the case of Civil Liberties
Union v. Executive Secretary[7] where the Court declared Executive Order No.
284[8] allowing government officials to hold multiple positions in government,
unconstitutional. Thus, Cabinet Secretaries, Undersecretaries, and their Assistant
Secretaries, are prohibited to hold other government offices or positions in
addition to their primary positions and to receive compensation therefor, except in
cases where the Constitution expressly provides. The Courts ruling was in
conformity with Section 13, Article VII of the 1987 Constitution which reads:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure. They shall not, during
their tenure, directly or indirectly, practice any other profession, participate in
any business or be financially interested in any other contract with, or in any
franchise, or special privilege granted by the Government or any subdivision,
agency or instrumentality thereof, including any government-owned or
controlled corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President shall not, during his tenure, be appointed as members of
the Constitutional Commissions, or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, Chairmen, or heads of bureaus or offices,
including government-owned or controlled corporations and subsidiaries.
 Pursuant to the Courts ruling in this case and the Senate Committee Report
on the Accountability of Public Officers and Investigations (Blue Ribbon),[9] the
COA issued Memorandum No. 97-038 which authorized the issuance of the
Notices of Disallowances for the per diems received by the petitioner. It states:

The Commission received a copy of Senate Committee Report No. 509 urging
the Commission on Audit to immediately cause the disallowance of any
payment of any form of additional compensation or remuneration to cabinet
secretaries, their deputies and assistants, or their representatives in violation of
the rule on multiple positions and to effect the refund of any and all such
additional compensation given to and received by the officials concerned, or
their representatives, from the time of the finality of the Supreme Court ruling
in Civil Liberties Union vs. Executive Secretary to the present. In the Civil
Liberties Union case, the Supreme Court ruled that Cabinet Secretaries, their
deputies and assistants may not hold any other office or employment. It
declared Executive Order No. 284 unconstitutional insofar as it allows Cabinet
members, their deputies and assistants to hold other offices in addition to their
primary office and to receive compensation therefor. The said decision became
final and executory onAugust 19, 1991.

In view thereof, all unit heads/auditors/team leaders of the national government

agencies and government-owned or controlled corporations which have
effected payment of subject allowances are directed to implement the
recommendation contained in the subject Senate Committee Report by
undertaking the following audit action: [10]

The petitioner maintains that he is entitled to the payment of per diems, as

R.A. No. 7916 specifically and categorically provides for the payment of a per
diem for the attendance of the members of the Board of Directors at board
meetings of PEZA. The petitioner contends that this law is presumed to be valid;
unless and until the law is declared unconstitutional, it remains in effect and
binding for all intents and purposes. Neither can this law be rendered nugatory on
the basis of a mere memorandum circular COA Memorandum No. 97-038 issued
by the COA. The petitioner stresses that R.A. No. 7916 is a statute more superior
than an administrative directive and the former cannot just be repealed or
amended by the latter.
The petitioner also posits that R.A. No. 7916 was enacted four (4) years after
the case of Civil Liberties Union was promulgated. It is, therefore, assumed that
the legislature, before enacting a law, was aware of the prior holdings of the
courts. Since the constitutionality or the validity of R.A. No. 7916 was never
challenged, the provision on the payment of per diemsremains in force
notwithstanding the Civil Liberties Union case. Nonetheless, the petitioners
position as Director IV is not included in the enumeration of officials prohibited to
receive additional compensation as clarified in the Resolution of the Court
dated August 1, 1991; thus, he is still entitled to receive the per diems.
The petitioners contentions are untenable.
It must be noted that the petitioners presence in the PEZA Board meetings is
solely by virtue of his capacity as representative of the Secretary of Labor. As the
petitioner himself admitted, there was no separate or special appointment for such
position.[11] Since the Secretary of Labor is prohibited from receiving compensation
for his additional office or employment, such prohibition likewise applies to the
petitioner who sat in the Board only in behalf of the Secretary of Labor.
The petitioners case stands on all fours with the case of Dela Cruz v.
Commission on Audit.[12] Here, the Court upheld the COA in disallowing the
payment of honoraria and per diems to the officers concerned who sat as
members of the Board of Directors of the National Housing Authority. The officers
concerned sat as alternates of their superiors in an ex officio capacity.Citing also
the Civil Liberties Union case, the Court explained thus:

The ex-officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is that
these services are already paid for and covered by the compensation attached to
his principal office. It should be obvious that if, say, the Secretary of Finance
attends a meeting of the Monetary Board as an ex-officio member thereof, he is
actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary banking matters, which come
under the jurisdiction of his department. For such attendance, therefore, he is
not entitled to collect any extra compensation, whether it be in the form of a per
diem or an honorarium or an allowance, or some other such euphemism. By
whatever name it is designated, such additional compensation is prohibited by
the Constitution.

Since the Executive Department Secretaries, as ex-officio members of the NHA

Board, are prohibited from receiving extra (additional) compensation, whether
it be in the form of a per diem or an honorariumor an allowance, or some other
such euphemism, it follows that petitioners who sit as their alternates cannot
likewise be entitled to receive such compensation. A contrary rule would give
petitioners a better right than their principals.
[13]

Similarly in the case at bar, we cannot allow the petitioner who sat as
representative of the Secretary of Labor in the PEZA Board to have a better right
than his principal. As the representative of the Secretary of Labor, the petitioner
sat in the Board in the same capacity as his principal. Whatever laws and rules
the member in the Board is covered, so is the representative; and whatever
prohibitions or restrictions the member is subjected, the representative is, likewise,
not exempted. Thus, his position as Director IV of the DOLE which the petitioner
claims is not covered by the constitutional prohibition set by the Civil Liberties
Union case is of no moment. The petitioner attended the board meetings by the
authority given to him by the Secretary of Labor to sit as his representative. If it
were not for such designation, the petitioner would not have been in the Board at
all.
There is also no merit in the allegation that the legislature was certainly aware
of the parameters set by the Court when it enacted R.A. No. 7916, four (4) years
after the finality of theCivil Liberties Union case. The payment of per diems was
clearly an express grant in favor of the members of the Board of Directors which
the petitioner is entitled to receive.
It is a basic tenet that any legislative enactment must not be repugnant to the
highest law of the land which is the Constitution. No law can render nugatory the
Constitution because the Constitution is more superior to a statute.[14] If a law
happens to infringe upon or violate the fundamental law, courts of justice may step
in to nullify its effectiveness.[15] It is the task of the Court to see to it that the law
must conform to the Constitution. In the clarificatory resolution issued by the Court
in the Civil Liberties Union case on August 1, 1991, the Court addressed the issue
as to the extent of the exercise of legislative prerogative, to wit:

The Solicitor General next asks: x x x may the Decision then control or
otherwise encroach on the exclusive competence of the legislature to provide
funds for a public purpose, in terms of compensation orhonoraria under
existing laws, where in the absence of such provision said laws would
otherwise meet the terms of the exception by law? Again, the question is
anchored on a misperception. It must be stressed that the so-called exclusive
competence of the legislature to provide funds for a public purpose or to enact
all types of laws, for that matter, is not unlimited. Such competence must be
exercised within the framework of the fundamental law from which the
Legislature draws its power and with which the resulting legislation or
statute must conform. When the Court sets aside legislation for being
violative of the Constitution, it is not thereby substituting its wisdom for
that of the Legislature or encroaching upon the latters prerogative, but
again simply discharging its sacred task of safeguarding and upholding the
paramount law.

The framers of R.A. No. 7916 must have realized the flaw in the law which is the
reason why the law was later amended by R.A. No. 8748[16] to cure such defect. In
particular, Section 11 of R.A. No. 7916 was amended to read:

SECTION 11. The Philippine Economic Zone Authority (PEZA) Board. There
is hereby created a body corporate to be known as the Philippine Economic
Zone Authority (PEZA) attached to the Department of Trade and Industry. The
Board shall have a director general with the rank of department undersecretary
who shall be appointed by the President. The director general shall be at least
forty (40) years of age, of proven probity and integrity, and a degree holder in
any of the following fields: economics, business, public administration, law,
management or their equivalent, and with at least ten (10) years relevant
working experience preferably in the field of management or public
administration.

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

The Board shall be composed of thirteen (13) members as follows: the

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

As can be gleaned from above, the members of the Board of Directors was
increased from 8 to 13, specifying therein that it is the undersecretaries of the
different Departments who should sit as board members of the PEZA. The option
of designating his representative to the Board by the different Cabinet Secretaries
was deleted. Likewise, the last paragraph as to the payment of per diems to the
members of the Board of Directors was also deleted, considering that such
stipulation was clearly in conflict with the proscription set by the Constitution.
Prescinding from the above, the petitioner is, indeed, not entitled to receive
a per diem for his attendance at board meetings during his tenure as member of
the Board of Director of the PEZA.
 IN LIGHT OF THE FOREGOING, the petition is DISMISSED. The assailed
decision of the COA is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Vitug, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.
Puno, J., on leave.
Panganiban, J., On official leave.
Quisumbing, J., No part, due prior Executive action at DOLE.

COA Decision No. 2001-045 signed by Commissioner Celso D. Gangan, Chairman, with
[1]

Commissioners Emmanuel M. Dalman and Raul C. Flores concurring. Rollo, p. 27.

[2]
Rollo, p. 98.
[3]
Annex A, Rollo, p. 135.
[4]
Included per Amended Petition.
[5]
Rollo, pp. 136-138.
[6]
Id. at 28.
[7]
194 SCRA 317 (1991).
SECTION 1. Even if allowed by law or by the ordinary functions of his position, a member of the
[8]

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.
[9]
Rollo, p. 141
[10]
Id. at 51.
[11]
Id. at 5.
[12]
371 SCRA 157 (2001).
[13]
Id. at 164.
[14]
Aquino v. COMELEC, 248 SCRA 400 (1995).
[15]
See Garcia v. Mata, 65 SCRA 517 (1975).
[16]
Enacted on June 1, 1999.
[17]
Section 1, Republic Act No. 8748.
 EN BANC

[G. R. No. 156982. September 8, 2004]

NATIONAL AMNESTY COMMISSION, petitioner,

vs. COMMISSION ON AUDIT, JUANITO G. ESPINO, Director
IV, NCR, Commission on Audit, and ERNESTO C. EULALIA,
Resident Auditor, National Amnesty
Commission. respondents.

DECISION
CORONA, J.:

This petition for review[1] seeks to annul the two decisions of respondent
Commission on Audit (COA)[2] dated July 26, 2001[3] and January 30,
2003,[4] affirming the September 21, 1998 ruling[5] of the National Government
Audit Office (NGAO). The latter in turn upheld Auditor Ernesto C. Eulalias order
disallowing the payment of honoraria to the representatives of petitioners ex
officio members, per COA Memorandum No. 97-038.
Petitioner National Amnesty Commission (NAC) is a government agency
created on March 25, 1994 by then President Fidel V. Ramos through
Proclamation No. 347. The NAC is tasked to receive, process and review
amnesty applications. It is composed of seven members: a Chairperson, three
regular members appointed by the President, and the Secretaries of Justice,
National Defense and Interior and Local Government as ex officio members.[6]
It appears that after personally attending the initial NAC meetings, the
three ex officio members turned over said responsibility to their representatives
who were paid honorariabeginning December 12, 1994. However, on October 15,
1997, NAC resident auditor Eulalia disallowed on audit the payment
of honoraria to these representatives amounting to P255,750for the period
December 12, 1994 to June 27, 1997, pursuant to COA Memorandum No. 97-038.
On September 1, 1998, the NGAO upheld the auditors order and notices of
disallowance were subsequently issued to the following:[7]

REPRESENTATIVES AMOUNT

1. Cesar Averilla
Department of National Defense P 2,500.00

2. Ramon Martinez
Department of National Defense 73,750.00
 3. Cielito Mindaro,
Department of Justice 18,750.00

4. Purita Deynata
Department of Justice 62,000.00

5. Alberto Bernardo
Department of the Interior
And Local Government 71,250.00

6. Stephen Villaflor
Department of the Interior and
Local Government 26,250.00

7. Artemio Aspiras
Department of Justice 1,250.00
P255,750.00
Meanwhile, on April 28, 1999, the NAC passed Administrative Order No. 2
(the new Implementing Rules and Regulations of Proclamation No. 347), which
was approved by then President Joseph Estrada on October 19, 1999. Section 1,
Rule II thereof provides:

Section 1, Composition The NAC shall be composed of seven (7) members:

a) A Chairperson who shall be appointed by the President;

b) Three (3) Commissioners who shall be appointed by the President;

c) Three (3) Ex-officio Members

1. Secretary of Justice
2. Secretary of National Defense
3. Secretary of the Interior and Local Government

The ex officio members may designate their representatives to the

Commission. Said Representatives shall be entitled to per diems, allowances,
bonuses and other benefits as may be authorized by law. (Emphasis
supplied)

Petitioner invoked Administrative Order No. 2 in assailing before the COA the
rulings of the resident auditor and the NGAO disallowing payment of honoraria to
the ex officio members representatives, to no avail.
Hence, on March 14, 2003, the NAC filed the present petition, contending that
the COA committed grave abuse of discretion in: (1) implementing COA
Memorandum No. 97-038 without the required notice and publication under Article
2 of the Civil Code; (2) invoking paragraph 2, Section 7, Article IX-B of the 1987
Constitution to sustain the disallowance of honoraria under said Memorandum; (3)
applying the Memorandum to the NAC ex officio members representatives who
were all appointive officials with ranks below that of an Assistant Secretary; (4)
interpreting laws and rules outside of its mandate and declaring Section 1, Rule II
of Administrative Order No. 2 null and void, and (5) disallowing the payment
of honoraria on the ground of lack of authority of representatives to attend the
NAC meetings in behalf of the ex officio members.[8]
We hold that the position of petitioner NAC is against the law and
jurisprudence. The COA is correct that there is no legal basis to grant per
diem, honoraria or any allowance whatsoever to the NAC ex officio members
official representatives.
The Constitution mandates the Commission on Audit to ensure that the funds
and properties of the government are validly, efficiently and conscientiously used.
Thus, Article IX-D of the Constitution ordains the COA to exercise exclusive and
broad auditing powers over all government entities or trustees, without any
exception:

Section 2. (1) The Commission on Audit shall have the power, authority and duty
to examine, audit, and settle all accounts pertaining to the revenue and
receipts of, and expenditures or uses of funds and property, owned or held
in trust by, or pertaining to, the Government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned and controlled
corporations with original charters, and on a post-audit basis: (a) constitutional
bodies, commissions and offices that have been granted fiscal autonomy under
this Constitution; (b) autonomous state colleges and universities; (c) other
government-owned or controlled corporations and their subsidiaries; and (d) such
non-governmental entities receiving subsidy or equity, directly or indirectly, from
or through the government, which are required by law of the granting institution to
submit to such audit as a condition of subsidy or equity. However, where the
internal control system of the audited agencies is inadequate, the Commission
may adopt such measures, including temporary or special pre-audit, as are
necessary and appropriate to correct the deficiencies. It shall keep the general
accounts of the Government and, for such period as may be provided by law,
preserve the vouchers and other supporting papers pertaining thereto.

(2) The Commission shall have exclusive authority, subject to the limitations in
this Article, to define the scope of its audit and examination, establish the
techniques and methods required therefor, and promulgate accounting and
auditing rules and regulations, including those for the prevention and
disallowance of irregular, unnecessary, inexpensive, extravagant, or
unconscionable expenditures, or uses of government funds and properties.

Section 3. No law shall be passed exempting any entity of the Government or

its subsidiary in any guise whatever, or any investment of public funds, from the
jurisdiction of the Commission on Audit. (Emphasis supplied).
 It is in accordance with this constitutional mandate that the COA issued
Memorandum No. 97-038 on September 19, 1997:

COMMISSION ON AUDIT MEMORANDUM NO. 97-038

SUBJECT: Implementation of Senate Committee Report No. 509, Committee on

Accountability of Public Officers and Investigations and Committee on Civil
Service and Government Reorganization.

The Commission received a copy of Senate Committee Report No. 509 urging the
Commission on Audit to immediately cause the disallowance of any payment
of any form of additional compensation or remuneration to cabinet
secretaries, their deputies and assistants, or their representatives, in
violation of the rule on multiple positions, and to effect the refund of any
and all such additional compensation given to and received by the officials
concerned, or their representatives, from the time of the finality of the
Supreme Court ruling in Civil Liberties Union v. Executive Secretary to the
present. In the Civil Liberties Union case, the Supreme Court ruled that
Cabinet Secretaries, their deputies and assistants may not hold any other
office or employment. It declared Executive Order 284 unconstitutional
insofar as it allows Cabinet members, their deputies and assistants to hold
other offices in addition to their primary office and to receive
compensation therefor. The said decision became final and executory on
August 19, 1991.

In view thereof, all unit heads/auditors/team leaders of the national government

agencies and government owned or controlled corporations which have effected
payment of subject allowances, are directed to implement the recommendation
contained in the subject Senate Committee Report by undertaking the following
audit action:

1. On accounts that have not been audited and settled under certificate of
settlements and balances on record from August 19, 1991 to present to
immediately issue the Notices of disallowance and corresponding
certificate of settlements and balances.
2. On accounts that have been audited and settled under certificate of
settlements and balances on record to review and re-open said accounts,
issue the corresponding notices of disallowance, and certify a new balance
thereon. It is understood that the re-opening of accounts shall be limited
to those that were settled within the prescriptive period of three (3)
years prescribed in Section 52 of P.D. 1445.
3. On disallowances previously made on these accounts to submit a report on
the status of the disallowances indicating whether those have been
refunded/settled or have become final and executoryand the latest action
taken by the Auditor thereon.
All auditors concerned shall ensure that all documents evidencing the disallowed
payments are kept intact on file in their respective offices.

Any problem/issue arising from the implementation of this Memorandum shall be

brought promptly to the attention of the Committee created under COA Officer
Order No. 97-698 thru the Director concerned, for immediate resolution.

An initial report on the implementation of this Memorandum shall be submitted to

the Directors concerned not later than October 31, 1997. Thereafter, a quarterly
progress report on the status of disallowances made shall be submitted, until all
the disallowances shall have been enforced.

The Committee created under COA Office Order No. 97-698, dated September 10,
1997, shall supervise the implementation of this Memorandum which shall take
effect immediately and shall submit a consolidated report thereon in response to
the recommendation of the Senate Committee on Accountability of Public Officers
and Investigation and Committee on Civil Service and Government
Reorganization.[9] (Emphasis supplied)

Contrary to petitioners claim, COA Memorandum No. 97-038 does not need,
for validity and effectivity, the publication required by Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. This Code shall
take effect one year after such publication.

We clarified this publication requirement in Taada vs. Tuvera:[10]

[A]ll statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, which shall begin fifteen days after
publication unless a differenteffectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders

promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or, at present,
directly conferred by the Constitution. Administrative rules and regulations
must also be published if their purpose is to enforce or implement existing
law pursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is,

regulating only the personnel of the administrative agency and not the
public, need not be published.Neither is publication required of the
so-called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in
the performance of their duties. (Emphasis supplied.)
 COA Memorandum No. 97-038 is merely an internal and interpretative
regulation or letter of instruction which does not need publication to be effective
and valid. It is not an implementing rule or regulation of a statute but a directive
issued by the COA to its auditors to enforce the self-executing prohibition imposed
by Section 13, Article VII of the Constitution on the President and his official family,
their deputies and assistants, or their representatives from holding multiple offices
and receiving double compensation.
Six years prior to the issuance of COA Memorandum No. 97-038, the Court
had the occasion to categorically explain this constitutional prohibition in Civil
Liberties Union vs. TheExecutive Secretary:[11]

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, 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.

xxxxxxxxx

[D]oes 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 IX-B 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.

xxxxxxxxx

But what is indeed significant is the fact that although Section 7, Article IX-B
already contains a blanket prohibition against the holding of multiple offices
or employment in the government subsuming both elective and appointive
public officials, the Constitutional Commission should see it fit to formulate
another provision, Sec. 13, Article VII, specifically prohibiting the President,
Vice-President, members of the Cabinet, their deputies and assistants from
holding any other office or employment during their tenure, unless
otherwise provided in the Constitution itself.

xxxxxxxxx

Thus, while all other appointive officials in the civil service are allowed to
hold other office or employment in the government during their tenure when
such is allowed by law or by the primary functions of their positions,
members of the Cabinet, their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In other words, Section 7,
Article IX-B is meant to lay down the general rule applicable to all elective
and appointive public officials and employees, while Section 13, Article VII
is meant to be the exception applicable only to the President, the
Vice-President, Members of the Cabinet, their deputies and assistants.

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 IX-B of the 1987
Constitution. . . .

xxxxxxxxx

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 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.

xxxxxxxxx

[T]he 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." 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. 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, and the Light Rail Transit Authority.

xxxxxxxxx

The ex-officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is
that these services are already paid for and covered by the compensation
attached to his principal office. x x x

xxxxxxxxx

[E]x-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... (Emphasis supplied).

Judicial decisions applying or interpreting the laws or the Constitution, such

as the Civil Liberties Union doctrine, form part of our legal system.[12] Supreme
Court decisions assume the same authority as valid statutes.[13] The Courts
interpretation of the law is part of that law as of the date of enactment because its
interpretation merely establishes the contemporary legislative intent that the
construed law purports to carry into effect.[14]
COA Memorandum No. 97-038 does not, in any manner or on its own, rule
against or affect the right of any individual, except those provided for under the
Constitution. Hence, publication of said Memorandum is not required for it to be
valid, effective and enforceable.
In Civil Liberties Union, we elucidated on the two constitutional prohibitions
against holding multiple positions in the government and receiving double
compensation: (1) the blanket prohibition of paragraph 2, Section 7, Article IX-B
on all government employees against holding multiple government offices, unless
otherwise allowed by law or the primary functions of their positions, and (2) the
stricter prohibition under Section 13, Article VII on the President and his official
family from holding any other office, profession, business or financial interest,
whether government or private, unless allowed by the Constitution.
The NAC ex officio members representatives who were all appointive officials
with ranks below Assistant Secretary are covered by the two constitutional
prohibitions.
First, the NAC ex officio members representatives are not exempt from the
general prohibition because there is no law or administrative order creating a new
office or position and authorizing additional compensation therefor.
 Sections 54 and 56 of the Administrative Code of 1987 reiterate the
constitutional prohibition against multiple positions in the government and
receiving additional or double compensation:

SEC. 54. Limitation on Appointment. (1) No elective official shall be eligible for
appointment or designation in any capacity to any public office or position during
his tenure.

xxxxxxxxx

(3) 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.

xxxxxxxxx

SEC. 56. Additional or Double Compensation. -- No elective or appointive public

officer or employee shall receive additional or double compensation unless
specifically authorized by law nor accept without the consent of the President, any
present, emolument, office, or title of any kind form any foreign state.

Pensions and gratuities shall not be considered as additional, double or indirect

compensation.

RA 6758, the Salary Standardization Law, also bars the receipt of such
additional emolument.
The representatives in fact assumed their responsibilities not by virtue of a
new appointment but by mere designation from the ex officio members who were
themselves also designated as such.
There is a considerable difference between an appointment and designation.
An appointment is the selection by the proper authority of an individual who is to
exercise the powers and functions of a given office; a designation merely
connotes an imposition of additional duties, usually by law, upon a person already
in the public service by virtue of an earlier appointment.[15]
Designation does not entail payment of additional benefits or grant upon the
person so designated the right to claim the salary attached to the position. Without
an appointment, a designation does not entitle the officer to receive the salary of
the position. The legal basis of an employees right to claim the salary attached
thereto is a duly issued and approved appointment to the position,[16] and not a
mere designation.
Second, the ex officio members representatives are also covered by the strict
constitutional prohibition imposed on the President and his official family.
 Again, in Civil Liberties Union, we held that cabinet secretaries, including their
deputies and assistants, who hold positions in ex officio capacities, are proscribed
from receiving additional compensation because their services are already paid
for and covered by the compensation attached to their principal offices. Thus, in
the attendance of the NAC meetings, theex officio members were not entitled to,
and were in fact prohibited from, collecting extra compensation, whether it was
called per diem, honorarium, allowance or some other euphemism. Such
additional compensation is prohibited by the Constitution.
Furthermore, in de la Cruz vs. COA[17] and Bitonio vs. COA,[18] we
upheld COAs disallowance of the payment of honoraria and per diems to the
officers concerned who sat as ex officiomembers or alternates. The agent,
alternate or representative cannot have a better right than his principal, the ex
officio member. The laws, rules, prohibitions or restrictions that cover theex
officio member apply with equal force to his representative. In short, since the ex
officio member is prohibited from receiving additional compensation for a position
held in an ex officiocapacity, so is his representative likewise restricted.
The Court also finds that the re-opening of the NAC accounts within three
years after its settlement is within COAs jurisdiction under Section 52 of
Presidential Decree No. 1445, promulgated on June 11, 1978:

SECTION 52. Opening and revision of settled accounts. (1) At any time before the
expiration of three years after the settlement of any account by an auditor, the
Commission may motupropio review and revise the account or settlement
and certify a new balance.

More importantly, the Government is never estopped by the mistake or error

on the part of its agents.[19] Erroneous application and enforcement of the law by
public officers do not preclude subsequent corrective application of the statute.
In declaring Section 1, Rule II of Administrative Order No. 2 s. 1999 null and
void, the COA ruled that:

Petitioner further contends that with the new IRR issued by the NAC authorizing
the ex-officio members to designate representatives to attend commission
meetings and entitling them to receive per diems, honoraria and other allowances,
there is now no legal impediment since it was approved by the President. This
Commission begs to disagree. Said provision in the new IRR is null and void for
having been promulgated in excess of its rule-making authority. Proclamation No.
347, the presidential issuance creating the NAC, makes no mention that
representatives of ex-officio members can take the place of said ex-officio
members during its meetings and can receive per diems and allowances. This
being the case, the NAC, in the exercise of its quasi-legislative powers, cannot
add, expand or enlarge the provisions of the issuance it seeks to implement
without committing an ultra vires act.[20]
 We find that, on its face, Section 1, Rule II of Administrative Order No. 2 is
valid, as it merely provides that:
The ex officio members may designate their representatives to the
Commission. Said Representatives shall be entitled to per diems, allowances,
bonuses and other benefits as may be authorized by law. (Emphasis supplied).
The problem lies not in the administrative order but how the NAC and the
COA interpreted it.
First, the administrative order itself acknowledges that payment of allowances
to the representatives must be authorized by the law, that is, the Constitution,
statutes and judicial decisions. However, as already discussed, the payment of
such allowances is not allowed, prohibited even.
Second, the administrative order merely allows the ex officio members to
designate their representatives to NAC meetings but not to decide for them while
attending such meetings. Section 4 of the administrative order categorically
states:

Decisions of the NAC shall be arrived at by a majority vote in a meeting where

there is a quorum consisting of at least four members.

Thus, although the administrative order does not preclude the representatives
from attending the NAC meetings, they may do so only as guests or witnesses to
the proceedings. They cannot substitute for the ex officio members for purposes
of determining quorum, participating in deliberations and making decisions.
Lastly, we disagree with NACs position that the representatives are de
facto officers and as such are entitled to allowances, pursuant to our
pronouncement in Civil Liberties Union:

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 appropriate action
recover the salary, fees and other compensation attached to the office.

A de facto officer derives his appointment from one having colorable authority
to appoint, if the office is an appointive office, and whose appointment is valid on
its face. (He is) one who is in possession of an office and is discharging its duties
under color of authority, by which is meant authority derived from an appointment,
however irregular or informal, so that the incumbent be not a mere volunteer.[21]
The representatives cannot be considered de facto officers because they
were not appointed but were merely designated to act as such. Furthermore, they
are not entitled to something their own principals are prohibited from receiving.
Neither can they claim good faith, given the express prohibition of the Constitution
and the finality of our decision in Civil Liberties Unionprior to their receipt of such
allowances.
 WHEREFORE the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Callejo,
Sr., Azcuna, Tinga and Chico-Nazario, JJ., concur.
Austria-Martinez and Carpio Morales JJ., on official leave.

[1]
Under Rule 64 of the 1997 Rules of Civil Procedure.
[2]
Composed by COA Chairman Guillermo N. Carague, Commissioners Raul C. Flores and
Emmanuel M. Dalman.
[3]
COA Decision No. 2001-144
[4]
COA Decision No. 2003-026.
[5]
NGAO Decision No. 98-006, penned by COA Director Juanito G. Espino, Jr.
[6]
Section 4, Proclamation No. 347, March 25, 1994, as amended by Proclamation No. 724, May
17, 1996, Proclamation No. 21, September 23, 1998, Proclamation Nos. 10 and 10-A and
Proclamation No. 405, October 26, 2000.
[7]
Rollo, pp. 78-79.
[8]
Rollo, pp. 53-54.
[9]
Rollo, pp. 90-91.
[10]
146 SCRA 446, 453-454 [1986].
[11]
194 SCRA 317 [1991].
[12]
Article 8 of the Civil Code of the Philippines.
[13]
Floresca vs. Philex Mining Corporation, 136 SCRA 141 [1985].
[14]
People vs. Licera, 65 SCRA 270 [1975].
[15]
Dimaandal vs. COA, 291 SCRA 322 [1998]; Santiago vs. COA, 199 SCRA 125 [1991].
[16]
Dimaandal vs. COA, 291 SCRA 322, 329 [1998].
[17]
371 SCRA 157 [2001].
[18]
G.R. No. 147392, March 12, 2004.
[19]
Philippine Basketball Association vs. Court of Appeals, 337 SCRA 358 [2000]; Baybay Water
District vs. COA, 374 SCRA 482 [2002].
[20]
COA Decision No. 2001-144; Rollo, p. 358.
[21]
Dimaandal vs. COA, 291 SCRA 322, 329 [1998].
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 204964 October 15, 2014

REMIGIO D. ESPIRITU AND NOEL AGUSTIN, Petitioners,

vs.
LUTGARDA TORRES DEL ROSARIO represented by SYLVIA R.
ASPERILLA, Respondents.

DECISION

LEONEN, J.:

Lands classified as non-agricultural in zoning ordinances approved by the Housing and Land
Use Regulatory Board or its predecessors prior to June 15, 1998 are outside the coverage of
the compulsory acquisition program of the Comprehensive Agrarian Reform Law. However,
there has to be substantial evidence to prove that lands sought to be exempted fall within the
non-agricultural classification.

This is a petition for review on certiorari1 seeking to set aside the decision2 dated September
28, 2012 and resolution3 dated November 29, 2012 of the Court of Appeals. These orders
reinstated the order4 dated February 19, 2004 of then Secretary of Agrarian Reform Roberto
M. Pagdanganan approving petitioners application for exemption.

The pertinent facts are as follows:

In 1978, the City Council of Angeles City, Pampanga, enacted Zoning Ordinance No. 13,
Series of 1978, classifying areas in Barangay Margot and Barangay Sapang Bato, Angeles
City, as agricultural land.5

Pursuant to this ordinance, Lutgarda Torres del Rosario (del Rosario) allegedly requested the
City Zoning Administrator to exempt from the zoning classification Lot Nos. 854 and 855
located in Barangay Margot and Barangay Sapang Bato, Angeles City.6 The land is covered
by Transfer Certificate of Title No. T-11809 withan area of 164.7605 hectares.7 The request
was allegedly approved on March 7, 1980 by Engineer Roque L. Dungca, Angeles City
Development Coordinator/Zoning Administrator, and the lots were allegedly reclassified as
non-agricultural or industrial lots.8

On June 10, 1988, the Comprehensive Agrarian Reform Law (Republic Act No. 6657) was
enacted.

On October 10, 2000, del Rosario, through her representative Sylvia R. Asperilla (Asperilla),
filed an application for exemption with the Department of Agrarian Reform, seeking to exempt
Lot Nos. 854 and 855 from the Comprehensive Agrarian Reform Program (CARP) coverage.9

On February 19, 2004, then Secretary of Agrarian Reform Roberto M. Pagdanganan

(Secretary Pagdanganan) issued an order granting the application for exemption. Citing
Department of Justice Opinion No. 44, Series of 1990, Secretary Pagdanganan stated that
lands classified as non agricultural before the enactment of CARP are beyond its coverage.10

On March 26, 2004, farmers in del Rosarios landholdings, led by Remigio Espiritu (Espiritu),
filed a motion for reconsideration11 of the order. They argued that under Zoning Ordinance No.
13, Series of 1978, Housing and Land Use Regulatory Board Resolution No. 705, Series of
2001, and Angeles City Council Resolution No. 3300, Series of 2001, the land holdings were
classified as agricultural, not industrial.12 They argued that as per certifications by the Housing
and Land Use Regulatory Board dated June 1, 2001, May 28, 2001, and November 24, 2003,
the landholdings were within the agricultural zone, and there was no zoning ordinance passed
that reclassified the area into other land uses.13

The motion was given due course by the Department of Agrarian Reform, this time headed by
Secretary Nasser C. Pangandaman (Secretary Pangandaman). Hence, on June 15, 2006,
then Secretary Pangandaman issued an order14 granting the motion for reconsideration and
revoking the earlier order of then Secretary of Agrarian Reform Pagdanganan.

Del Rosario contended that this order was sent to her through Clarita Montgomery in
Barangay Margot, Sapang Bato, Angeles City, and not at Asperillas address in Cubao,
Quezon City, which was her address on record. Del Rosario alleged that she only came to
know of the order on January 26, 2007, when the Provincial Agrarian Reform Officer of
Pampanga handed her a copy of the order.15 She then filed her motion for reconsideration of
the order dated June 15, 2006. The motion was dated February 9, 2007.16

Acting on del Rosarios motion for reconsideration, Secretary Pangandaman found that the
certifications issued by the Housing and Land Use Regulatory Board classified the
landholdings as agricultural before June 15, 1988.17Based on the ocular inspections
conducted by the Center for Land Use Policy, Planning and Implementation (CLUPPI), the
land remained agricultural and was planted with sugar cane and corn.18 Accordingly,
Secretary Pangandaman denied del Rosarios motion in the order19 dated March 3, 2008.

Del Rosario filed a notice of appeal20 before the Office of the President on March 27, 2008.

On May 7, 2009, the Office of the President, through then Deputy Executive Secretary for
Legal Affairs Manuel B. Gaite (Deputy Executive Secretary Gaite), rendered the
decision21 dismissing the appeal for lack of merit.

Del Rosario filed a motion for extension of 10 days to file her motion for
reconsideration.22 Citing Administrative Order No. 18, Series of 1987, and Habaluyas
Enterprises, Inc. v. Japzon,23 the Office of the President, through then Deputy Executive
Secretary Natividad G. Dizon, denied the motion in the order24 dated July 14, 2009.

Aggrieved, del Rosario filed a petition for review before the Court of Appeals arguing (1) that
she was denied due process when the order of Secretary Pangandaman was "erroneously
sent to another address"25 and (2) that the decision of then Deputy Executive Secretary Gaite
was void since he had been appointed to the Securities and Exchange Commission two
months prior to the rendering of the decision.26

On September 28, 2012, the Court of Appeals rendered a decision granting the petition. The
Court of Appeals stated that del Rosario was indeed prevented from participating inthe
proceedings that led to the issuance of Secretary Pangandamans order when the notices
were sent to her other address on record.27 It also found that the decision issued by then
Deputy Executive Secretary Gaite was void since it violated Article VII, Section 13 of the
Constitution.28 The dispositive portion of the decision states:

WHEREFORE, premises considered, the PETITION is GRANTED. The assailed Decision

dated 07 May 2009, and the Order dated 15 June 2006 are hereby SET ASIDE. Perforce, with
the nullity of the said Decision and Order, the Pagdanganan Order granting exemption to
petitioners land is REINSTATED.

SO ORDERED.29

Their motion for reconsideration having been denied,30 petitioners, namely Remigio Espiritu
and Noel Agustin, now come before this court via a petition for review on certiorari, seeking to
set aside the ruling of the Court of Appeals.

In particular, petitioners argue that respondent was not denied due process as she was able
to actively participate in the proceedings before the Department of Agrarian Reform and the
Office of the President.31 They also argue that respondent was not able to present proof that
Deputy Executive Secretary Gaite was not authorized tosign the decision and, hence, his
action is presumed to have been donein the regular performance of duty.32

Respondent, on the other hand, argues that the Court of Appeals did not commit any
reversible error in itsdecision. She argues that she was deprived of due process when
Secretary Pangandamans order was sent to the wrong address. She also argues that the
Deputy Executive Secretary Gaites decision was void since he had already been appointed
to the Securities and Exchange Commission two months prior.33

The issue, therefore, before this court is whether the Court of Appeals correctly set aside the
order of Secretary Pangandaman and the decision of Deputy Secretary Gaite and reinstated
the order of Secretary Pagdanganan.

This petition should be granted.

Respondent was not deprived of due process

The Court of Appeals, in finding for respondent, stated that:

Since she was not notified, [del Rosario] was not able to participate in the proceedings
leading to the issuance of the Pangandaman Order. The absence of notice that resulted in the
inability of [del Rosario] to be heard indubitably confirms her claim of lackof due process. [Del
Rosario] indeed was denied her day in the administrative proceedings below. And considering
that [del Rosario] was not accorded due process, the Pangandaman Order is void for lack
ofjurisdiction. Hence, contrary to respondents submission, it could not attain finality.34

The Court of Appeals, however, did not take into consideration that respondent was still able
to file a motion for reconsideration of Secretary Pangandamans order, albeit beyond the
allowable period to file. In Department of Agrarian Reform Administrative Order No.
06,35 Series of 2000:

RULE III
Commencement, Investigation and Resolution of Cases
 ....

SECTION 21. Motion for Reconsideration. In case any of the parties disagrees with the
decision or resolution, the affected party may file a written motion for reconsideration within
fifteen (15) days from receipt of the order, furnishing a copy thereof tothe adverse party. The
filing of the motion for reconsideration shall suspend the running of the period to appeal.

Any party shall be allowed only one(1) motion for reconsideration. Thereafter, the RD or
approving authority shall rule on the said motion within fifteen (15) days from receipt thereof.
In the event that the motion is denied, the adverse party has the right to perfect his appeal
within the remainder of the period to appeal, reckoned from receipt of the resolution of denial.
If the decision is reversed on reconsideration, the aggrieved party shall have fifteen (15) days
from receipt of the resolution of reversal within which to perfect his appeal.(Emphasis
supplied) Despite being filed late, Secretary Pangandaman still gave due course to the motion
and resolved it on its merits. This is clear from his order dated March 3, 2008, which reads:

During the 50th Special CLUPPI Committee-B Meeting, held on 18 December 2007, the
Motion for Reconsideration filed by Sylvia Espirilla [sic] was deliberated upon and the
Committee recommended the DENIAL of the Motion for Reconsideration based on the
following grounds:

The certifications issued by the HLURB shows that the subject properties were classified as
agricultural before 15 June 1986 [sic]; and

Based on the ocular inspection conducted by the CLUPPI Inspection Team, it was found out
that the area remained agricultural. In fact, it [is] still dominantly planted with sugar cane and
corn.36 (Emphasis supplied)

While it may be true that respondent was prevented from filing a timelymotion for
reconsideration of Secretary Pangandamans order, it would be erroneous to conclude that
she had been completely denied her opportunity to be heard. In Department of Agrarian
Reform v. Samson:37

. . . . In administrative proceedings, a fair and reasonable opportunity to explain ones side

suffices to meet the requirements of due process.In Casimiro v. Tandog, the Court held:

The essence of procedural due process is embodied in the basic requirement of notice and a
real opportunity to be heard. In administrative proceedings, such as in the case at bar,
procedural due process simply means the opportunity to explain ones sideor the opportunity
to seek a reconsideration of the action or ruling complained of. "To be heard" does not mean
only verbal arguments in court; one may be heard also thru pleadings. Where opportunity to
be heard, either through oral arguments or pleadings, is accorded, there is no denial of
procedural due process.

In administrative proceedings, procedural due process has been recognized toinclude the
following: (1) the right to actual or constructive notice of the institution of proceedings which
may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the
assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones
rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a
person charged administratively a reasonable guarantee of honesty as well as impartiality;
and (4) a finding by said tribunal which is supported by substantial evidence submitted for
consideration during the hearing or contained in the records or made known to the parties
affected.38 (Emphasis supplied)

When respondent filed her motion for reconsideration assailing Secretary Pangandamans
order, she was able to completely and exhaustively present her arguments. The denial of her
motion was on the basis of the merits of her arguments and any other evidence she was able
to present. She was given a fair and reasonable opportunity to present her side; hence, there
was no deprivation of due process.

It was also erroneous to conclude that respondent was "denied her day in the administrative
proceedings below."39 Respondent was able to actively participate not only in the proceedings
before the Department of Agrarian Reform, but also on appeal to the Office of the President
and the Court of Appeals.

Deputy Executive Secretary Gaites decision is presumed valid, effective, and binding

Article VII, Section 13 of the Constitution states:

Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies
orassistants 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 ofinterest in the conduct of
their office.

. . . . (Emphasis supplied)

It is alleged that Gaite was appointed Commissioner to the Securities and Exchange
Commission on March 16, 2009.40 It is also alleged that he has already lost his authority as
Deputy Executive Secretary for Legal Affairs when he rendered the decision dated May 7,
2009 since he is constitutionally prohibited from holding two offices during his tenure. This,
however, is not conclusive since no evidence was presented as to when he accepted the
appointment, took his oath of office, or assumed the position.

Assuming that Gaites appointment became effective on March 16, 2009, he can be
considered a de factoofficer at the time he rendered the decision dated May 7, 2009.

In Funa v. Agra,41 a petition was filed against Alberto Agra for holding concurrent positions as
the acting Secretary of Justice and as Solicitor General. This court, while ruling that the
appointment of Alberto Agra as acting Secretary of Justice violated Article VII, Section 13 of
the Constitution, held that he was a de facto officer during his tenure in the Department of
Justice:

A de facto officer is one who derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its face. He
may also be one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer. Consequently, the acts of the de facto
officer are just as valid for all purposes as those of a de jure officer, in so far as the public or
third persons who are interested therein are concerned.

In order to be clear, therefore, the Court holds that all official actions of Agra as a de facto
Acting Secretary of Justice, assuming that was his later designation, were presumed valid,
binding and effective as if he was the officer legally appointed and qualified for the office. This
clarification is necessary in order to protect the sanctity of the dealings by the public with
persons whose ostensible authority emanates from the State. Agras official actions covered
by this clarification extend to but are not limited to the promulgation of resolutions on petitions
for review filed in the Department of Justice, and the issuance of department orders,
memoranda and circulars relative to the prosecution of criminal cases.42 (Emphasis supplied)

Assuming that Gaite was a de facto officer of the Office of the President after his appointment
to the Securities and Exchange Commission, any decision he renders during this time is
presumed to be valid, binding, and effective.

With Gaite being a public officer, his acts also enjoy the presumption of regularity, thus:

The presumption of regularity of official acts may be rebutted by affirmative evidence of

irregularity or failure to perform a duty. The presumption, however, prevails until it is
overcome by no less than clear and convincing evidence to the contrary. Thus, unless the
presumption in [sic] rebutted, it becomes conclusive. Every reasonable intendment will be
madein support of the presumption and in case of doubt as to an officers act being lawful or
unlawful, construction should be in favor of its lawfulness.43 (Emphasis supplied)

Respondent has not presented evidence showing that the decision was rendered ultra vires,
other than her allegation that Gaite had already been appointed to another office. Unless
there is clear and convincing evidence to the contrary, the decision dated May 7, 2009 is
conclusively presumed to have been rendered in the regular course of business.

Respondents landholdings were agricultural, not industrial

Prior to the enactment of Republic Act No. 6657, lands were classified into agricultural,
residential, or industrial by law or by zoning ordinances enacted by local government units. In
Heirs of Luna v. Afable:44

It is undeniable that local governments have the power to reclassify agricultural into
non-agricultural lands. Section 3 of RA No. 2264 (The Local Autonomy Act of 1959)
specifically empowers municipal and/or city councils to adopt zoning and subdivision
ordinances or regulations in consultation with the National Planning Commission. By virtue of
a zoning ordinance, the local legislature may arrange, prescribe, define, and apportion the
land within itspolitical jurisdiction into specific uses based not only on the present, butalso on
the future projection of needs. It may, therefore, be reasonably presumed that when city and
municipal boards and councils approved an ordinance delineating an area or district in their
cities or municipalities as residential, commercial, or industrial zone pursuant to the power
granted tothem under Section 3 of the Local Autonomy Act of 1959, they were, at the same
time, reclassifying any agricultural lands within the zone for non-agricultural use; hence,
ensuring the implementation of and compliance with their zoning ordinances.45 (Emphasis
supplied) Republic Act No. 6657 became effective on June 15, 1988, and it covered all public
and private lands, including lands of the public domain suited for agriculture.46 Upon its
enactment, questions arose as to the authority of the Department of Agrarian Reform to
approve or disapprove applications for conversion of agricultural land to non-agricultural.
Then Agrarian Reform Secretary Florencio B.Abad (Secretary Abad) was of the opinion that
laws prior to Republic Act No. 6657 authorized the Department of Agrarian Reform, together
with the Department of Local Government and Community Development and the Human
Settlements Commission, to allow or disallow conversions. In response to Secretary Abads
query, the Department of Justice issued Opinion No. 44 on March 16, 1990, written by then
Secretary of Justice Franklin M.Drilon. The opinion, reproduced in full, states:

Sir:

This refers to your letter of the 13th instant stating your "position that prior to
the passage of R.A. 6657, the Department of Agrarian Reform had the
authority to classify and declare which agricultural lands are suitable for
non-agricultural purposes, and to approve or disapprove applications for
conversion from agricultural to non-agricultural uses."

In support of the foregoing view, you contend that under R.A. No. 3844, as amended, the
Department of Agrarian Reform (DAR) is empowered to "determine and declare anagricultural
land to be suited for residential, commercial, industrial orsome other urban purpose" and to
"convert agricultural land from agricultural to non-agricultural purposes"; that P.D. No. 583, as
amended by P.D. No. 815 "affirms that the conversion of agricultural lands shall be allowed
only upon previous authorization of the [DAR]; with respectto tenanted rice and corn lands";
that a Memorandum of Agreement dated May 13, 1977 between the DAR, the Department of
Local Government and Community Development and the then Human Settlements
Commission "further affirms the authority of the [DAR] to allow or disallow conversion of
agricultural lands"; that E.O. No. 129-A expressly invests the DAR with exclusive authority to
approve or disapprove conversion of agricultural lands for residential, commercial, industrial
and other land uses'; and that while inthe final version of House Bill 400, Section 9 thereof
provided that lands devoted to "residential, housing, commercial and industrial sites classified
as such by the municipal and city development councils as already approved by the Housing
and Land Use Regulatory Board, in their respective zoning development plans" be exempted
from the coverage of the Agrarian Reform program, this clause was deleted from Section 10
of the final version of the consolidated bill stating the exemptions from the coverage of the
Comprehensive Agrarian Reform Program. We take it that your query has been prompted by
the study previously made by this Department for Executive Secretary Catalino Macaraig Jr.
and Secretary Vicente Jayme (Memorandum dated February 14, 1990) which upheld the
authority of the DAR to authorize conversions of agricultural lands to non-agricultural uses as
of June 15, 1988, the date of effectivity of the Comprehensive Agrarian Reform Law (R.A. No.
6657). [I]t is your position that the authority of DAR to authorize such conversion existed even
prior to June 15, 1988 or as early as 1963 under the Agricultural Land Reform Code(R.A. No.
3844; as amended).

It should be made clear at the outset that the aforementioned study of this Department was
based on facts and issues arising from the implementation of the Comprehensive Agrarian
Reform Program (CARP). While there is no specific and express authority given to DAR in the
CARP law to approve or disapprove conversion of agricultural lands to nonagricultural uses,
because Section 65 only refers to conversions effected after five years from date of the award,
we opined that the authority of the DAR to approve or disapprove conversions of agricultural
lands to nonagricultural uses applies only to conversions made on or after June 15, 1988, the
date of effectivity of R.A.No. 6657, solely on the basis of our interpretation of DAR's mandate
and the comprehensive coverage of the land reform program. Thus, we said:
"Being vested with exclusive original jurisdiction over all matters involving the implementation
of agrarian reform, it is believed to be the agrarian reform law's intention that any conversion
ofa private agricultural land to non-agricultural uses should be cleared beforehand by the
DAR. True, the DAR's express power over land use conversion is limited to cases in which
agricultural lands already awarded have, after five years, ceased to be economically feasible
and sound for agricultural purposes, or the locality has become urbanized and the land will
have a greater economic value for residential, commercial or industrial purposes. But to
suggest that these are the only instances when the DAR can require conversion clearances
would open a loophole in the R.A. No. 6657, which every landowner may use to evade
compliance with the agrarian reform program. Hence, it should logically follow from the said
department's express duty and function to execute and enforce the said statute that any
reclassification of a private land as a residential, commercial or industrial property should first
be cleared by the DAR."

It is conceded that under the laws in force prior to the enactment and effective date of R.A. No.
6657, the DAR had likewise the authority, to authorize conversions of agricultural lands to
other uses, but always in coordination with other concerned agencies. Under R.A. No. 3344,
as amended by R.A. No. 6389, an agricultural lessee may, by order of the court, be
dispossessed of his landholding if after due hearing, it is shown that the "landholding is
declared by the [DAR] upon the recommendation of the National Planning Commission to be
suited for residential, commercial, industrial or some other urban purposes."

Likewise, under various Presidential Decrees (P.D. Nos. 583, 815 and 946) which were
issued to give teeth to the implementation of the agrarian reform program decreed inP.D. No.
27, the DAR was empowered to authorize conversions of tenanted agricultural lands,
specifically those planted to rice and/or corn, to other agricultural or tonon-agricultural uses,
"subject to studies on zoning of the Human Settlements Commissions" (HSC). This
non-exclusive authority of the DAR under the aforesaid laws was, as you have correctly
pointed out, recognized and reaffirmed by other concerned agencies, such as the Department
of Local Government and Community Development (DLGCD) and the then Human
Settlements Commission (HSC) in a Memorandum of Agreement executed by the DAR and
these two agencies on May 13, 1977, which is an admission that with respect to land use
planning and conversions, the authority is not exclusive to any particular agency but is a
coordinated effort of all concerned agencies.

It is significant to mention thatin 1978, the then Ministry of Human Settlements was granted
authority to review and ratify land use plans and zoning ordinance of local governments and
to approve development proposals which include land use conversions (see LOI No. 729
[1978]). This was followed by P.D.No. 648 (1981) which conferred upon the Human
Settlements Regulatory Commission (the predecessors of the Housing and Land Use
Regulatory Board [HLURB][)] the authority to promulgate zoning and other land use control
standards and guidelines which shall govern land use plans and zoning ordinances of local
governments, subdivision or estate development projects of both the public and private sector
and urban renewal plans, programs and projects; as well as to review, evaluate and approve
or disapprove comprehensive land use development plans and zoning components of civil
works and infrastructure projects, of national, regional and local governments, subdivisions,
condominiums or estate development projects including industrial estates.

P.D. No. 583, as amended by P.D. No. 815, and the 1977 Memorandum of Agreement,
abovementioned, cannot therefore, be construed as sources of authority of the DAR; these
issuances merely affirmed whatever power DAR had at the time oftheir adoption.
With respect to your observation that E.O. No. 129-A also empowered the DAR to approve or
disapprove conversions of agricultural lands into non-agricultural uses as of July 22, 1987, it
is our view that E.O. No. 129-A likewise did not provide a new source of power of DAR with
respect to conversion but it merely recognized and reaffirmed the existence of such power as
granted under existing laws. This is clearly inferrable from the following provision of E.O. No.
129-A to wit:

"Sec. 5. Powers and Functions. Pursuant to the mandate of the Department, and in order to
ensure the successful implementation of the Comprehensive Agrarian Reform Program, the
Department is hereby authorized to:

1) Have exclusive authority to approve or disapprove conversion of agricultural lands for

residential, commercial, industrial and other land uses as may be provided by law"

Anent the observation regarding the alleged deletion of residential, housing, commercial and
industrial sites classifiedby the HLURB in the final version of the CARP bill, we fail to see how
this [sic] circumstances could substantiate your position that DAR's authority to reclassify or
approve conversions of agricultural lands to non-agricultural uses already existed prior to
June 15, 1988. Surely, it is clear that the alleged deletion was necessary to avoid a
redundancy inthe CARP law whose coverage is expressly limited to "all public and private
agricultural lands" and "other lands of the public domain suitable for agriculture" (Sec. 4, R.A.
No. 6657). Section 3(c) of R.A. No. 6657 defines "agricultural land" as that "devoted to
agricultural activity as defined in the Act and not classified as mineral forest, residential,
commercial or industrial land."

Based on the foregoing premises, wereiterate the view that with respect to conversions
ofagricultural lands covered by R.A. No. 6657 to non-agricultural uses, the authority of DAR to
approve such conversions may be exercised from the date of the law's effectivity on June 15,
1988. This conclusion is based on a liberal interpretation of R.A. No. 6657 in the light of DAR's
mandate and the extensive coverage of the agrarian reform program.47 (Emphasis supplied)
Department of Justice Opinion No. 44 became the basis of subsequent issuances by the
Department of Agrarian Reform, stating in clear terms that parties need not seek prior
conversion clearance from the Department of Agrarian Reform for lands that were classified
as non-agricultural prior to Republic Act No. 6657. The subsequent rulings are outlined in
Junio v. Secretary Garilao:48

Following the opinion of the Department of Justice (DOJ), the DAR issued Administrative
Order (AO)No. 6, Series of 1994, stating that conversion clearances were no longer needed
for lands already classified as non-agricultural before the enactment of Republic Act 6657.
Designed to "streamline the issuance of exemption clearances, based on DOJ Opinion No.
44," the AO provided guidelines and procedures for the issuance of exemption clearances.

Thereafter, DAR issued AO 12, Series of 1994, entitled "Consolidated and Revised Rules and
Procedures Governing Conversion of Agricultural Lands to Non-Agricultural Uses." It provided
that the guidelines on how to secure an exemption clearance under DAR AO No. 6, Series of
1994, shall apply to agricultural lands classified or zoned for non-agricultural uses by local
government units (LGUs); and approved by the Housing and Land Use Regulatory Board
(HLURB) before June 15, 1988. Under this AO, the DAR secretary had the ultimate authority
to issue orders granting or denying applications for exemption filed by landowners whose
lands were covered by DOJ Opinion No. 44.49 (Citations omitted)
Accordingly, lands are consideredexempt from the coverage of Republic Act No. 6657 if the
following requisites are present:

1. Lands were zoned for non-agricultural use by the local government unit; and

2. The zoning ordinance was approved by the Housing and Land Use Regulatory Board
before June 15, 1998.

In revoking the prior order of exemption, Secretary Pangandaman took note of the following
considerations:

The Certification dated 18 November 2003, of Mr. David D. David, Planning Officer IV and
Zoning Administrator of the City of Angeles states that the City Planning and Development
Office, Zoning Administration Unit (CPDO-ZAU) certifies that subject property covered by
TCT No. 11804 is classified as agricultural based on the certified photocopy of Zoning
Ordinance, Ordinance No. 13, Series of 1978, issued by the Housing and Land Use
Regulatory Board, Regional Office No. 3 (HLURB-Region III) on 03 September 2001;

Also, upon verification with HLURB-Region III, we were informed that as per copy of the
approved Zoning Plan of 1978, the subject properties were classified as agricultural. The said
Zoning Plan of 1978 was approved under NCC Plan dated 24 September 1980; and

Based on the ocular inspection conducted by the CLUPPI Inspection Team, it was found
that the area remained agricultural. In fact, it is still dominantly planted withsugar cane and
corn.50

(Emphasis supplied)

Upon respondents motion for reconsideration, Secretary Pangandaman also took into
consideration the recommendations of the Center for Land Use Policy, Planning, and
Implementation Committee, thus:

During the 50th Special CLUPPI Committee-B Meeting, held on 18 December 2007, the
Motion for Reconsideration filed by Sylvia Espirilla [sic] was deliberated upon and the
Committee recommended the DENIAL of the Motion for Reconsideration based on the
following grounds:

The certifications issued by the HLURB shows that the subject properties were classified as
agricultural before 15 June 1986 [sic]; and

Based on the ocular inspection conducted by the CLUPPI Inspection Team, it was found out
that the area remained agricultural. In fact, it [is] still dominantly planted with sugar cane and
1wphi1

corn.51 (Emphasis supplied)

Secretary Pangandaman also found that:

The certifications submitted by the [respondents] which is the Certification dated 18

November 2003, of Mr. David D. David, Planning Officer IV and Zoning Administrator of the
City of Angeles states that the City Planning Development Office, Zoning Administration Unit
(CPDOZAU) certifies that the subject properties covered by TCT No. T-11804 is classified as
agricultural based on the certified photocopy of Zoning Ordinance, Ordinance No. 13[,] Series
of 1978 issued by the Housing and Land Use Regulatory Board, Regional Office No. 3
(HLURB-Region III) on 03 September 2001.

Such certification was corroborated bya certification issued by the HLURB Regional Director,
Region III, Ms. Edithat [sic] Barrameda in its certification dated 28 May 2001 and 24
November 2003. It was stated in the said certification that the subject landholding is within the
agricultural zone based on Comprehensive LandUse Plan and Zoning Ordinance of the City
Council of Angeles City approved through HLURB Resolution No. 705 dated 17 October 2001.
Also a certification was issued by Director Barrameda on 01 June 2001, stating therein that,
"Duplicate copies of the Certification issued by this Board toMs. Lutgarda Torres on 18
December 1991 and 8 July 1998, respectively are not among the files for safekeeping when
she assumed as Regional Officer on 03 July 2000.["]52 (Emphasis supplied)

These findings were sustained on appeal by the Office of the President, stating that:

[Respondents'] argument that the land has ceased to be agricultural by virtue of

reclassification under Ordinance No. 13, series of 1978 cannot be sustained since the records
of the case or the evidence presented thereto are bereft of any indication showing the same.
In fact, nowhere was it shown that a certified true copy of the said Ordinance was presented
before this Office or the office a quo.53

The factual findings of administrative agencies are generally given great respect and finality
by the courts as it is presumed that these agencies have the knowledge and expertise over
matters under their jurisdiction.54 Both the Department of Agrarian Reform and the Office of
the President found respondent's lands to be agricultural. We see no reason to disturb these
findings.

WHEREFORE, the petition is GRANTED. The decision dated September 28, 2012 and
resolution dated November 29, 2012 of the Court of Appeals are SET ASIDE. The order dated
June 15, 2006 of the Department of Agrarian Reform and the decision dated May 7, 2009 of
the Office of the President are REINSTATED.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL CASTILLO JOSE CATRAL MENDOZA

Associate Justice Associate Justice

BIENVENIDO L. REYES*
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

*
Designated acting member per Special Order No. 1844 dated October 14, 2014.

1 Rollo, pp. 8-21.

2 Id. at 26-42. The decision was penned by Associate Justice Ricardo R. Rosario and
concurred in by Division.

3 Id. at 44. The resolution was penned by Associate Justice Ricardo R. Rosario and concurred
in by Associate Justices Rosmari D. Carandang (Chairperson) and Leoncia Real-Dimagiba of
the Fifth Division.

4 Id. at 4752.

5 Id. at 27 and 77.

6
Id. at 27.

7
Id. at 47.

8 Id. at 27.

9 Id. at 45.

10 Id. at 4950.

11
Id. at 5357.

12
Id. at 54.

13 Id. at 5455.
14 Id. at 5863.

15 Id. at 3031.

16 Id. at 65.

17
Id. at 7071.

18
Id. at 70.

19 Id. at 6573.

20
Id. at 7475.

21 Id. at 7680.

22 Id. at 81.

23
222 Phil. 365 (1985) [Per J. Aquino, Second Division].

24
Rollo, pp. 8182.

25 Id. at 31.

26 Id. at 33.

27
Id. at 31 and 37.

28
Id. at 3839. CONST., art. VII, sec. 13 provides:

Section 13. The President,Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.

....

29 Id. at 4142.

30 Id. at 44.

31
Id. at 19.

32
Id. at 20.

33 Id. at 106108.
34 Id. at 37.

35 Rules of Procedure for Agrarian Law Implementation (ALI) cases.

36 Rollo, p. 70.

37
577 Phil. 370 (2008) [Per J. Ynares-Santiago, Third Division].

Id. at 380, citing Autencio v. City Administrator Maara and the City of Cotabato, 489 Phil.
38

752, 760 (2005) [Per J. Panganiban, Third Division] and Casimiro v. Tandog, 498 Phil. 660,
666667 (2005) [Per J. Chico-Nazario, Second Division].

39
Rollo, p. 37.

See Meet the Management, <http://www.sec.gov.ph/aboutsec/management.html> (visited

40

September 15, 2014).

41
G.R. No. 191644, February 19, 2013, 691 SCRA 196 [Per J. Bersamin, En Banc].

42Id. at 224, citing Dimaandal v. Commission on Audit, 353 Phil. 525, 533534 (1998) [Per J.
Martinez, En Banc]; Civil Service Commission v. Joson, Jr.,G.R. No. 154674, May 27, 2004,
429 SCRA 773, 786 [Per J. Callejo, Sr., En Banc]; Topacio v. Ong, 595 Phil. 491, 506 (2008)
[Per J. Carpio Morales, En Banc]; Seeres v. Commission on Elections, 603 Phil. 552, 569
(2009) [Per J. Velasco, Jr., En Banc].

Bustillo v. People, G.R. No. 160718, May 12, 2010, 620 SCRA483, 492 [Per J. Del Castillo,
43

Second Division], citing People v. De Guzman, G.R. No. 106025, February 9, 1994, 229
SCRA 795, 799 [Per J. Puno, Second Division].

44
G.R. No. 188299, January 23, 2013, 689 SCRA 207 [Per J. Perez, Second Division].

Id. at 226227, citing Heirs of Dr. Jose Deleste v. Land Bank of the Philippines, G.R. No.
45

169913, June 8, 2011, 651 SCRA 352, 376 [Per J. Velasco, Jr., First Division]; Pasong
Bayabas Farmers Association, Inc. v. Court of Appeals, 473 Phil. 64, 94 (2004) [Per J. Callejo,
Sr., Second Division]; Buklod nang Magbubukid sa Lupaing Ramos, Inc. v. E.M. Ramos and
Sons, Inc., G.R. No. 131481, March 16, 2011, 645 SCRA 401, 432 [Per J. Leonardo-De
Castro, First Division].

46 Rep. Act No. 6657 (1988), sec. 4.

47 Department of Justice Opinion No. 44 (1990).

48
503 Phil. 154 (2005) [Per J. Panganiban, Third Division].

49
Id. at 165.

50 Rollo, p. 67.

51 Id. at 70.
52 Id. at 7071.

53 Id. at 79.

54See Junia v. Secretary Garilao, 503 Phil. 154, 167 (2005) [Per J. Panganiban, Third
Division].
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 85468 September 7, 1989

QUINTIN S. DOROMAL, petitioner,

vs.
SANDIGANBAYAN, OMBUDSMAN AND SPECIAL PROSECUTOR, respondents.

GRIO-AQUINO, J.:

Brought up for review before this Court is the order dated August 19, 1988 of the
Sandiganbayan denying petitioner's motion to quash the information against him in Criminal
Case No. 12893, entitled "People of the Philippines vs. Hon. Quintin S. Doromal," and the
Sandiganbayan's order suspending him from office during the pendency of the case.

In October 1987, Special Prosecution Officer II, Dionisio A. Caoili, conducted a preliminary
investigation of the charge against the petitioner, Quintin S. Doromal, a former Commissioner
of the Presidential Commission on Good Government (PCGG), for- violation of the Anti-Graft
and Corrupt Practices Act (RA 3019), Sec. 3(h), in connection with his shareholdings and
position as president and director of the Doromal International Trading Corporation (DITC)
which submitted bids to supply P61 million worth of electronic, electrical, automotive,
mechanical and airconditioning equipment to the Department of Education, Culture and
Sports (or DECS) and the National Manpower and Youth Council (or NMYC).

On January 25,1988, with the approval of Special Prosecutor Raul Gonzales, Caoili filed in
the Sandiganbayan an information against the petitioner (Criminal Case No. 12766) alleging :

That in or about the period from April 28, 19866 to October 16, 1987, in Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, a
public officer, being then Commissioner of the Presidential Commission on Good Government,
did then and there wilfully and unlawfully have direct or indirect financial interest in the
Doromal International Trading Corporation, an entity which transacted or entered into a
business transaction or contract with the Department of Education, Culture and Sports and
the National Manpower and Youth Council, both agencies of the government which business,
contracts or transactions he is prohibited by law and the constitution from having any interest.
(pp. 246-247, Rollo; Emphasis supplied.)

The petitioner filed a petition for certiorari and prohibition in this Court questioning the
jurisdiction of the "Tanodbayan" to file the information without the approval of the
Ombudsman after the effectivity of the 1987 Constitution (G.R. No. 81766, entitled "Doromal
vs. Sandiganbayan").

On June 30, 1988, this Court annulled the information in accordance with its decision in the
consolidated cases ofZaldivar vs. Sandiganbayan, G.R. Nos. 79690-707 and Zaldivar vs.
Gonzales, G.R. No. 80578, April 27, 1988 (160 SCRA 843), where it ruled that:
... the incumbent Tanodbayan (called Special Prosecutor under the 1987 Constitution and
who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly
without authority to conduct preliminary investigations and to direct the filing of criminal cases
with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost
effective February 2, 1 987. From that time, he has been divested of such authority.

Upon the annulment of the information against the petitioner, the Special Prosecutor sought
clearance from the Ombudsman to refile it.

In a Memorandum dated July 8,1988, the Ombudsman, Honorable Conrado Vasquez,

granted clearance but advised that "some changes be made in the information previously
filed." (p. 107, Rollo.)

Complying with that Memorandum, a new information, duly approved by the Ombudsman,
was filed in the Sandiganbayan (Criminal Case No. 12893), alleging that:

..., the above-named accused [Doromal] a public officer, being then a Commissioner of the
Presidential Commission on Good Government, did then and there wilfully and unlawfully,
participate in a business through the Doromal International Trading Corporation, a family
corporation of which he is the President, and which company participated in the biddings
conducted by the Department of Education, Culture and Sports and the National Manpower &
Youth Council, which act or participation is prohibited by law and the constitution. (p. 68, Rollo;
Emphasis supplied.)

On July 25, 1988, petitioner filed a "Motion to Quash" the information for being:

(a) invalid because there had been no preliminary investigation; and

(b) defective because the facts alleged do not constitute the offense charged (Annex C).

The Sandiganbayan denied the motion to quash in its orders dated July 25,1988 and August
19,1988 (Annexes D, N and 0, pp. 81,173 & 179, Rollo).

On August 22, 1988, the Special Prosecutor filed a "Motion to Suspend Accused Pendente
Lite" pursuant to Section 13 of the Anti- Graft and Corrupt Practices Act (R.A. 3019). Over the
petitioner's objection (because the President had earlier approved his application for indefinite
leave of absence as PCGG commissioner "effective immediately and until final decision of the
courts in your case" [Annex S-1, p. 189, Rollo]), the Sandiganbayan on September 5, 1988
ordered his suspension pendente lite from his position as PCGG Commissioner and from any
other office he may be holding (Annex T). His motion for reconsideration of that order was
also denied by the Court (Annex Y). Hence, this petition for certiorari and prohibition alleging
that the Sandiganbayan gravely abused its discretion: (1) in denying the petitioner's motion to
quash the information in Criminal Case No. 12893; and, (2) in suspending the petitioner from
office despite the President's having previously approved his indefinite leave of absence "
until final decision" in this case.

The petitioner contends that as the preliminary investigation that was conducted prior to the
filing of the original information in Criminal Case No. 12766 was nullified by this Court,
another preliminary investigation should have been conducted before the new information in
Criminal Case No. 12893 was filed against him. The denial of his right to such investigation
allegedly violates his right to due process and constitutes a ground to quash the information.
On the other hand, the public respondent argues that another preliminary investigation is
unnecessary because both old and new informations involve the same subject matter a
violation of Section 3 (H) of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act) in
relation to Section 13, Article VII of the 1987 Constitution. Moreover, the petitioner allegedly
waived the second preliminary investigation by his failure to comply with the Court's Order
dated August 12, 1988 directing him to submit a statement of new or additional facts, duly
supported by photo copies of documents which he would present should a new preliminary
investigation be ordered (Annex H, p. 94, Rollo).

The petition is meritorious. A new preliminary investigation of the charge against the petitioner
is in order not only because the first was a nullity (a dead limb on the judicial tree which
should be lopped off and wholly disregarded"-Anuran vs. Aquino, 38 Phil. 29) but also
because the accused demands it as his right. Moreover, the charge against him had been
changed, as directed by the Ombudsman.

Thus, while the first information in Criminal Case No. 12766 charge that the DITC-

entered into a business transaction or contract with the Department of Education, Culture and
Sports and the National Manpower and Youth Council, ... which business, contracts or
transactions he [petitioner] is prohibited by law and the constitution from having any interest.
(P. 70, Rollo.)

the new information in Criminal Case No. 12883 alleges that the petitioner:

unlawfully participate[d] in a business through the Doromal International Trading Corporation,

a family corporation of which he is the President, and which company participated in the
biddings conducted by the Department of Education, Culture and Sports and the National
Manpower & Youth Council, which act or participation is prohibited by law and the constitution.
(p. 68, Rollo.)

The petitioner's right to a preliminary investigation of the new charge is secured to him by the
following provisions of Rule 112 of the 1985 Rules on Criminal Procedure:

SEC. 3. Procedure. ... no complaint or information for an offense cognizable by the Regional
Trial Court shall be filed without a preliminary investigation having been first conducted. .....

SEC. 7. When accused lawfully arrested without warrant.- When a person is lawfully arrested
without a warrant for an offense cognizable by the Regional Trial Court, the complaint or
information may be filed by the offended party, peace officer or fiscal without a preliminary
investigation having been first conducted; on the basis of the affidavit of the offended party or
arresting officer or person.

However, before the filing of such complaint or information, the person arrested may ask for a
preliminary investigation by a proper officer in accordance with this Rules ....

If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same right to adduce evidence in his
favor in the manner prescribed in this Rule.
That right of the accused is "a substantial one." Its denial over his opposition is a "prejudicial
error, in that it subjects the accused to the loss of life, liberty, or property without due process
of law" (U.S. vs. Marfori, 35 Phil. 666).

The need to conduct a new preliminary investigation when the defendant demands it and the
allegations of the complaint have been amended, has been more than once affirmed by this
Court:

III. (a) ..., the Court finds that since the information for alleged violation of the Anti-Graft Law
was filed without any previous notice to petitioners and due preliminary investigation thereof,
and despite the dismissal of the original charge for falsification as being 'without any factual or
legal basis, 'petitioners are entitled to a new preliminary investigation for the graft charge, with
all the rights to which they are entitled under section 1 of Republic Act No. 5180, approved
September 8, 1967, as invoked by them anew from respondent court, viz, the submittal of the
testimonies in affidavit form of the complainant and his witnesses duly sworn to before the
investigating fiscal, and the right of accused, through counsel, to cross-examine them and to
adduce evidence in their defense. In line with the settled doctrine as restated in People vs.
Abejuela (38 SCRA 324), respondent court shall hold in abeyance all proceedings in the case
before it until after the outcome of such new preliminary investigation. (Luciano vs. Mariano,
40 SCRA 187, 201; emphasis ours).

The right of the accused not to be brought to trial except when remanded therefor as a result
of a preliminary examination before a committing magistrate, it has been held is a substantial
one. Its denial over the objections of the accused is prejudicial error in that it subjects the
accused to the loss of life, liberty or property without due process of law. (Conde vs. Judge of
Court of First Instance of Tayabas, 45 Phil. 173,176.)

The absence of a preliminary investigation if it is not waived may amount to a denial of due
process. (San Diego vs. Hernandez, 24 SCRA 110, 114.)

In this jurisdiction, the preliminary investigation in criminal cases is not a creation of the
Constitution;its origin is statutory and it exists and the right thereto can be invoked when so
established and granted by law. (Mariano Marcos, et al. vs. Roman A. Cruz, 68 Phil. 96;
Emphasis supplied.)

The Solicitor General's argument that the right to a preliminary investigation may be waived
and was in fact waived by the petitioner, impliedly admits that the right exists. Since the right
belongs to the accused, he alone may waive it. If he demands it, the State may not withhold it.

However, as the absence of a preliminary investigation is not a ground to quash the complaint
or information (Sec. 3, Rule 117, Rules of Court), the proceedings upon such information in
the Sandiganbayan should be held in abeyance and the case should be remanded to the
office of the Ombudsman for him or the Special Prosecutor to conduct a preliminary
investigation. Thus did We rule in Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile
139 SCRA 349 and more recently in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4:

The absence of preliminary investigation does not affect the court's jurisdiction over the case.
Nor do they impair the validity of the information or otherwise render it defective; but, if there
were no preliminary investigations and the defendants, before entering their plea, invite the
attention of the court to their absence, the court, instead of dismissing the information should
conduct such investigation, order the fiscal to conduct it or remand the case to the inferior
court so that the preliminary investigation may be conducted. (See People vs. Gomez, 117
SCRA 72, 77-78; citing People vs. Casiano, 1 SCRA 478). In this case, the Tanodbayan has
the duty to conduct the said investigation.

There is no merit in petitioner's insistence that the information should be quashed because
the Special Prosecutor admitted in the Sandiganbayan that he does not possess any
document signed and/or submitted to the DECS by the petitioner after he became a PCGG
Commissioner (p. 49, Rollo). That admission allegedly belies the averment in the information
that the petitioner "participated' in the business of the DITC in which he is prohibited by the
Constitution or by law from having any interest. (Sec. 3-h, RA No. 3019).

The Sandiganbayan in its order of August 19, 1988 correctly observed that "the presence of a
signed document bearing the signature of accused Doromal as part of the application to bid ...
is not a sine qua non" (Annex O, p. 179. Rollo), for, the Ombudsman indicated in his
Memorandum/Clearance to the Special Prosecutor, that the petitioner "can rightfully be
charged ...with having participated in a business which act is absolutely prohibited by Section
13 of Article VII of the Constitution" because "the DITC remained a family corporation in which
Doromal has at least an indirect interest." (pp. 107-108, Rollo).

Section 13, Article VII of the 1987 Constitution provides that "the President, Vice-President,
the members of the Cabinet and their deputies or assistants shall not... during (their)
tenure, ...directly or indirectly... participate in any business." The constitutional ban is similar
to the prohibition in the Civil Service Law (PD No. 807, Sec. 36, subpar. 24) that "Pursuit of
private business ... without the permission required by Civil Service Rules and Regulations"
shall be a ground for disciplinary action against any officer or employee in the civil service.

On the suspension of the petitioner from office, Section 13 of the Anti-Graft and Corrupt
Practices Act (RA 3019) provides:

SEC. 13. Suspension and loss of benefits.-Any public officer against whom any criminal
prosecution under a valid information under this Act or under the provisions of the Revised
Penal Code on bribery is pending in court, shall be suspended from office. Should he be
convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but
if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which
he failed to receive during suspension, unless in the meantime administrative proceedings
have been filed against him.

Since the petitioner is an incumbent public official charged in a valid information with an
offense punishable under the Constitution and the laws (RA 3019 and PD 807), the law's
command that he "shall be suspended from office"pendente lite must be obeyed. His
approved leave of absence is not a bar to his preventive suspension for, as indicated by the
Solicitor General, an approved leave, whether it be for a fixed or indefinite period, may be
cancelled or shortened at will by the incumbent.

Nevertheless, as we held in Layno, Sr. vs. Sandiganbayan, 136 SCRA 536 (1985), a
preventive suspension for an indefinite period of time, such as one that would last until the
case against the incumbent official shall have been finally terminated, would (4 outrun the
bounds of reason and result in sheer oppression" and a denial of due process.

In the case of Garcia vs. The Executive Secretary, 6 SCRA 1 (1962), this Court ordered the
immediate reinstatement, to his position as chairman of the National Science Development
Board, of a presidential appointee whose preventive suspension had lasted for nearly seven
(7) months. Some members of the Court held that the maximum period of sixty (60) days
provided in Section 35 of the Civil Service Act of 1959 (Republic Act 2260) was applicable to
the petitioner. The others believed, however, that period may not apply strictly to cases of
presidential appointees, nevertheless, the preventive suspension shall be limited to a
reasonable period. Obviously, the Court found the petitioner's preventive suspension for
seven (7) months to be unreasonable. The Court stated:

To adopt the theory of respondents that an officer appointed by the President, facing
administrative charges can be preventively suspended indefinitely, would be to countenance
a situation where the preventive suspension can, in effect, be the penalty itself without a
finding of guilt after due hearing; contrary to the express mandate of the Constitution (No
officer or employee in the Civil Service shall be removed or suspended except for cause as
provided by law. [Art. XII, Sec. 4, Constitution of the Philippines]) and the Civil Service Law
(No officer or employee in the Civil Service shall be removed or suspended except for cause
as provided by law and after due process). ... In the guise of a preventive suspension, his
term of office could be shortened and he could, in effect, be removed without a finding of a
cause duly established after due hearing, in violation of the Constitution. ....

Pursuant to the guarantee of equal protection of the laws in the Bill of Rights of our
Constitution, that same ruling was applied in Deloso vs. Sandiganbayan, G.R. Nos.
86899-903, May 15,1989.

The petitioner herein is no less entitled to similar protection. Since his preventive suspension
has exceeded the reasonable maximum period of ninety (90) days provided in Section 42 of
the Civil Service Decree of the Philippines (P.D. 807), it should now be lifted.

WHEREFORE, the petition for certiorari and prohibition is granted. The Sandiganbayan shall
immediately remand Criminal Case No. 12893 to the Office of the Ombudsman for preliminary
investigation and shall hold in abeyance the proceedings before it pending the result of such
investigation. The preventive suspension of the petitioner is hereby lifted. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur.
 Republic of the Philippines
Supreme Court
Manila
EN BANC

ARTURO M. DE CASTRO, G. R. No. 191002

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL

(JBC) and PRESIDENT GLORIA
MACAPAGAL ARROYO,
Respondents.
x-----------------------x
JAIME N. SORIANO, G.R. No. 191032
Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL

(JBC),
Respondent.
x-----------------------x
PHILIPPINE CONSTITUTION G.R. No. 191057
ASSOCIATION (PHILCONSA),
Petitioner,
- versus -

JUDICIAL AND BAR COUNCIL

(JBC),
Respondent.
x-----------------------x
IN RE APPLICABILITY OF A.M. No. 10-2-5-SC
SECTION 15, ARTICLE VII OF
THE CONSTITUTION TO
APPOINTMENTS TO THE
JUDICIARY,
ESTELITO P. MENDOZA,
Petitioner,
x-----------------------x
JOHN G. PERALTA, G.R. No. 191149
Petitioner,
- versus -

JUDICIAL AND BAR COUNCIL

(JBC).
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - -x
PETER IRVING CORVERA;

CHRISTIAN ROBERT S. LIM;

ALFONSO V. TAN, JR.;

NATIONAL UNION OF
PEOPLES LAWYERS;

MARLOU B. UBANO;

INTEGRATED BAR OF THE

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

MITCHELL JOHN L. BOISER;

BAGONG ALYANSANG BAYAN

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

WALDEN F. BELLO and

LORETTA ANN P. ROSALES;

WOMEN TRIAL LAWYERS

ORGANIZATION OF THE
PHILIPPINES, represented by
YOLANDA QUISUMBING-
JAVELLANA; BELLEZA
ALOJADO DEMAISIP;
TERESITA
GANDIONCO-OLEDAN; MA.
VERENA
KASILAG-VILLANUEVA;
MARILYN STA. ROMANA;
LEONILA DE JESUS; and G.R. No. 191342
GUINEVERE DE LEON.
Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - - -x
ATTY. AMADOR Z.
TOLENTINO, JR., (IBP
GovernorSouthern Luzon), and
ATTY. ROLAND B. INTING
(IBP GovernorEastern Visayas),
Petitioners,

- versus -
G.R. No. 191420

JUDICIAL AND BAR COUNCIL Present:

(JBC),
Respondent. PUNO, C.J.,
x-----------------------x CARPIO,
PHILIPPINE BAR CORONA,
ASSOCIATION, INC., CARPIO MORALES,
Petitioner, VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
- versus - VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
 Promulgated:
March 17, 2010
JUDICIAL AND BAR COUNCIL
and HER EXCELLENCY
GLORIA
MACAPAGAL-ARROYO,
Respondents.
x-----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J.:

The compulsory retirement of Chief Justice Reynato S. Puno by May 17,

2010 occurs just days after the coming presidential elections on May 10,
2010. Even before the event actually happens, it is giving rise to many legal
dilemmas. May the incumbent President appoint his successor, considering
that Section 15, Article VII (Executive Department) of the Constitution
prohibits the President or Acting President from making appointments
within two months immediately before the next presidential elections and up
to the end of his term, except temporary appointments to executive positions
when continued vacancies therein will prejudice public service or endanger
public safety? What is the relevance of Section 4 (1), Article VIII (Judicial
Department) of the Constitution, which provides that any vacancy in the
Supreme Court shall be filled within 90 days from the occurrence thereof, to
the matter of the appointment of his successor? May the Judicial and Bar
Council (JBC) resume the process of screening the candidates nominated or
being considered to succeed Chief Justice Puno, and submit the list of
nominees to the incumbent President even during the period of the
prohibition under Section 15, Article VII? Doesmandamus lie to compel the
submission of the shortlist of nominees by the JBC?

Precs of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta respectively

commenced G.R. No. 191002[1] and G.R. No. 191149[2] as special civil
actions for certiorari andmandamus, praying that the JBC be compelled to
submit to the incumbent President the list of at least three nominees for the
position of the next Chief Justice.

In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for

prohibition, proposes to prevent the JBC from conducting its search,
selection and nomination proceedings for the position of Chief Justice.

In G.R. No. 191057, a special civil action for mandamus,[4] the

Philippine Constitution Association (PHILCONSA) wants the JBC to submit
its list of nominees for the position of Chief Justice to be vacated by Chief
Justice Puno upon his retirement on May 17, 2010, because the incumbent
President is not covered by the prohibition that applies only to appointments
in the Executive Department.

In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a

former Solicitor General, seeks a ruling from the Court for the guidance of
the JBC on whether Section 15, Article VII applies to appointments to the
Judiciary.

In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with
the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B.
Inting, Integrated Bar of the Philippines (IBP) Governors for Southern
Luzon and Eastern Visayas, respectively, want to enjoin and restrain the JBC
from submitting a list of nominees for the position of Chief Justice to the
President for appointment during the period provided for in Section 15,
Article VII.

All the petitions now before the Court pose as the principal legal question
whether the incumbent President can appoint the successor of Chief Justice
Puno upon his retirement. That question is undoubtedly impressed with
transcendental importance to the Nation, because the appointment of the
Chief Justice is any Presidents most important appointment.
 A precedent frequently cited is In Re Appointments Dated March 30,
1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges
of the Regional Trial Court of Branch 62, Bago City and of Branch 24,
Cabanatuan City, respectively (Valenzuela),[7] by which the Court held that
Section 15, Article VII prohibited the exercise by the President of the power
to appoint to judicial positions during the period therein fixed.

In G.R. No. 191002, De Castro submits that the conflicting opinions

on the issue expressed by legal luminaries one side holds that the incumbent
President is prohibited from making appointments within two months
immediately before the coming presidential elections and until the end of her
term of office as President on June 30, 2010, while the other insists that the
prohibition applies only to appointments to executive positions that may
influence the election and, anyway, paramount national interest justifies the
appointment of a Chief Justice during the election ban has impelled the JBC
to defer the decision to whom to send its list of at least three nominees,
whether to the incumbent President or to her successor.[8] He opines that the
JBC is thereby arrogating unto itself the judicial function that is not
conferred upon it by the Constitution, which has limited it to the task of
recommending appointees to the Judiciary, but has not empowered it to
finally resolve constitutional questions, which is the power vested only in the
Supreme Court under the Constitution. As such, he contends that the JBC
acted with grave abuse of discretion in deferring the submission of the list of
nominees to the President; and that a final and definitive resolution of the
constitutional questions raised above would diffuse (sic) the tension in the
legal community that would go a long way to keep and maintain stability in
the judiciary and the political system.[9]

In G.R. No. 191032, Soriano offers the view that the JBC committed a
grave abuse of discretion amounting to lack or excess of its jurisdiction
when it resolved unanimously on January 18, 2010 to open the search,
nomination, and selection process for the position of Chief Justice to succeed
Chief Justice Puno, because the appointing authority for the position of
Chief Justice is the Supreme Court itself, the Presidents authority being
limited to the appointment of the Members of the Supreme Court. Hence, the
JBC should not intervene in the process, unless a nominee is not yet a
Member of the Supreme Court.[10]

For its part, PHILCONSA observes in its petition in G.R. No. 191057
that unorthodox and exceptional circumstances spawned by the discordant
interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art.
VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution have
bred a frenzied inflammatory legal debate on the constitutional provisions
mentioned that has divided the bench and the bar and the general public as
well, because of its dimensional impact to the nation and the people, thereby
fashioning transcendental questions or issues affecting the JBCs proper
exercise of its principal function of recommending appointees to the
Judiciary by submitting only to the President (not to the next President) a list
of at least three nominees prepared by the Judicial and Bar Council for every
vacancy from which the members of the Supreme Court and judges of the
lower courts may be appointed.[11] PHILCONSA further believes and
submits that now is the time to revisit and review Valenzuela, the strange
and exotic Decision of the Court en banc.[12]

Peralta states in his petition in G.R. No. 191149 that mandamus can
compel the JBC to immediately transmit to the President, within a
reasonable time, its nomination list for the position of chief justice upon the
mandatory retirement of Chief Justice Reynato S. Puno, in compliance with
its mandated duty under the Constitution in the event that the Court resolves
that the President can appoint a Chief Justice even during the election ban
under Section 15, Article VII of the Constitution.[13]

The petitioners in G.R. No. 191342 insist that there is an actual

controversy, considering that the JBC has initiated the process of receiving
applications for the position of Chief Justice and has in fact begun the
evaluation process for the applications to the position, and is perilously near
completing the nomination process and coming up with a list of nominees
for submission to the President, entering into the period of the ban on
midnight appointments on March 10, 2010, which only highlights the
pressing and compelling need for a writ of prohibition to enjoin such alleged
ministerial function of submitting the list, especially if it will be cone within
the period of the ban on midnight appointments.[14]
Antecedents

These cases trace their genesis to the controversy that has arisen from
the forthcoming compulsory retirement of Chief Justice Puno on May 17,
2010, or seven days after the presidential election. Under Section 4(1), in
relation to Section 9, Article VIII, that vacancy shall be filled within ninety
days from the occurrence thereof from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy.

On December 22, 2009, Congressman Matias V. Defensor, an ex

officio member of the JBC, addressed a letter to the JBC, requesting that the
process for nominations to the office of the Chief Justice be commenced
immediately.

In its January 18, 2010 meeting en banc, therefore, the JBC passed a
resolution,[15] which reads:

The JBC, in its en banc meeting of January 18, 2010, unanimously

agreed to start the process of filling up the position of Chief Justice to be
vacated on May 17, 2010 upon the retirement of the incumbent Chief
Justice Honorable Reynato S. Puno.

It will publish the opening of the position for applications or

recommendations; deliberate on the list of candidates; publish the names
of candidates; accept comments on or opposition to the applications;
conduct public interviews of candidates; and prepare the shortlist of
candidates.

As to the time to submit this shortlist to the proper appointing

authority, in the light of the Constitution, existing laws and jurisprudence,
the JBC welcomes and will consider all views on the matter.

18 January 2010.

(sgd.)
 MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or
recommendation, and published for that purpose
[16]
its announcement dated January 20, 2010, viz:

The Judicial and Bar Council (JBC) announces the opening for
application or recommendation, of the position of CHIEF JUSTICE OF
THE SUPREME COURT, which will be vacated on 17 May 2010 upon
the retirement of the incumbent Chief Justice, HON. REYNATO S.
PUNO.

Applications or recommendations for this position must be submitted

not later than 4 February 2010 (Thursday) to the JBC Secretariat xxx:
The announcement was published on January 20, 2010 in
the Philippine Daily Inquirer and The Philippine Star.[17]

Conformably with its existing practice, the JBC automatically considered for
the position of Chief Justice the five most senior of the Associate Justices of
the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice
Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate
Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B.
Nachura. However, the last two declined their nomination through letters
dated January 18, 2010 and January 25, 2010, respectively.[18]

Others either applied or were nominated. Victor Fernandez, the retired

Deputy Ombudsman for Luzon, applied, but later formally withdrew his
name from consideration through his letter dated February 8, 2010.
Candidates who accepted their nominations without conditions were
Associate Justice Renato C. Corona; Associate Justice Teresita J.
Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate
Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted
their nominations with conditions were Associate Justice Antonio T. Carpio
and Associate Justice Conchita Carpio Morales.[19] Declining their
nominations were Atty. Henry Villarica (via telephone conversation with the
Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M.
Batiller, Jr. (via telephone conversation with the Executive Officer of the
JBC on February 8, 2010).[20]

The JBC excluded from consideration former RTC Judge Florentino Floro
(for failure to meet the standards set by the JBC rules); and Special
Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to
cases pending in the Office of the Ombudsman).[21]

In its meeting of February 8, 2010, the JBC resolved to proceed to the next
step of announcing the names of the following candidates to invite the public
to file their sworn complaint, written report, or opposition, if any, not later
than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice
Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De
Castro, Associate Justice Brion, and Associate Justice Sandoval.
The announcement came out in the Philippine Daily Inquirer and The
Philippine Star issues of February 13, 2010.[22]

Issues

Although it has already begun the process for the filling of the
position of Chief Justice Puno in accordance with its rules, the JBC is not yet
decided on when to submit to the President its list of nominees for the
position due to the controversy now before us being yet unresolved. In the
meanwhile, time is marching in quick step towards May 17, 2010 when the
vacancy occurs upon the retirement of Chief Justice Puno.

The actions of the JBC have sparked a vigorous debate not only
among legal luminaries, but also among non-legal quarters, and brought out
highly disparate opinions on whether the incumbent President can appoint
the next Chief Justice or not. Petitioner Mendoza notes that
in Valenzuela, which involved the appointments of two judges of the
Regional Trial Court, the Court addressed this issue now before us as an
administrative matter to avoid any possible polemics concerning the matter,
but he opines that the polemics leading to Valenzuela would be miniscule
[sic] compared to the polemics that have now erupted in regard to the current
controversy, and that unless put to a halt, and this may only be achieved by a
ruling from the Court, the integrity of the process and the credibility of
whoever is appointed to the position of Chief Justice, may irreparably be
impaired.[23]

Accordingly, we reframe the issues as submitted by each petitioner in the

order of the chronological filing of their petitions.

G.R. No. 191002

a. Does the JBC have the power and authority to resolve the
constitutional question of whether the incumbent President
can appoint a Chief Justice during the election ban period?

b. Does the incumbent President have the power and authority

to appoint during the election ban the successor of Chief
Justice Puno when he vacates the position of Chief Justice
on his retirement on May 17, 2010?

G.R. No. 191032

a. Is the power to appoint the Chief Justice vested in the

Supreme Court en banc?

G.R. No. 191057

a. Is the constitutional prohibition against appointment under

Section 15, Article VII of the Constitution applicable only to
positions in the Executive Department?

b. Assuming that the prohibition under Section 15, Article VII

of the Constitution also applies to members of the Judiciary,
may such appointments be excepted because they are
 impressed with public interest or are demanded by the
exigencies of public service, thereby justifying these
appointments during the period of prohibition?

c. Does the JBC have the authority to decide whether or not to

include and submit the names of nominees who manifested
interest to be nominated for the position of Chief Justice on
the understanding that his/her nomination will be submitted
to the next President in view of the prohibition against
presidential appointments from March 11, 2010 until June
30, 2010?

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

a. Does Section 15, Article VII of the Constitution apply to

appointments to positions in the Judiciary under Section 9,
Article VIII of the Constitution?

b. May President Gloria Macapagal-Arroyo make appointments

to the Judiciary after March 10, 2010, including that for the
position of Chief Justice after Chief Justice Puno retires
on May 17, 2010?

G.R. No. 191149

a. Does the JBC have the discretion to withhold the submission

of the short list to President Gloria Macapagal-Arroyo?

G.R. No. 191342

a. Does the JBC have the authority to submit the list of

nominees to the incumbent President without committing a
grave violation of the Constitution and jurisprudence
prohibiting the incumbent President from
making midnight appointments two months immediately
preceding the next presidential elections until the end of her
term?
 b. Is any act performed by the JBC, including the vetting of the
candidates for the position of Chief Justice, constitutionally
invalid in view of the JBCs illegal composition allowing
each member from the Senate and the House of
Representatives to have one vote each?

On February 16, 2010, the Court directed the JBC and the Office of
the Solicitor General (OSG) to comment on the consolidated petitions,
except that filed in G.R. No. 191342.

On February 26, 2010, the JBC submitted its comment, reporting

therein that the next stage of the process for the selection of the nominees for
the position of Chief Justice would be the public interview of the candidates
and the preparation of the short list of candidates, including the interview of
the constitutional experts, as may be needed.[24] It stated:[25]

Likewise, the JBC has yet to take a position on when to submit the
shortlist to the proper appointing authority, in light of Section 4
(1), Article VIII of the Constitution, which provides that vacancy
in the Supreme Court shall be filled within ninety (90) days from
the occurrence thereof, Section 15, Article VII of the Constitution
concerning the ban on Presidential appointments two (2) months
immediately before the next presidential elections and up to the
end of his term and Section 261 (g), Article XXII of the Omnibus
Election Code of the Philippines.

12. Since the Honorable Supreme Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these
consolidated Petitions and Administrative Matter.

On February 26, 2010, the OSG also submitted its comment,

essentially stating that the incumbent President can appoint the successor of
Chief Justice Puno upon his retirement by May 17, 2010.

The OSG insists that: (a) a writ of prohibition cannot issue to prevent
the JBC from performing its principal function under the Constitution to
recommend appointees in the Judiciary; (b) the JBCs function to recommend
is a continuing process, which does not begin with each vacancy or end with
each nomination, because the goal is to submit the list of nominees to
Malacaang on the very day the vacancy arises;[26] the JBC was thus acting
within its jurisdiction when it commenced and set in motion the process of
selecting the nominees to be submitted to the President for the position of
Chief Justice to be vacated by Chief Justice Puno;[27] (c) petitioner Sorianos
theory that it is the Supreme Court, not the President, who has the power to
appoint the Chief Justice, is incorrect, and proceeds from his
misinterpretation of the phrase members of the Supreme Court found in
Section 9, Article VIII of the Constitution as referring only to the Associate
Justices, to the exclusion of the Chief Justice; [28] (d) a writ of mandamus can
issue to compel the JBC to submit the list of nominees to the President,
considering that its duty to prepare the list of at least three nominees is
unqualified, and the submission of the list is a ministerial act that the JBC is
mandated to perform under the Constitution; as such, the JBC, the nature of
whose principal function is executive, is not vested with the power to resolve
who has the authority to appoint the next Chief Justice and, therefore, has no
discretion to withhold the list from the President; [29] and (e) a writ
of mandamus cannot issue to compel the JBC to include or exclude
particular candidates as nominees, considering that there is no imperative
duty on its part to include in or exclude from the list particular individuals,
but, on the contrary, the JBCs determination of who it nominates to the
President is an exercise of a discretionary duty.[30]

The OSG contends that the incumbent President may appoint the next
Chief Justice, because the prohibition under Section 15, Article VII of the
Constitution does not apply to appointments in the Supreme Court. It argues
that any vacancy in the Supreme Court must be filled within 90 days from its
occurrence, pursuant to Section 4(1), Article VIII of the Constitution; [31] that
in their deliberations on the mandatory period for the appointment of
Supreme Court Justices, the framers neither mentioned nor referred to the
ban against midnight appointments, or its effects on such period, or vice
versa;[32] that had the framers intended the prohibition to apply to Supreme
Court appointments, they could have easily expressly stated so in the
Constitution, which explains why the prohibition found in Article VII
(Executive Department) was not written in Article VIII (Judicial
Department); and that the framers also incorporated in Article VIII ample
restrictions or limitations on the Presidents power to appoint members of the
Supreme Court to ensure its independence from political vicissitudes and its
insulation from political pressures,[33] such as stringent qualifications for the
positions, the establishment of the JBC, the specified period within which
the President shall appoint a Supreme Court Justice.

The OSG posits that although Valenzuela involved the appointment of

RTC Judges, the situation now refers to the appointment of the next Chief
Justice to which the prohibition does not apply; that, at any
rate, Valenzuela even recognized that there might be the imperative need for
an appointment during the period of the ban, like when the membership of
the Supreme Court should be so reduced that it will have no quorum, or
should the voting on a particular important question requiring expeditious
resolution be divided;[34] and that Valenzuela also recognized that the filling
of vacancies in the Judiciary is undoubtedly in the public interest, most
especially if there is any compelling reason to justify the making of the
appointments during the period of the prohibition.[35]

Lastly, the OSG urges that there are now undeniably compelling
reasons for the incumbent President to appoint the next Chief Justice, to wit:
(a) a deluge of cases involving sensitive political issues is quite
expected;[36] (b) the Court acts as the Presidential Electoral Tribunal (PET),
which, sitting en banc, is the sole judge of all contests relating to the election,
returns, and qualifications of the President and Vice President and, as such,
has the power to correct manifest errors on the statement of votes (SOV) and
certificates of canvass (COC);[37] (c) if history has shown that
during ordinary times the Chief Justice was appointed immediately upon the
occurrence of the vacancy, from the time of the effectivity of the
Constitution, there is now even more reason to appoint the next Chief Justice
immediately upon the retirement of Chief Justice Puno;[38] and (d) should the
next Chief Justice come from among the incumbent Associate Justices of the
Supreme Court, thereby causing a vacancy, it also becomes incumbent upon
the JBC to start the selection process for the filling up of the vacancy in
accordance with the constitutional mandate.[39]

On March 9, 2010, the Court admitted the following

comments/oppositions-in-intervention, to wit:

(a) The opposition-in-intervention dated February 22, 2010 of

Atty. Peter Irving Corvera (Corvera);[40]

(b) The opposition-in-intervention dated February 22, 2010 of

Atty. Christian Robert S. Lim (Lim);

(c) The opposition-in-intervention dated February 23, 2010 of

Atty. Alfonso V. Tan, Jr. (Tan);

(d) The comment/opposition-in-intervention dated March 1,

2010 of the National Union of Peoples Lawyers (NUPL);

(e) The opposition-in-intervention dated February 25, 2010 of

Atty. Marlou B. Ubano (Ubano);

(f) The opposition-in-intervention dated February 25, 2010 of

Integrated Bar of the Philippines-Davao del Sur Chapter and
its Immediate Past President, Atty. Israelito P. Torreon (IBP-
Davao del Sur);

(g) The opposition-in-intervention dated February 26, 2010 of

Atty. Mitchell John L. Boiser (Boiser);

(h)The consolidated comment/opposition-in-intervention dated

February 26, 2010 of BAYAN Chairman Dr. Carolina P.
Araullo; BAYAN Secretary General Renato M. Reyes, Jr.;
Confederation for Unity, Recognition and Advancement of
Government Employees (COURAGE) Chairman Ferdinand
Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY)
Secretary General Gloria Arellano; Alyansa ng
 Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran
(ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang
Pag-asa Convenor Alvin Peters; League of Filipino Students
(LFS) Chairman James Mark Terry Lacuanan Ridon;
National Union of Students of the Philippines (NUSP)
Chairman Einstein Recedes, College Editors Guild of the
Philippines (CEGP) Chairman Vijae Alquisola; and Student
Christian Movement of the Philippines (SCMP) Chairman
Ma. Cristina Angela Guevarra (BAYAN et al.);

(i) The opposition-in-intervention dated March 3, 2010 of

Walden F. Bello and Loretta Ann P. Rosales (Bello et al.);
and

(j) The consolidated comment/opposition-in-intervention dated

March 4, 2010 of the Women Trial Lawyers Organization of
the Philippines (WTLOP), represented by Atty. Yolanda
Quisumbing-Javellana; Atty. Belleza Alojado Demaisip;
Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena
Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty.
Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao

del Sur, and NUPL take the position that De Castros petition was bereft of
any basis, because under Section 15, Article VII, the outgoing President is
constitutionally banned from making any appointments from March 10,
2010 until June 30, 2010, including the appointment of the successor of
Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to
submit the list of nominees to the outgoing President if the constitutional
prohibition is already in effect. Tan adds that the prohibition against
midnight appointments was applied by the Court to the appointments to the
Judiciary made by then President Ramos, with the Court holding that the
duty of the President to fill the vacancies within 90 days from occurrence of
the vacancies (for the Supreme Court) or from the submission of the list (for
all other courts) was not an excuse to violate the constitutional prohibition.
 Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and
Bello et al. oppose the insistence that Valenzuela recognizes the possibility
that the President may appoint the next Chief Justice if exigent
circumstances warrant the appointment, because that recognition is obiter
dictum; and aver that the absence of a Chief Justice or even an Associate
Justice does not cause epic damage or absolute disruption or paralysis in the
operations of the Judiciary. They insist that even without the successor of
Chief Justice Puno being appointed by the incumbent President, the Court is
allowed to sit and adjudge en banc or in divisions of three, five or seven
members at its discretion; that a full membership of the Court is not
necessary; that petitioner De Castros fears are unfounded and baseless, being
based on a mere possibility, the occurrence of which is entirely unsure; that
it is not in the national interest to have a Chief Justice whose appointment is
unconstitutional and, therefore, void; and that such a situation will create a
crisis in the judicial system and will worsen an already vulnerable political
situation.

ice is imperative for the stability of the judicial system and the political
situation in the country when the election-related questions reach the Court as
false, because there is an existing law on filling the void brought about by a
vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary
Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any
other law; that a temporaryor an acting Chief Justice is not anathema to judicial
independence; that the designation of an acting Chief Justice is not only
provided for by law, but is also dictated by practical necessity; that the
practicewas intended to be enshrined in the 1987 Constitution, but the
Commissioners decided not to write it in the Constitution on account of the
settled practice; that the practice was followed under the 1987 Constitution,
when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan,
Associate Justice Andres Narvasa assumed the position as Acting Chief Justice
prior to his official appointment as Chief Justice; that said filling up of a
vacancy in the office of the Chief Justice was acknowledged and even used by
analogy in the case of the vacancy of the Chairman of the Commission on
Elections, perBrillantes v. Yorac, 192 SCRA 358; and that the history of the
Supreme Court has shown that this rule of succession has been repeatedly
observed and has become a part of its tradition.
 Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that
the Omnibus Election Code penalizes as an election offense the act of any
government official who appoints, promotes, or gives any increase in salary
or remuneration or privilege to any government official or employee during
the period of 45 days before a regular election; that the provision covers all
appointing heads, officials, and officers of a government office, agency or
instrumentality, including the President; that for the incumbent President to
appoint the next Chief Justice upon the retirement of Chief Justice Puno, or
during the period of the ban under the Omnibus Election Code, constitutes
an election offense; that even an appointment of the next Chief Justice prior
to the election ban is fundamentally invalid and without effect because there
can be no appointment until a vacancy occurs; and that the vacancy for the
position can occur only by May 17, 2010.

Intervenor Boiser adds that De Castros prayer to compel the

submission of nominees by the JBC to the incumbent President is
off-tangent because the position of Chief Justice is still not vacant; that to
speak of a list, much more a submission of such list, before a vacancy occurs
is glaringly premature; that the proposed advance appointment by the
incumbent President of the next Chief Justice will be unconstitutional; and
that no list of nominees can be submitted by the JBC if there is no vacancy.

All the intervenors-oppositors submit that Section 15, Article VII makes no
distinction between the kinds of appointments made by the President; and
that the Court, inValenzuela, ruled that the appointments by the President of
the two judges during the prohibition period were void.

Intervenor WTLOP posits that Section 15, Article VII of the 1987
Constitution does not apply only to the appointments in the Executive
Department, but also to judicial appointments, contrary to the submission of
PHILCONSA; that Section 15 does not distinguish; and
that Valenzuela already interpreted the prohibition as applicable to judicial
appointments.
 Intervenor WTLOP further posits that petitioner Sorianos contention
that the power to appoint the Chief Justice is vested, not in the President, but
in the Supreme Court, is utterly baseless, because the Chief Justice is also a
Member of the Supreme Court as contemplated under Section 9, Article VIII;
and that, at any rate, the term members was interpreted in Vargas v.
Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice
and the Associate Justices of the Supreme Court; that PHILCONSAs prayer
that the Court pass a resolution declaring that persons who manifest their
interest as nominees, but with conditions, shall not be considered nominees
by the JBC is diametrically opposed to the arguments in the body of its
petition; that such glaring inconsistency between the allegations in the body
and the relief prayed for highlights the lack of merit of PHILCONSAs
petition; that the role of the JBC cannot be separated from the constitutional
prohibition on the President; and that the Court must direct the JBC to
follow the rule of law, that is, to submit the list of nominees only to the next
duly elected President after the period of the constitutional ban against
midnight appointments has expired.

Oppositor IBP Davao del Sur opines that the JBC because it is neither
a judicial nor a quasi-judicial body has no duty under the Constitution to
resolve the question of whether the incumbent President can appoint a Chief
Justice during the period of prohibition; that even if the JBC has already
come up with a short list, it still has to bow to the strict limitations under
Section 15, Article VII; that should the JBC defer submission of the list, it is
not arrogating unto itself a judicial function, but simply respecting the clear
mandate of the Constitution; and that the application of the general rule
in Section 15, Article VII to the Judiciary does not violate the principle of
separation of powers, because said provision is an exception.

Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the
JBCs act of nominating appointees to the Supreme Court is purely
ministerial and does not involve the exercise of judgment; that there can be
no default on the part of the JBC in submitting the list of nominees to the
President, considering that the call for applications only begins from the
occurrence of the vacancy in the Supreme Court; and that the
commencement of the process of screening of applicants to fill the vacancy
in the office of the Chief Justice only begins from the retirement on May 17,
2010, for, prior to this date, there is no definite legal basis for any party to
claim that the submission or non-submission of the list of nominees to the
President by the JBC is a matter of right under law.

The main question presented in all the filings herein because it

involves two seemingly conflicting provisions of the
Constitution imperatively demands the attention and resolution of this Court,
the only authority that can resolve the question definitively and finally. The
imperative demand rests on the ever-present need, first, to safeguard the
independence, reputation, and integrity of the entire Judiciary, particularly
this Court, an institution that has been unnecessarily dragged into the harsh
polemics brought on by the controversy; second, to settle once and for all the
doubt about an outgoing Presidents power to appoint to the Judiciary within
the long period starting two months before the presidential elections until the
end of the presidential term; and third, to set a definite guideline for the JBC
to follow in the discharge of its primary office of screening and nominating
qualified persons for appointment to the Judiciary.

Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners

The preliminary issue to be settled is whether or not the petitioners

have locus standi.

Black defines locus standi as a right of appearance in a court of justice

on a given question.[41] In public or constitutional litigations, the Court is
often burdened with the determination of the locus standi of the petitioners
due to the ever-present need to regulate the invocation of the intervention of
the Court to correct any official action or policy in order to avoid obstructing
the efficient functioning of public officials and offices involved in public
service. It is required, therefore, that the petitioner must have a personal
stake in the outcome of the controversy, for, as indicated in Agan, Jr.
v. Philippine International Air Terminals Co., Inc.:[42]

The question on legal standing is whether such parties have

alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions.[43] Accordingly, it has been held that
the interest of a person assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law
or any government act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.[44]

It is true that as early as in 1937, in People v. Vera,[45] the Court

adopted the direct injury test for determining whether a petitioner in a public
action had locus standi.There, the Court held that the person who would
assail the validity of a statute must have a personal and substantial interest in
the case such that he has sustained, or will sustain direct injury as a
result. Vera was followed in Custodio v. President of the Senate,[46] Manila
Race Horse Trainers Association v. De la Fuente,[47] Anti-Chinese League of
the Philippines v. Felix,[48] and Pascual v. Secretary of Public Works.[49]

Yet, the Court has also held that the requirement of locus standi, being
a mere procedural technicality, can be waived by the Court in the exercise of
its discretion. For instance, in 1949, in Araneta v. Dinglasan,[50] the Court
liberalized the approach when the cases had transcendental
importance. Some notable controversies whose petitioners did not pass
the direct injury test were allowed to be treated in the same way as
in Araneta v. Dinglasan.[51]

In the 1975 decision in Aquino v. Commission on Elections,[52] this Court

decided to resolve the issues raised by the petition due to their far-reaching
implications, even if the petitioner had no personality to file the suit. The
liberal approach of Aquino v. Commission on Elections has been adopted in
several notable cases, permitting ordinary citizens,legislators, and civic
organizations to bring their suits involving the constitutionality or validity of
laws, regulations, and rulings.[53]

However, the assertion of a public right as a predicate for challenging

a supposedly illegal or unconstitutional executive or legislative action rests
on the theory that the petitioner represents the public in general. Although
such petitioner may not be as adversely affected by the action complained
against as are others, it is enough that he sufficiently demonstrates in his
petition that he is entitled to protection or relief from the Court in the
vindication of a public right.

Quite often, as here, the petitioner in a public action sues as

a citizen or taxpayer to gain locus standi. That is not surprising, for even if
the issue may appear to concern only the public in general, such capacities
nonetheless equip the petitioner with adequate interest to sue. In David v.
Macapagal-Arroyo,[54] the Court aptly explains why:

Case law in most jurisdictions now allows both citizen and taxpayer
standing in public actions. The distinction was first laid down
in Beauchamp v. Silk,[55] where it was held that the plaintiff in a 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:[56] 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[57] held that the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use
of public funds to his injury cannot be denied.[58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032)

and Peralta (G.R. No. 191149) all assert their right as citizens filing their
petitions on behalf of the public who are directly affected by the issue of the
appointment of the next Chief Justice. De Castro and Soriano further claim
standing as taxpayers, with Soriano averring that he is affected by the
continuing proceedings in the JBC, which involve unnecessary, if not, illegal
disbursement of public funds.[59]

PHILCONSA alleges itself to be a non-stock, non-profit organization

existing under the law for the purpose of defending, protecting, and
preserving the Constitution and promoting its growth and flowering. It also
alleges that the Court has recognized its legal standing to file cases on
constitutional issues in several cases.[60]

In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the

Philippines, a member of the Philippine Bar engaged in the active practice of
law, and a former Solicitor General, former Minister of Justice, former
Member of the Interim Batasang Pambansa and the Regular Batasang
Pambansa, and former member of the Faculty of the College of Law of the
University of the Philippines.

The petitioners in G.R. No. 191342 are the Governors of the

Integrated Bar of the Philippines (IBP) for Southern Luzon and Eastern
Visayas. They allege that they have the legal standing to enjoin the
submission of the list of nominees by the JBC to the President, for [a]n
adjudication of the proper interpretation and application of the constitutional
ban on midnight appointments with regard to respondent JBCs function in
submitting the list of nominees is well within the concern of petitioners, who
are duty bound to ensure that obedience and respect for the Constitution is
upheld, most especially by government offices, such as respondent JBC,
who are specifically tasked to perform crucial functions in the whole scheme
of our democratic institution. They further allege that, reposed in them as
members of the Bar, is a clear legal interest in the process of selecting the
members of the Supreme Court, and in the selection of the Chief Justice,
considering that the person appointed becomes a member of the body that
has constitutional supervision and authority over them and other members of
the legal profession.[61]
The Court rules that the petitioners have each demonstrated adequate
interest in the outcome of the controversy as to vest them with the
requisite locus standi. The issues before us are of transcendental importance
to the people as a whole, and to the petitioners in particular. Indeed, the
issues affect everyone (including the petitioners), regardless of ones personal
interest in life, because they concern that great doubt about the authority of
the incumbent President to appoint not only the successor of the retiring
incumbent Chief Justice, but also others who may serve in the Judiciary,
which already suffers from a far too great number of vacancies in the ranks
of trial judges throughout the country.

In any event, the Court retains the broad discretion to waive the
requirement of legal standing in favor of any petitioner when the matter
involved has transcendental importance, or otherwise requires a
liberalization of the requirement.[62]

Yet, if any doubt still lingers about the locus standi of any petitioner,
we dispel the doubt now in order to remove any obstacle or obstruction to
the resolution of the essential issue squarely presented herein. We are not to
shirk from discharging our solemn duty by reason alone of an obstacle more
technical than otherwise. In Agan, Jr. v.Philippine International Air
Terminals Co., Inc.,[63] we pointed out: Standing is a peculiar concept in
constitutional law because in some cases, suits are not brought by parties
who have been personally injured by the operation of a law or any other
government act but by concerned citizens, taxpayers or voters who actually
sue in the public interest. But even if, strictly speaking, the petitioners are
not covered by the definition, it is still within the wide discretion of the
Court to waive the requirement and so remove the impediment to its
addressing and resolving the serious constitutional questions raised.[64]

Justiciability

Intervenor NUPL maintains that there is no actual case or controversy

that is appropriate or ripe for adjudication, considering that although the
selection process commenced by the JBC is going on, there is yet no final
list of nominees; hence, there is no imminent controversy as to whether such
list must be submitted to the incumbent President, or reserved for submission
to the incoming President.

Intervenor Tan raises the lack of any actual justiciable controversy

that is ripe for judicial determination, pointing out that petitioner De Castro
has not even shown that the JBC has already completed its selection process
and is now ready to submit the list to the incumbent President; and that
petitioner De Castro is merely presenting a hypothetical scenario that is
clearly not sufficient for the Court to exercise its power of judicial review.

Intervenors Corvera and Lim separately opine that De Castros petition

rests on an overbroad and vague allegation of political tension, which is
insufficient basis for the Court to exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a

mere advisory opinion on what the JBC and the President should do, and are
not invoking any issues that are justiciable in nature.

Intervenors Bello et al. submit that there exist no conflict of legal

rights and no assertion of opposite legal claims in any of the petitions; that
PHILCONSA does not allege any action taken by the JBC, but simply avers
that the conditional manifestations of two Members of the Court, accented
by the divided opinions and interpretations of legal experts, or associations
of lawyers and law students on the issues published in the daily newspapers
are matters of paramount and transcendental importance to the bench, bar
and general public; that PHILCONSA fails not only to cite any legal duty or
allege any failure to perform the duty, but also to indicate what specific
action should be done by the JBC; that Mendoza does not even attempt to
portray the matter as a controversy or conflict of rights, but, instead, prays
that the Court should rule for the guidance of the JBC; that the fact that the
Court supervises the JBC does not automatically imply that the Court can
rule on the issues presented in the Mendoza petition, because supervision
involves oversight, which means that the subordinate officer or body must
first act, and if such action is not in accordance with prescribed rules, then,
and only then, may the person exercising oversight order the action to be
redone to conform to the prescribed rules; that the Mendoza petition does not
allege that the JBC has performed a specific act susceptible to correction for
being illegal or unconstitutional; and that the Mendoza petition asks the
Court to issue an advisory ruling, not to exercise its power of supervision to
correct a wrong act by the JBC, but to declare the state of the law in the
absence of an actual case or controversy.

We hold that the petitions set forth an actual case or controversy that
is ripe for judicial determination. The reality is that the JBC already
commenced the proceedings for the selection of the nominees to be included
in a short list to be submitted to the President for consideration of which of
them will succeed Chief Justice Puno as the next Chief Justice. Although the
position is not yet vacant, the fact that the JBC began the process of
nomination pursuant to its rules and practices, although it has yet to decide
whether to submit the list of nominees to the incumbent outgoing President
or to the next President, makes the situation ripe for judicial determination,
because the next steps are the public interview of the candidates, the
preparation of the short list of candidates, and the interview of constitutional
experts, as may be needed.

A part of the question to be reviewed by the Court is whether the JBC

properly initiated the process, there being an insistence from some of the
oppositors-intervenors that the JBC could only do so once the vacancy has
occurred (that is, after May 17, 2010). Another part is, of course, whether
the JBC may resume its process until the short list is prepared, in view of the
provision of Section 4(1), Article VIII, which unqualifiedly requires the
President to appoint one from the short list to fill the vacancy in the Supreme
Court (be it the Chief Justice or an Associate Justice) within 90 days from
the occurrence of the vacancy.

The ripeness of the controversy for judicial determination may not be

doubted. The challenges to the authority of the JBC to open the process of
nomination and to continue the process until the submission of the list of
nominees; the insistence of some of the petitioners to compel the JBC
through mandamus to submit the short list to the incumbent President; the
counter-insistence of the intervenors to prohibit the JBC from submitting the
short list to the incumbent President on the ground that said list should be
submitted instead to the next President; the strong position that the
incumbent President is already prohibited under Section 15, Article VII from
making any appointments, including those to the Judiciary, starting on May
10, 2010 until June 30, 2010; and the contrary position that the incumbent
President is not so prohibited are only some of the real issues for
determination. All such issues establish the ripeness of the controversy,
considering that for some the short list must be submitted before the vacancy
actually occurs byMay 17, 2010. The outcome will not be an abstraction, or
a merely hypothetical exercise. The resolution of the controversy will surely
settle with finality the nagging questions that are preventing the JBC from
moving on with the process that it already began, or that are reasons
persuading the JBC to desist from the rest of the process.

We need not await the occurrence of the vacancy by May 17, 2010 in
order for the principal issue to ripe for judicial determination by the Court. It
is enough that one alleges conduct arguably affected with a constitutional
interest, but seemingly proscribed by the Constitution. A reasonable
certainty of the occurrence of the perceived threat to a constitutional interest
is sufficient to afford a basis for bringing a challenge, provided the Court has
sufficient facts before it to enable it to intelligently adjudicate the
issues.[65]Herein, the facts are not in doubt, for only legal issues remain.

Substantive Merits

I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides:

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

The other, Section 4 (1), Article VIII (Judicial Department), states:

Section 4. (1). The Supreme Court shall be composed of a Chief

Justice and fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members. Any vacancy shall
be filled within ninety days from the occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of

Soriano, Tolentino and Inting, submit that the incumbent President can
appoint the successor of Chief Justice Puno upon his retirement on May 17,
2010, on the ground that the prohibition against presidential appointments
under Section 15, Article VII does not extend to appointments in the
Judiciary.

The Court agrees with the submission.

First. The records of the deliberations of the Constitutional

Commission reveal that the framers devoted time to meticulously drafting,
styling, and arranging the Constitution. Such meticulousness indicates that
the organization and arrangement of the provisions of the Constitution were
not arbitrarily or whimsically done by the framers, but purposely made to
reflect their intention and manifest their vision of what the Constitution
should contain.

The Constitution consists of 18 Articles, three of which embody the

allocation of the awesome powers of government among the three great
departments, the Legislative (Article VI), the Executive (Article VII), and
the Judicial Departments (Article VIII). The arrangement was a true
recognition of the principle of separation of powers that underlies the
political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a
worthy member of the Court) explained in his sponsorship speech:

We have in the political part of this Constitution opted for the

separation of powers in government because we believe that the only way
to protect freedom and liberty is to separate and divide the awesome
powers of government. Hence, we return to the separation of powers
doctrine and the legislative, executive and judicial departments.[66]

As can be seen, Article VII is devoted to the Executive Department,

and, among others, it lists the powers vested by the Constitution in the
President. The presidential power of appointment is dealt with in Sections 14,
15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and defines the

duties and qualifications of Members of the Supreme Court, among others.
Section 4(1) and Section 9 of this Article are the provisions specifically
providing for the appointment of Supreme Court Justices. In particular,
Section 9 states that the appointment of Supreme Court Justices can only be
made by the President upon the submission of a list of at least three
nominees by the JBC; Section 4(1) of the Article mandates the President to
fill the vacancy within 90 days from the occurrence of the vacancy.

Had the framers intended to extend the prohibition contained in

Section 15, Article VII to the appointment of Members of the Supreme
Court, they could have explicitly done so. They could not have ignored the
meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in Section 15,
Article VII as being equally applicable to the appointment of Members of
the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article
VIII. That such specification was not done only reveals that the prohibition
against the President or Acting President making appointments within two
months before the next presidential elections and up to the end of the
Presidents or Acting Presidents term does not refer to the Members of the
Supreme Court.
 Although Valenzuela[67] came to hold that the prohibition covered
even judicial appointments, it cannot be disputed that the Valenzuela dictum
did not firmly rest on the deliberations of the Constitutional Commission.
Thereby, the confirmation made to the JBC by then Senior Associate Justice
Florenz D. Regalado of this Court, a former member of the Constitutional
Commission, about the prohibition not being intended to apply to the
appointments to the Judiciary, which confirmation Valenzuela even
expressly mentioned, should prevail.

Relevantly, Valenzuela adverted to the intent of the framers in the genesis of

Section 4 (1), Article VIII, viz:

V . Intent of the Constitutional Commission

The journal of the Commission which drew up the present

Constitution discloses that the original proposal was to have an
eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to
increase the number of Justices to fifteen. He also wished to ensure that
that number would not be reduced for any appreciable length of time (even
only temporarily), and to this end proposed that any vacancy must be filled
within two months from the date that the vacancy occurs. His proposal to
have a 15-member Court was not initially adopted. Persisting however in
his desire to make certain that the size of the Court would not be decreased
for any substantial period as a result of vacancies, Lerum proposed the
insertion in the provision (anent the Courts membership) of the same
mandate that IN CASE OF ANY VACANCY, THE SAME SHALL BE
FILLED WITHIN TWO MONTHS FROM OCCURRENCE
THEREOF. He later agreed to suggestions to make the period three,
instead of two, months. As thus amended, the proposal was approved. As
it turned out, however, the Commission ultimately agreed on a
fifteen-member Court. Thus it was that the section fixing the
composition of the Supreme Court came to include a command to fill
up any vacancy therein within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction that any
vacancy shall be filled within ninety days (in the last sentence of Section 4
(1) of Article VIII) contrasts with the prohibition in Section 15, Article VII,
which is couched in stronger negative language - that a President or
Acting President shall not make appointments
 The commission later approved a proposal of Commissioner Hilario
G. Davide, Jr. (now a Member of this Court) to add to what is now Section
9 of Article VIII, the following paragraph: WITH RESPECT TO LOWER
COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT
WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST (of
nominees by the Judicial and Bar Council to the President). Davide stated
that his purpose was to provide a uniform rule for lower courts. According
to him, the 90-day period should be counted from submission of the list of
nominees to the President in view of the possibility that the President
might reject the list submitted to him and the JBC thus need more time to
submit a new one.

On the other hand, Section 15, Article VII - which in effect deprives
the President of his appointing power two months immediately before the
next presidential elections up to the end ofhis term - was approved without
discussion.[68]

However, the reference to the records of the Constitutional Commission did

not advance or support the result in Valenzuela. Far to the contrary, the
records disclosed the express intent of the framers to enshrine in the
Constitution, upon the initiative of Commissioner Eulogio Lerum, a
command [to the President] to fill up any vacancy therein within 90 days
from its occurrence, which even Valenzuela conceded.[69] The exchanges
during deliberations of the Constitutional Commission on October 8,
1986 further show that the filling of a vacancy in the Supreme Court within
the 90-day period was a true mandate for the President, viz:

MR. DE CASTRO. I understand that our justices now in the Supreme

Court, together with the Chief Justice, are only 11.

MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this subsection

reads: Any vacancy shall be filled within ninety days from the
occurrence thereof.

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is this now a mandate to the executive to fill the

vacancy?
 MR. CONCEPCION. That is right. That is borne out of the fact
that in the past 30 years, seldom has the Court had a complete
complement.[70]
Moreover, the usage in Section 4(1), Article VIII of the word shall an
imperative, operating to impose a duty that may be enforced[71] should not be
disregarded. Thereby, Sections 4(1) imposes on the President
the imperative duty to make an appointment of a Member of the Supreme
Court within 90 days from the occurrence of the vacancy. The failure by the
President to do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the
President to fill the vacancy in the Supreme Court was undoubtedly a special
provision to establish adefinite mandate for the President as the appointing
power, and cannot be defeated by mere judicial interpretation
in Valenzuela to the effect that Section 15, Article VII prevailed because it
was couched in stronger negative language. Such interpretation even turned
out to be conjectural, in light of the records of the Constitutional
Commissions deliberations on Section 4 (1), Article VIII.

How Valenzuela justified its pronouncement and result is hardly

warranted. According to an authority on statutory construction:[72]

xxx the court should seek to avoid any conflict in the provisions of
the statute by endeavoring to harmonize and reconcile every part so that
each shall be effective. It is not easy to draft a statute, or any other writing
for that matter, which may not in some manner contain conflicting
provisions. But what appears to the reader to be a conflict may not have
seemed so to the drafter. Undoubtedly, each provision was inserted for a
definite reason. Often by considering the enactment in its entirety, what
appears to be on its face a conflict may be cleared up and the provisions
reconciled.

Consequently, that construction which will leave every word

operative will be favored over one which leaves some word or provision
meaningless because of inconsistency. But a word should not be given
effect, if to do so gives the statute a meaning contrary to the intent of the
legislature. On the other hand, if full effect cannot be given to the words of
a statute, they must be made effective as far as possible. Nor should the
provisions of a statute which are inconsistent be harmonized at a sacrifice
of the legislative intention. It may be that two provisions are irreconcilable;
if so, the one which expresses the intent of the law-makers should control.
And the arbitrary rule has been frequently announced that where there is
 an irreconcilable conflict between the different provisions of a statute, the
provision last in order of position will prevail, since it is the latest
expression of the legislative will. Obviously, the rule is subject to deserved
criticism. It is seldom applied, and probably then only where an
irreconcilable conflict exists between different sections of the same act,
and after all other means of ascertaining the meaning of the legislature
have been exhausted. Where the conflict is between two statutes, more
may be said in favor of the rules application, largely because of the
principle of implied repeal.

In this connection, PHILCONSAs urging of a revisit and a review

of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the
express intent of the Constitutional Commission to have Section 4 (1),
Article VIII stand independently of any other provision, least of all one
found in Article VII. It further ignored that the two provisions had no
irreconcilable conflict, regardless of Section 15, Article VII being couched
in the negative. As judges, we are not to unduly interpret, and should not
accept an interpretation that defeats the intent of the framers.[73]

Consequently, prohibiting the incumbent President from appointing a Chief

Justice on the premise that Section 15, Article VII extends to appointments
in the Judiciary cannot be sustained. A misinterpretation
like Valenzuela should not be allowed to last after its false premises have
been exposed.[74] It will not do to merely distinguish Valenzuela from these
cases, for the result to be reached herein is entirely incompatible with
what Valenzuela decreed. Consequently, Valenzuela now deserves to be
quickly sent to the dustbin of the unworthy and forgettable.

We reverse Valenzuela.

Second. Section 15, Article VII does not apply as well to

all other appointments in the Judiciary.

There is no question that one of the reasons underlying the adoption of

Section 15 as part of Article VII was to
eliminate midnight appointments from being made by anoutgoing Chief
Executive in the mold of the appointments dealt with in the leading case
of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed, stating
that:

xxx it appears that Section 15, Article VII is directed against two
types of appointments: (1) those made for buying votes and (2) those made
for partisan considerations. The first refers to those appointments made
within the two months preceding a Presidential election and are similar to
those which are declared election offenses in the Omnibus Election
Code, viz.:

xxx

The second type of appointments prohibited by Section 15, Article

VII consists of the so-called midnight appointments. In Aytona v.
Castillo, it was held that after the proclamation of Diosdado Macapagal as
duly elected President, President Carlos P. Garcia, who was defeated in his
bid for reelection, became no more than a caretaker administrator whose
duty was to prepare for the orderly transfer of authority to the incoming
President. Said the Court:

The filling up of vacancies in important positions, if few, and so

spaced as to afford some assurance of deliberate action and careful
consideration of the need for the appointment and appointee's
qualifications may undoubtedly be permitted. But the issuance of
350 appointments in one night and the planned induction of almost
all of them in a few hours before the inauguration of the new
President may, with some reason, be regarded by the latter as an
abuse of Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all vacant positions
irrespective of fitness and other conditions, and thereby to deprive
the new administration of an opportunity to make the
corresponding appointments.

As indicated, the Court recognized that there may well be

appointments to important positions which have to be made even after the
proclamation of the new President. Such appointments, so long as they
are few and so spaced as to afford some assurance of deliberate action
and careful consideration of the need for the appointment and the
appointees qualifications, can be made by the outgoing
President. Accordingly, several appointments made by President Garcia,
which were shown to have been well considered, were upheld.

Section 15, Article VII has a broader scope than

the Aytona ruling. It may not unreasonably be deemed to contemplate
not only midnight appointments those made obviously for partisan
reasons as shown by their number and the time of their making but
 also appointments presumed made for the purpose of influencing the
outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article

VII allowing appointments to be made during the period of the ban therein
provided is much narrower than that recognized in Aytona. The exception
allows only the making of temporary appointments to executive positions
when continued vacancies will prejudice public service or endanger
public safety. Obviously, the article greatly restricts the appointing power
of the President during the period of the ban.

Considering the respective reasons for the time frames for filling
vacancies in the courts and the restriction on the President's power of
appointment, it is this Courts view that, as a general proposition, in case of
conflict, the former should yield to the latter. Surely, the prevention of
vote-buying and similar evils outweighs the need for avoiding delays in
filling up of court vacancies or the disposition of some cases. Temporary
vacancies can abide the period of the ban which, incidentally and as
earlier pointed out, comes to exist only once in every six years.Moreover,
those occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and permanent
in their effects. They may, as earlier pointed out, in fact influence the
results of elections and, for that reason, their making is considered an
election offense.[76]

Given the background and rationale for the prohibition in Section 15,
Article VII, we have no doubt that the Constitutional Commission confined
the prohibition to appointments made in the Executive Department. The
framers did not need to extend the prohibition to appointments in the
Judiciary, because their establishment of the JBC and their subjecting the
nomination and screening of candidates for judicial positions to the
unhurried and deliberate prior process of the JBC ensured that there would
no longer bemidnight appointments to the Judiciary. If midnight
appointments in the mold of Aytona were made in haste and with
irregularities, or made by an outgoing Chief Executive in the last days of his
administration out of a desire to subvert the policies of the incoming
President or for partisanship,[77] the appointments to the Judiciary made after
the establishment of the JBC would not be suffering from such defects
because of the JBCs prior processing of candidates. Indeed, it is axiomatic in
statutory construction that the ascertainment of the purpose of the enactment
is a step in the process of ascertaining the intent or meaning of the enactment,
because the reason for the enactment must necessarily shed considerable
light on the law of the statute, i.e., the intent; hence, the enactment should be
construed with reference to its intended scope and purpose, and the court
should seek to carry out this purpose rather than to defeat it.[78]

Also, the intervention of the JBC eliminates the danger that

appointments to the Judiciary can be made for the purpose of buying votes in
a coming presidential election, or of satisfying partisan considerations. The
experience from the time of the establishment of the JBC shows that even
candidates for judicial positions at any level backed by people influential
with the President could not always be assured of being recommended for
the consideration of the President, because they first had to undergo the
vetting of the JBC and pass muster there. Indeed, the creation of the JBC
was precisely intended to de-politicize the Judiciary by doing away with the
intervention of the Commission on Appointments. This insulating process
was absent from the Aytona midnight appointment.

Third. As earlier stated, the non-applicability of Section 15, Article

VII to appointments in the Judiciary was confirmed by then Senior Associate
Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss
the question raised by some sectors about the constitutionality of xxx
appointments to the Court of Appeals in light of the forthcoming presidential
elections. He assured that on the basis of the (Constitutional) Commissions
records, the election ban had no application to appointments to the Court of
Appeals.[79] This confirmation was accepted by the JBC, which then
submitted to the President for consideration the nominations for the eight
vacancies in the Court of Appeals.[80]

The fault of Valenzuela was that it accorded no weight and due

consideration to the confirmation of Justice Regalado. Valenzuela was weak,
because it relied on interpretation to determine the intent of the framers
rather than on the deliberations of the Constitutional Commission. Much of
the unfounded doubt about the Presidents power to appoint during the period
of prohibition in Section 15, Article VII could have been dispelled since its
promulgation on November 9, 1998, had Valenzuela properly acknowledged
and relied on the confirmation of a distinguished member of the
Constitutional Commission like Justice Regalado.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14,

Section15, and Section 16) concern the appointing powers of the President.

Section 14 speaks of the power of the succeeding President to revoke

appointments made by an Acting President,[81] and evidently refers only to
appointments in the Executive Department. It has no application to
appointments in the Judiciary, because temporary or acting appointments
can only undermine the independence of the Judiciary due to their being
revocable at will.[82] The letter and spirit of the Constitution safeguard that
independence. Also, there is no law in the books that authorizes
the revocation of appointments in the Judiciary. Prior to their mandatory
retirement or resignation, judges of the first and second level courts and the
Justices of the third level courts may only be removed for cause, but the
Members of the Supreme Court may be removed only by impeachment.

Section 16 covers only the presidential appointments that require

confirmation by the Commission on Appointments. Thereby, the
Constitutional Commission restored the requirement of confirmation by the
Commission on Appointments after the requirement was removed from the
1973 Constitution. Yet, because of Section 9 of Article VIII, the restored
requirement did not include appointments to the Judiciary.[83]

Section 14, Section 15, and Section 16 are obviously of the same
character, in that they affect the power of the President to appoint. The fact
that Section 14 and Section 16 refer only to appointments within the
Executive Department renders conclusive that Section 15 also applies only
to the Executive Department. This conclusion is consistent with the rule that
every part of the statute must be interpreted with reference to the context,
i.e. that every part must be considered together with the other parts, and kept
subservient to the general intent of the whole enactment.[84] It is absurd to
assume that the framers deliberately situated Section 15 between Section 14
and Section 16, if they intended Section 15 to cover all kinds of presidential
appointments. If that was their intention in respect of appointments to the
Judiciary, the framers, if only to be clear, would have easily and surely
inserted a similar prohibition in Article VIII, most likely within Section 4 (1)
thereof.

Fifth. To hold like the Court did in Valenzuela that Section 15 extends
to appointments to the Judiciary further undermines the intent of the
Constitution of ensuring the independence of the Judicial Department from
the Executive and Legislative Departments. Such a holding will tie the
Judiciary and the Supreme Court to the fortunes or misfortunes of political
leaders vying for the Presidency in a presidential election. Consequently, the
wisdom of having the new President, instead of the current incumbent
President, appoint the next Chief Justice is itself suspect, and cannot ensure
judicial independence, because the appointee can also become beholden to
the appointing authority. In contrast, the appointment by the incumbent
President does not run the same risk of compromising judicial independence,
precisely because her term will end by June 30, 2010.

Sixth. The argument has been raised to the effect that there will be no
need for the incumbent President to appoint during the prohibition period the
successor of Chief Justice Puno within the context of Section 4 (1), Article
VIII, because anyway there will still be about 45 days of the 90 days
mandated in Section 4(1), Article VIII remaining.

The argument is flawed, because it is focused only on the coming

vacancy occurring from Chief Justice Punos retirement by May 17, 2010. It
ignores the need to apply Section 4(1) to every situation of a vacancy in the
Supreme Court.

The argument also rests on the fallacious assumption that there will
still be time remaining in the 90-day period under Section 4(1), Article VIII.
The fallacy is easily demonstrable, as the OSG has shown in its comment.
 Section 4 (3), Article VII requires the regular elections to be held on
the second Monday of May, letting the elections fall on May 8, at the earliest,
or May 14, at the latest. If the regular presidential elections are held on May
8, the period of the prohibition is 115 days. If such elections are held on May
14, the period of the prohibition is 109 days. Either period of the prohibition
is longer than the full mandatory 90-day period to fill the vacancy in the
Supreme Court. The result is that there are at least 19 occasions (i.e., the
difference between the shortest possible period of the ban of 109
days and the 90-day mandatory period for appointments) in which the
outgoing President would be in no position to comply with the constitutional
duty to fill up a vacancy in the Supreme Court. It is safe to assume that the
framers of the Constitution could not have intended such an absurdity. In
fact, in their deliberations on the mandatory period for the appointment of
Supreme Court Justices under Section 4 (1), Article VIII, the framers neither
discussed, nor mentioned, nor referred to the ban against midnight
appointments under Section 15, Article VII, or its effects on the 90-day
period, or vice versa. They did not need to, because they never intended
Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any
of the lower courts.

Seventh. As a matter of fact, in an extreme case, we can even raise a

doubt on whether a JBC list is necessary at all for the
President any President to appoint a Chief Justice if the appointee is to come
from the ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be appointed by

the President from a list of at least three nominees prepared by the Judicial
and Bar Council for any vacancy. Such appointments need no
confirmation.
xxx

The provision clearly refers to an appointee coming into the Supreme Court
from the outside, that is, a non-member of the Court aspiring to become
one. It speaks of candidates for the Supreme Court, not of those who are
already members or sitting justices of the Court, all of whom have
previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of

the Court as Chief Justice?

The question is not squarely before us at the moment, but it should

lend itself to a deeper analysis if and when circumstances permit. It should
be a good issue for the proposed Constitutional Convention to consider in
the light of Senate President Juan Ponce Enriles statement that the President
can appoint the Chief Justice from among the sitting justices of the Court
even without a JBC list.

II
The Judiciary Act of 1948

The posture has been taken that no urgency exists for the President to
appoint the successor of Chief Justice Puno, considering that the Judiciary
Act of 1948 can still address the situation of having the next President
appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. In case of a vacancy

in the office of Chief Justice of the Supreme Court or of his inability to
perform the duties and powers of his office, they shall devolve upon the
Associate Justice who is first in precedence, until such disability is
removed, or another Chief Justice is appointed and duly qualified. This
provision shall apply to every Associate Justice who succeeds to the office
of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a

vacancy in the office of the Chief Justice, or in the event that the Chief
Justice is unable to perform his duties and powers. In either of such
circumstances, the duties and powers of the office of the Chief Justice shall
devolve upon the Associate Justice who is first in precedence until a new
Chief Justice is appointed or until the disability is removed.

Notwithstanding that there is no pressing need to dwell on this peripheral

matter after the Court has hereby resolved the question of consequence, we
do not find it amiss to confront the matter now.

We cannot agree with the posture.

A review of Sections 4(1) and 9 of Article VIII shows that the Supreme
Court is composed of a Chief Justice and 14 Associate Justices, who all shall
be appointed by the President from a list of at least three nominees prepared
by the JBC for every vacancy, which appointments require no confirmation
by the Commission on Appointments. With reference to the Chief Justice, he
or she is appointed by the President as Chief Justice, and the appointment
is never in an acting capacity. The express reference to a Chief Justice
abhors the idea that the framers contemplated an Acting Chief Justice to head
the membership of the Supreme Court. Otherwise, they would have simply
written so in the Constitution. Consequently, to rely on Section 12 of the
Judiciary Act of 1948 in order to forestall the imperative need to appoint the
next Chief Justice soonest is to defy the plain intent of the Constitution.

For sure, the framers intended the position of Chief Justice to be

permanent, not one to be occupied in an acting or temporary capacity. In
relation to the scheme of things under the present Constitution, Section 12 of
the Judiciary Act of 1948 only responds to a rare situation in which the new
Chief Justice is not yet appointed, or in which the incumbent Chief Justice is
unable to perform the duties and powers of the office. It ought to be
remembered, however, that it was enacted because the Chief Justice
appointed under the 1935 Constitution was subject to the confirmation of the
Commission on Appointments, and the confirmation process might take
longer than expected.

The appointment of the next Chief Justice by the incumbent President

is preferable to having the Associate Justice who is first in precedence take
over. Under the Constitution, the heads of the Legislative and Executive
Departments are popularly elected, and whoever are elected and proclaimed
at once become the leaders of their respective Departments. However, the
lack of any appointed occupant of the office of Chief Justice harms the
independence of the Judiciary, because the Chief Justice is the head of the
entire Judiciary. The Chief Justice performs functions absolutely significant
to the life of the nation. With the entire Supreme Court being the Presidential
Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There
being no obstacle to the appointment of the next Chief Justice, aside from its
being mandatory for the incumbent President to make within the 90-day
period from May 17, 2010, there is no justification to insist that the
successor of Chief Justice Puno be appointed by the next President.

Historically, under the present Constitution, there has been no wide

gap between the retirement and the resignation of an incumbent Chief
Justice, on one hand, and the appointment to and assumption of office of his
successor, on the other hand. As summarized in the comment of the OSG,
the chronology of succession is as follows:

1. When Chief Justice Claudio Teehankee retired on April 18,

1988, Chief Justice Pedro Yap was appointed on the same
day;

2. When Chief Justice Yap retired on July 1, 1988, Chief

Justice Marcelo Fernan was appointed on the same day;

3. When Chief Justice Fernan resigned on December 7, 1991,

Chief Justice Andres Narvasa was appointed the following
day, December 8, 1991;

4. When Chief Justice Narvasa retired on November 29, 1998,

Chief Justice Hilario Davide, Jr. was sworn into office the
following early morning of November 30, 1998;

5. When Chief Justice Davide retired on December 19, 2005,

Chief Justice Artemio Panganiban was appointed the next
day, December 20, 2005; and
 6. When Chief Justice Panganiban retired on December 6,
2006, Chief Justice Reynato S. Puno took his oath as Chief
Justice at midnight of December 6, 2006.[85]

III
Writ of mandamus does not lie against the JBC

May the JBC be compelled to submit the list of nominees to the President?

Mandamus shall issue when any tribunal, corporation, board, officer or

person unlawfully neglects the performance of an act that the law
specifically enjoins as a duty resulting from an office, trust, or station.[86] It is
proper when the act against which it is directed is one addressed to the
discretion of the tribunal or officer. Mandamus is not available to direct the
exercise of a judgment or discretion in a particular way.[87]

For mandamus to lie, the following requisites must be complied with: (a) the
plaintiff has a clear legal right to the act demanded; (b) it must be the duty of
the defendant to perform the act, because it is mandated by law; (c)
the defendant unlawfully neglects the performance of the duty enjoined by
law; (d) the act to be performed is ministerial, not discretionary; and (e)
there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law.

Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a
list of at least three nominees to the President for every vacancy in the
Judiciary:

Section 8. xxx

(5) The Council shall have the principal function of

recommending appointees to the Judiciary. xxx

Section 9. The Members of the Supreme Court and judges of lower

courts shall be appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every
vacancy. Such appointments need no confirmation.
 For the lower courts, the President shall issue the appointments
within ninety days from the submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the

President to fill the vacancy in the Supreme Court within 90 days from the
occurrence of the vacancy, and within 90 days from the submission of the
list, in the case of the lower courts. The 90-day period is directed at the
President, not at the JBC. Thus, the JBC should start the process of selecting
the candidates to fill the vacancy in the Supreme Court before the occurrence
of the vacancy.

Under the Constitution, it is mandatory for the JBC to submit to the

President the list of nominees to fill a vacancy in the Supreme Court in order
to enable the President to appoint one of them within the 90-day period from
the occurrence of the vacancy. The JBC has no discretion to submit the list
to the President after the vacancy occurs, because that shortens the 90-day
period allowed by the Constitution for the President to make the
appointment. For the JBC to do so will be unconscionable on its part,
considering that it will thereby effectively and illegally deprive the President
of the ample time granted under the Constitution to reflect on the
qualifications of the nominees named in the list of the JBC before making
the appointment.

The duty of the JBC to submit a list of nominees before the start of the
Presidents mandatory 90-day period to appoint is ministerial, but its
selection of the candidates whose names will be in the list to be submitted to
the President lies within the discretion of the JBC. The object of the petitions
for mandamus herein should only refer to the duty to submit to the President
the list of nominees for every vacancy in the Judiciary, because in order to
constitute unlawful neglect of duty, there must be an unjustified delay in
performing that duty.[88] For mandamus to lie against the JBC, therefore,
there should be an unexplained delay on its part in recommending nominees
to the Judiciary, that is, in submitting the list to the President.
 The distinction between a ministerial act and a discretionary one has
been delineated in the following manner:

The distinction between a ministerial and discretionary act is well

delineated. A purely ministerial act or duty is one which an officer or
tribunal performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without regard to or the
exercise of his own judgment upon the propriety or impropriety of the
act done. If thelaw imposes a duty upon a public officer and gives him
the right to decide how or when the duty shall be performed, such
duty is discretionary and not ministerial. The duty is ministerial only
when the discharge of the same requires neither the exercise of official
discretion or judgment.[89]

Accordingly, we find no sufficient grounds to grant the petitions

for mandamus and to issue a writ of mandamus against the JBC. The actions
for that purpose are premature, because it is clear that the JBC still has
until May 17, 2010, at the latest, within which to submit the list of nominees
to the President to fill the vacancy created by the compulsory retirement of
Chief Justice Puno.

IV
Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable

that only the President can appoint the Chief Justice. Hence, Sorianos
petition for prohibition in G.R. No. 191032, which proposes to prevent the
JBC from intervening in the process of nominating the successor of Chief
Justice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is
similarly devoid of merit. The challenge mounted against the composition of
the JBC based on the allegedly unconstitutional allocation of a vote each to
the ex officio members from the Senate and the House of Representatives,
thereby prejudicing the chances of some candidates for nomination by
raising the minimum number of votes required in accordance with the rules
of the JBC, is not based on the petitioners actual interest, because they have
not alleged in their petition that they were nominated to the JBC to fill some
vacancies in the Judiciary. Thus, the petitioners lack locus standi on that
issue.

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No.

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

2. Dismisses the petitions for prohibition in G.R. No. 191032 and

G.R. No. 191342 for lack of merit; and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly,

directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates

to fill the vacancy to be created by the compulsory
retirement of Chief Justice Reynato S. Puno byMay 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.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE

CASTRO
Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified

that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

[1]
Filed on February 9, 2010.
[2]
Begun on February 23, 2010.
[3]
Initiated on February 10, 2010.
[4]
Commenced on February 11, 2010.
[5] Dated February 15, 2010.
[6]
Filed on March 8, 2010.
[7]
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
[8]
Petition in G.R. No. 191002, pp. 3-4.
[9]
Id., p. 5.
[10]
Petition in G.R. No. 191032, pp. 4-8.
[11] Petition in G.R. No. 191057, pp. 1-2.
[12]
Id., p. 11.
[13]
Petition in G.R. No. 191149.
[14]
Petition in G.R. No. 191342.
[15]
http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf
[16]
http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan22%20%2710.pdf
[17] Comment of the JBC, p. 3.
[18]
Id.
[19]
Id., pp. 4-5.
[20]
Id., p. 5.
[21]
Id.
[22]
Id., p. 6.
[23]
Petition in A.M. No. 10-2-5-SC, pp. 5-6.
[24]
Comment of the JBC, p. 6.
[25]
Id., p. 7; bold emphasis is in the original text.
[26]
Comment of the OSG, pp. 13-14.
[27]
Id., p. 14.
[28]
Id., p. 15.
[29]
Id., pp. 20-24.
[30]
Id., pp. 25-27.
[31]
Id., pp. 29-30.
[32]
Id.
[33]
Id., pp. 32-33.
[34]
Id., pp. 34-35.
[35]
Id.
[36]
Id., pp. 35-36. The OSG posits:
National interest compels the President to make such appointment for it is particularly during
this crucial period when national leaders are seeking fresh mandates from the people that the
Supreme Court, more than at any other time, represents stability. Hence, a full court is ideal to
ensure not only due deliberation on and careful consideration of issues but also expeditious
disposition of cases.
Indeed, such function becomes especially significant in view of the fact that this is the first time
that the whole country will experience automated elections.
[37]
Id., pp. 36-37. The OSG stresses:
 The possible fallouts or serious aftermath of allowing a vacuum in the position of the Chief
Justice may be greater and riskier than the consequences or repercussions of inaction. Needless to
state, the appointment of the Chief Justice of this Honorable Court (sic) is the most important
appointment vested by the 1987 Constitution to (sic) the President.
[38]
Id., p. 37.
[39]
Id., p. 38.
[40]
Filed by Atty. Pitero M. Reig.
[41]
Blacks Law Dictionary, 941 (6th Ed. 1991).
[42]
G.R. No. 155001, May 5, 2003, 402 SCRA 612.
[43]
Citing Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540,
562-563, citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 633 (1962).
[44]
Citing Kilosbayan, Inc. v. Morato, supra; Bayan v. Zamora, G.R. No. 138570, October 10, 2000; 342
SCRA 449, 478.
[45]
65 Phil. 56.
[46]
G.R. No. 117, November 7, 1945 (Unreported).
[47]
G.R. No. 2947, January 11, 1959 (Unreported).
[48]
77 Phil. 1012 (1947).
[49]
110 Phil. 331 (1960).
[50]
84 Phil. 368 (1949)
[51]
E.g., Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152 (in which the
Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of
natural resources are matters of transcendental importance which clothe the petitioner with locus
standi); Bagong Alyansang Makabayan v. Zamora, G.R. Nos. 138570, 138572, 138587, 138680, 138698,
October 10, 2000, 342 SCRA 449 (in which the Court held that given the transcendental importance of the
issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the
lack of direct injury to the parties seeking judicial review of the Visiting Forces Agreement); Lim v.
Executive Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739 (in which the Court, albeit
conceding that the petitioners might not file suit in their capacity as taxpayers without a showing
that Balikatan 02-01 involved the exercise of Congress taxing or spending powers, reiterated Bagong
Alyansang Makabayan v. Zamora, declaring that cases of transcendental importance must be settled
promptly and definitely and the standing requirements may be relaxed); and Osmea v. Commission on
Elections, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750 (in which the Court
held that where serious constitutional questions were involved, the transcendental importance to the public
of the cases demanded that they be settled promptly and definitely, brushing aside technicalities of
procedure).
[52]
L-No. 40004, January 31, 1975, 62 SCRA 275.
[53]
E.g., Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 (in which the Court held that it is
sufficient that the petitioner is a citizen interested in the execution of the law, because the question is one of
public duty and the enforcement of a public right, and the people are the real party-in-interest); Legaspi v.
Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530 (in which the Court declared
that where an assertion of a public right is involved, the requirement of personal interest is satisfied by the
mere fact that the petitioner is a citizen and is part of the general public which possesses the
right); Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30,
1988, 163 SCRA 371 (in which the Court disregarded objections to taxpayers lack of personality to sue in
determining the validity of the VAT Law); Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264
(in which the Court pronounced that although no expenditure of public funds was involved in the
questioned contract, the petitioner was nonetheless clothed with the legal personality under the disclosure
provision of the Constitution to question it, considering its important role in the economic development of
the country and the magnitude of the financial consideration involved, indicating that public interest was
definitely involved); and Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343 (in which the Court ruled that it had the discretion
to waive the requirement of locus standi in determining the validity of the implementation of the
Comprehensive Agrarian Reform Program, although the petitioners were not, strictly speaking, covered by
the definition of proper party).
[54]
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
[55] 275 Ky 91, 120 SW2d 765 (1938).
[56] 19 Wend. 56 (1837).
[57]
232 NC 48, 59 SE2d 359 (1950).
[58]
Bold emphasis is in the original text.
[59]
Petition in G.R. No. 191032, p. 2.
[60]
Petition in G.R. No. 191057, pp. 3-4; citing the cases of PHILCONSA v. Gimenez, 15 SCRA
479; PHILCONSA v. Mathay, 18 SCRA 300; PHILCONSA v. Enriquez, 235 SCRA 506; and Lambino v.
COMELEC, 505 SCRA 160.
[61]
Petition in G.R. No. 191342, pp. 2-3.
[62]
See, for instance, Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338
SCRA 81 (where the petitioner questioned the validity of the deployment and utilization of the Marines to
assist the PNP in law enforcement, asserting that IBP was the official organization of Filipino lawyers
tasked with the bounden duty to uphold the rule of law and the Constitution, but the Court held that the IBP
had not shown that it was so tasked: In this case, a reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and
weight as precedents. Moreover, because peace and order are under constant threat and lawless violence
occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal
controversy raised in the petition almost certainly will not go away. It will stare us in the face again. It,
therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than later,
and went on to resolve the issues because the petitioner advanced constitutional issues that deserved the
attention of the Court in view of their seriousness, novelty, and weight as precedents).
[63]
Supra, note 42, p. 645.
[64]
Id.
[65]
See Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail Reoganization Act Cases,
419 U.S. 102, 138-148 (1974).
[66]
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 912, October 12,
1998.
[67]
Supra, note 6, p. 426-427, stating:
Considering the respective reasons for the time frames for filling vacancies in the courts and the
restriction on the Presidents power of appointment, it is this Courts view that, as a general
proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of
vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies
or the disposition of some cases. Temporary vacancies can abide the period of the ban which,
incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those
occurring in the lower courts can be filled temporarily by designation. But prohibited appointments
are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the
results of elections and, for that reason, their making is considered an election offense.
To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should
prevail over Section 15 of Article VII, because they may be considered later expressions of the
people when they adopted the Constitution, it suffices to point out that the Constitution must be
construed in its entirety as one, single, instrument.
To be sure, instances may be conceived of the imperative need for an appointment, during the
period of the ban, not only in the executive but also in the Supreme Court. This may be the case
should the membership of the court be so reduced that it will have no quorum or should the voting
on a particularly important question requiring expeditious resolution be evenly divided. Such a case,
however, is covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII.
[68]
Id., pp. 422-423.
[69]
Id., p. 423.
[70]
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., pp. 632-633.
[71]
Dizon v. Encarnacion, G.R. No. L-18615, December 24, 1963, 9 SCRA 714.
[72]
Crawford, Earl. T., The Construction of Statutes, Thomas Law Book Company, St. Louis, Missouri,
262-264 (1940).
[73]
Garcia v. Social Security Commission Legal and Collection, G.R. No. 170735, December 17, 2007, 540
SCRA 456, 472; citing Escosura v. San Miguel Brewery, Inc., 4 SCRA 285, (1962).
[74]
According to Arizona v. Rumsey, 467 U. S. 203, 212 (1984): Although adherence to
precedent is not rigidly required in constitutional cases, any departure from the
doctrine of stare decisis demands special justification. The special justification for the
reversal of Valenzuela lies in its intrinsic unsoundness.
[75]
No. L-19313, January 19, 1962, 4 SCRA 1.
[76] Supra, note 6, pp. 424-426; bold underscoring supplied for emphasis.
[77]
Aytona v. Castillo, supra, note 74, pp. 8-10 (N.B. - In the time material to Aytona, there were judges of
the Court of First Instance who were appointed to districts that had no vacancies, because the incumbents
had not qualified for other districts to which they had been supposedly transferred or promoted; at any rate,
the appointments still required confirmation by the Commission on Appointments).
[78]
Crawford, op. cit., supra, note 72, pp. 248-249.
[79]
Supra, note 6, p. 413.
[80]
Id.
[81]
Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the
elected President within ninety days from his assumption or reassumption of office.
[82]
Cruz, I., Philippine Political Law, 253 (2002); also Rilloraza v. Vargas, 80 Phil. 297 (1948).
[83]
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 908, which indicates
that in his sponsorship speech delivered on October 12, 1986 on the floor of the Constitutional Commission,
Commissioner Teofisto Guingona explained that [a]ppointments to the judiciary shall not be subject to
confirmation by the Commission on Appointments.
[84]
Rodriguez, Statutory Construction, 171 (1999).
[85]
Comment of the OSG, p. 37.
[86]
Section 3, Rule 65, 1997 Rules of Civil Procedure.
[87]
JG Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, November 20, 2000, 345 SCRA 143.
[88]
Nery v. Gamolo, A.M. No. P-01-1508, February 7, 2003, 397 SCRA 110, citing Musni v. Morales, 315
SCRA 85, 86 (1999).
[89]
Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006, 490 SCRA 273.

. No. 146933, June 8, 2006, 490 SCRA 273.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-26979 April 1, 1927

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, plaintiffs,

vs.
MILTON E. SPINGER, DALAMACIO COSTAS, and ANSELMO HILARIO, defendants.

Attorney-General Jaranilla, F. C. Fisher, and Hugh C. Smith for plaintiff.

Jose Abad Santos; Ross, Lawrence and Selph; Paredes, Buencamino and Yulo;
Araneta and Zaragoza; Charles E. Tenney; Camus, Delgado and Recto and Mariano H. de
Joya for defendants.

MALCOLM, J.:

This is an original action of quo warranto brought in the name of the Government of the
Philippine Islands against three directors of the National Coal Company who were elected to
their positions by the legislative members of the committee created by Acts. Nos. 2705 and
2822. The purpose of the proceeding is to test the validity of the part of section 4 of Act No.
2705, as amended by section 2 of Act No. 2822, which provides that "The voting power of all
such stock (in the National Coal Company) owned by the Government of the Philippine
Islands shall be vested exclusively in a committee consisting of the Governor-General, the
President of the Senate, and the Speaker of the House of Representatives."

The material facts are averred in the complaint of the plaintiff and admitted in the demurrer of
the defendants.

The National Coal Company is a corporation organized and existing by virtue of Act No. 2705
of the Philippine Legislature as amended by Act No. 2822, and of the Corporation law. By the
terms of the charter of the corporation, the Governor-General was directed to subscribe on
behalf of the Government of the Philippine Islands for at least fifty-one per cent of the capital
of the corporation. The government eventually became the owner of more than ninety-nine
per cent of the thirty thousand outstanding shares of stocks of the National Coal Company.
Only nineteen shares stand in the names of private individuals.

On November 9, 1926, the Government-General promulgated Executive Order No. 37.

Reference was made therein to opinions of the Judge Advocate General of the United States
Army and of the Acting Attorney-General of the United States wherein it was held that the
provisions of the statutes passed by the Philippine Legislature creating a voting committee or
board of control, and enumerating the duties and powers thereof with respect to certain
corporations in which the Philippine Government is the owner of stock, are nullities.
Announcement was made that on account of the invalidity of the portions of the Acts creating
the voting committee or board of control, the Governor-General would, thereafter, exercise
exclusivelythe duties and powers theretofore assumed by the voting committee or board of
control. Notice of the contents of this executive order was given to the President of the Senate
and the Speaker of the House of Representatives. (24 Off. Gaz., 2419.)
A special meeting of the stockholders of the National Coal Company was called for December
6, 1926, at 3 o'clock in the afternoon, for the purpose of electing directors and the transaction
of such other business as migh properly come before the meeting. Prior thereto, on
November 29, 1926, the President of the Senate and the Speaker of the House of
Representatives as members of the voting committee, requested the Governor-General to
convene the committee at 2:30 p. m., on December 6, 1926, to decide upon the manner in
which the stock held by the Government in the National Coal Company should be voted.
TheGovernor-General acknowledged receipt of this communication but declined to participate
in the proposed meeting. The president of the Senate and the Speaker of the House of
Representatives did in fact meet at the time and place specified in their letter to the
Governor-General. It was then and there resolved by them that at the special meeting of the
stockholders, the votes represented by the stock of the Government in the National Coal
Company, should be cast in favor of five specified persons for directors of the company.

On December 6, 1926, at 3 o'clock in the afternoon, the special meeting of the stockholders of
the National Coal Company was held in accordance with the call. The Governor-General,
through his representative, asserted the sole power to vote the stock of the Government. The
president of the Senate and the Speaker of the House of Representatives attended the
meeting and filed with the secretary of the company a certified copy of the minutes of the
meeting of the committee held at the office of the company a half hour before. The
Governor-General, through his representative, thereupon objected to the asserted powers of
the President of the Senate and the Speaker of the House of Representatives, and the latter
likewise objected to the assertion of the Governor-General.

The chair recognized the President of the Senate and the Speaker of the House of
Representatives in their capacity as majority members of the voting committee as the persons
lawfully entitled to represent and vote the Government stock. To this the representative of the
Governor- General made protest and demanded that it be entered of record in the minutes.
The vote cast by the President of the Senate and the Speaker of the House of
Representatives was in favor of Alberto Barretto,Milton E. Springer, Dalmacio Costas,
Anselmo Hilario, and Frank B. Ingersoll. The Governor-General through his represetative,
alleging representation of the Government stock, cast his vote in favor of Alberto Barreto,
Romarico Agcaoili, Frank B. Ingersoll, H. L. Heath, and Salvador Lagdameo. The chair
declared the ballot cast by the President of the Senate and the Speaker of the House as
electing the names therein indicated, directors of the National Coal Company.

Immediately after the stockholder's meeting, the persons declared by the chairman to have
been elected, met and undertook to organized the board of directors of the National Coal
Company by the election of officers. All the directors for whom the President of the Senate
and the Speaker of the House of Representatives voted and who were declared elected at the
meeting of the stockholders participated in this meeting. Included among them, were the three
defendants, Milton E. Springer, Dalmacio Costas, and Anselmo Hilario.

The applicable legal doctrines are found in the Organic Law, particularly in the Organic Act,
the Act of Congress of August 29, 1916, and in statutes enacted under authority of that Act,
and in decisions interpretative of it.

The Government of the Philippine Islands is an agency of the Congress, the principal, has
seen fit to entrust to the Philippine Government, the agent, are distributed among three
coordinate departments, the executive, the legislative, and the judicial. It is true that the
Organic Act contains no general distributing clause. But the principle is clearly deducible from
the grant of powers. It is expressly incorporated in our Administrative Code. It has time and
again been approvingly enforced by this court.

No department of the Government of the Philippine Islands may legally exercise any of the
powers conferred by the Organic Law upon any of the others. Again it is true that the Organic
Law contains no such explicit prohibition. But it is fairly implied by the division of the
Government into three departments. The effect is the same whether the prohibition is
expressed or not. It has repeatedly been announced by this court that each of the branches of
the Government is in the main independent of the others. The doctrine is too firmly imbedded
in Philippine institutions to be debatable. (Administrative Code sec. 17; Barcelon vs. Baker
and Thompson [1905], 5 Phil., 87; U. S. vs. Bull [1910], 15 Phil., 7;
Severino vs. Governor-General and Provincial Board of Occidental Negros [1910], 16 Phil.,
366; Forbes vs. Chuoco Tiaco vs. Crossfield [1910], 16 Phil., 534; Province of Tarlac vs. Gale
[1913], 26 Phil., 338; Concepcion vs. Paredes [1921], 42 Phil., 599; U. S. vs. Ang Tang Ho
[1922], 43 Phil., 1; Abueva vs. Wood [1924], 45 Phil., 612; Alejandrino vs. Quezon [1924], 46
Phil., 83.)

It is beyond the power of any branch of the Government of the Philippine Islands to exercise
its functions in any other way than that prescribed by the Organic Law or by local laws which
conform to the Organic Law. The Governor-General must find his powers and duties in the
fundamental law. An act of the Philippine Legislature must comply with the grant from
Congress. The jurisdiction of this court and other courts is derived from the constitutional
provisions.

These canons of political science have more than ordinary significance in the Philippines. To
the Government of the Philippine Islands has been delegated a large degree of autonomy,
and the chief exponent of that autonomy in domestic affairs is the Philippine Legislature.
TheGovernor-General on the other hand of the Government and symbolizes American
sovereignty. That under such a political system, lines of demarcation between the legislative
and the executive departments are difficult to fix, and that attempted encroachments of one
on the other may occur, should not dissuade the Supreme Court, as the guardian of the
constitution, from enforcing fundamental principles.

The Organic Act vests "the supreme executive power" in the Governor- General of the
Philippine Islands. In addition to specified functions,he is given "general supervision and
control of all the departments and bureaus of the government of the Philippine Islands as far
as is not inconsistent with the provisions of this act. "He is also made "responsible for the
faithful execution of the laws of the Philippine Islands and of the United States operative
within Philippine Islands."The authority of the Governor-General is made secure by the
important proviso "that all executive functionsof Government must be directly under the
Governor-General or within one of the executive departments under thesupervision and
control of the Governor-General. "(Organic Act, secs. 21, 22.) By the Administrative Code,
"the Governor-General, as chief Executive of the Islands, is charged with the executive
control of the Philippine Government, to be exercised in person or through the Secretaries of
Departments, or other proper agency, according to law." (Se.58)

The Organic Act grants general legislative power except as otherwise provided therein to the
Philippine Legislature. (Organic Act, secs. 8, 12.) Even before the approval of the existing
Organic Act, it was held that the Philippine Legislature has practically the same powersin the
Philippine Islands within the sphere in which it may operate as the Congress of the United
States. (Chanco vs. Imperial [1916], 34 Phil., 329.) The rule judicially stated is now that an Act
of the Philippine Legislature which has not been expressly disapproved by Congress is valid,
unless the subject-matter has been covered by Congressional legislation, or its enactment
forbidden by some provision of the Organic Law. The legislative power of the Philippine
Government is granted in general terms subject to specific limitations. (Gaspar vs. Molina
[1905], 5 Phil., 197; U. S. vs. Bull, supra; In re Guarina [1913], 24 Phil., 37; U.
S. vs. Limsiongco [1920],41 Phil., 94; Concepcion vs. Paredes, supra.)

An independent judiciary completes the governmental system. Thejudicial power is conferred

on the Supreme Couts, Courts of FirstInstance, and inferior courts. (Organic Act, se. 26)

It is axiomatic that the Philippine Legislature was provided to make the law, the office of the
Governor-General to execute the law, and the judiciary to construe the law. What is legislative,
an executive, or a judicial act, as distinguished one from the other, is not alwayseasy to
ascertain. A precise classification is difficult. Negatively speaking, it has been well said that
"The legislature has no authority to execute or construe the law, the executive has no
authority to make or construe the law, and the judiciary has no power to make or execute the
law." (U. S.vs. And Tang Ho, supra.)

It is legislative power which has been vested in the Philippine Legislature. What is legislative
power? Judge Cooley says he understands it "to be the authority, under the constitution, to
make laws, and to alter and repeal them." Those matters which the constitution specifically
confides to the executive "the legislature cannot directly or indirectly take from his control."
(Cooley's Constitutional Limitations, 7th ed., pp. 126-131, 157-162.) President Wilson in his
authoritative work, "The State", page 487, emphasizes by italics that legislatures "are law
makingbodies acting within the gifts of charters, and are by these charters in most cases very
strictly circumscribed in their action." If this is true, the converse that legislative power is not
executive or judicial or governmental power needs no demonstration. The Legislature
essentially executive or judicial. The Legislature cannot make a law and them take part in its
execution or construction. So the Philippine Legislature is not a partaker in either executive or
judicial power, except as thePhilippine Senate participates in the executive power through the
Governor-General, and except as the Philippine Senate participates in the executive power
through having the right to confirm or reject nominations made by the Governor-General, and
except as the Legislature participates in the judicial power through being made the sole judge
of the elections, returns, and qualifications of its elective members and through having the
right to try its own members for disorderly behavior. The Philippine, Legislature may
nevertheless exercise such auxiliary powers as are necessary and appropriate to its
indenpdence and to make its express powers effective. (McGrain vs. Daugherty [1927], 273 U.
S., 135; 71 Law. ed., 580.)

When one enters on a study of the abstract question, Where does the power to appoint to
public office reside?, one is nearly buried in a mass of conflicting authority. Yet we have been
at pains to review all of the cases cited by counsel and others which have not been cited.
Shaking ourselves loose from the encumbering details of the decisions, we discern through
them a few elemental truths which distiguish certain cases from others and which point the
way for us in the Philippines.

The first principle which is noticed is that the particular wording of the constitution involved,
and its correct interpretation predetermines the result. Does the constitutions deny the
legislative body the right of exercising the appointing power. The legislature may not do so.
(State vs. Kennon [1857], 7 O. St., 547; Clark vs. Stanley[1872], 66 N. C., 28.) Does the
constitution confer upon the government the power to prescribe the manner of appointment.
The authorities are in conflict as to whether the legislature the power to prescribe the manner
of appointment. The authourities are in conflict as to whether the legislature may itself make
the appointment. Does the constitution merely contain the usual clause distributing the
powers of government and no clause regulating appointments. The weight of judicial opinion
seems to be that the power of appointing to office is not exclusively an executive function and
that the legislature may not only create offices but may also fill them itself, but with a vigorous
opposition in most respectable quarters. (Contrast Pratt vs. Breckinridge [1901], 112 Ky., 1,
and Statevs.Washburn [1901], 167 Mo., 680, with People vs. Freeman [1889], 80 Cal., 233,
and Richardson vs. Young [1909], 122 Tenn., 471.)

The second thought running through the decisions is that in the state governments, the
selection of persons to perform the functions of government is primarily a prerogative of the
people. The general powerto appoint officers is not inherent in any branch of the government.
The people may exercise their political rights directly or by delegation. Should the people
grant the exclusive right of appointment to the governor, he possesses that right; but if they
should otherwise dispose of it, it must be performed as the sovereign has indicated. Inasmuch,
however, as the legislative body is the repository of plenary power, except as otherwise
restricted, and the chief executive of the State is not, legislative bodies usually possess wide
latitude in the premises. But this situation does not obtain in the Philippines where the people
are not sovereign, and where constitutional rights do not flow from them but are granted by
delegation from Congress.

It may finally be inferred from the books that the appointment of public officials is generally
looked upon as properly an executive function. The power of appointment can hardly be
considered a legislative power. Appointments may be made by the Legislature of the courts,
but when so made be taken as an incident to the discharge of functions properly within their
respective spheres. (State vs. Brill [1907], 100 Minn., 499; Stockmanvs. Leddy [1912], 55
Colo., 24; Spartanburg County vs. Miller [1924], 132 S. E., 673; Mechem on Public Officers,
secs. 103-108; Mechem, The power of Appoint to Office; Its Location and Limits, 1 Mich. Law
Rev. [1903], 531.)

From the viewpoint of one outside looking in, it would seem that the State legislatures have all
too often been permitted to emasculate the powers properly belonging to the executive
deparment, and that the governor of the State has been placed with the responsibility of
administering the government without the means of doing so. The operations of the executive
department have been fundamentally variedby the legislative department. The legislature has
absorbed strength, the executive has lost it. This tendency has rather been tolerated than
acquiesced in. The executive should be clothed with sufficient power to administer efficiently
the affairs of state. He should have complete control of the instrumentalities through whom his
responsibility is discharged. It is still true, as said by Hamilton, that "A feeble executive implies
a geeble execution of the government. A feeble execution is but another phrase for a bad
execution; and a government ill executed, whatever it may be intheory, must be in practice a
bad government." The mistakes of State governments need not be repeated here..

The history of the power of appointment and the stand taken by the judiciary on the question
in the State of Kentucky is of more than ordinary interest. Kentucky was permitted to become
an independent State by Virginia. The clause in the Kentucky constitution separating and
guarding the powers of government came from the pen of the author of the Declaration of
Independence, Thomas Jefferson. He it was who, in a letter to Samuel Kercheval, dated July
16, 1816, said: "Nomination to office iss an executive function. To give it to thelegislature, as
we do is Virginia, is a violation of the principle of the separation of powers. It swerves the
members from correctness by the temptation to intrigue for office for themselves, and to a
corrupt barter for votes, and destroys responsibility by dividing it among a multitude." Possibly
inspired to such action by the authorship of the portion of the State constitution which was
under consideration, in the early days of the Supreme Court of Kentucky, Mr. Chief Justice
Robertson in the case of Taylor vs. Commonwealth ([1830], 3 J. J.Marshall, 4010) announced
that "Appointmets to office are intrinsically executive," but that it might be performed by a
judicial officer when the duties of the office pertains strictly to the court. This opinion was
shaken in the case of Sinking Fund Commissioners vs. George([1898], 104 Ky., 260) only to
be afterwards reaffirmed in Pratt vs. Breckinridge ([1901], 112 Ky., 1), and in Sibert vs.
Garrett ([1922], 246 S. W., 455). in the decision in the latter case, one of the most recent on
the subject, the Supreme Court of Kentucky after reviewing the authorities refused to be
frightened by the bugaboo that numerically a greater number of courts take a contrary view. It
said: "We are convinced that they by doing so are inviting destruction of the constitutional
barriers separating the departments of government, and that our interpretation is much the
sounder one and is essential to the future preservation of our constitutional form of
government as originally intended by the forefathers who conceived it. . . . Such power (of
appointment) on the part of the Legislature, if a full exercise of it should be persisted in, would,
enable it to gradually absorb to itself the patronage and control of the greater part of the
functioning agencies of the state and county governments, and, thus endowed, it would be
little short of a legislative oligarhy."

It is of importance, therefore, not to be confused by Statedecisions, and invariably to return to

the exact provisions of the Philippine Organic Law which should be searched out and
effectuated.

The right to appoint to office has been confided, with certain well defined exceptions, by the
Government of the United States to the executive branch of the government which it has set
up in the Philippines. Let the Organic Law speak upon this proposition.

The original government inaugurated in the Philippines after American occupation was
military in nature, and exercised all the powers of government, including, of course, the right
to select officers. The original civil authority with administrative functions establishedhere was
the second Philippine Commission. President Mckinley, in his Instructions to the Commisions
of April 7, 1900, ever since considered as the initial step taken to introduce a constitutional
government, provided that until further action should be taken by congress or otherwise, "The
Commission will also have power . . . . to appoint to office such officers under the judicial,
educational, and civil- service systems, and in the municipal and departmental goernments,
as shall be provided for." When the first Civil Governor was appointed on June 21, 1901, the
President again took account of the power of appointment in the following language: The
power to appoint civil officers, hererofore Governor, will be exercised by the Civil Governor
with the advice and consent of the commission." The Congress when it came to make
legislative provision for the administration of the affairs of civil government in the Philippine
Islands, in the Act of Congress of July 1, 1902, the Philippine Bill, "approved, ratified and
confirmed," the action of the President, and in creating the office of Civil Governor and
authorizing said Civil Governor to exercise powers of government to the extent and in the
manner set forth in the exectutive order date June 21, 1901. (Philippine Bill, sec. 1.) Congress
in the same law provided that the Islands "shall continue to be governed as thereby and
herein provided." (See opinion of Attorney-General Araneta on the power of the
Governor-General to appoint and remove civil officers, 3 Op. Atty.-Gen., 563.)

Thus stood the right to appoint to office for fourteen years.

The Organic Act of August 29, 1916, included what follows on the subject of appointments.
The governor-General "shall, unless otherwise herein provided, appoint, by and with the
consent of the Philippine Senate, such officers as may now be appointed by the
Governor-General,or such as he is authorized by law to appoint." (Organic Act, sec. 21.) The
exception to the general grant is that the Philippine Legislature "shall provide for the
appointment and removal of the heads of the executive departments by the
Governor-General." (Organic Act, sec. 22.) Each House of the Philippine Legislature may also
elect a presiding officer, a clerk, a sergeant at arms, and such other officers and assistants as
may be required. (Organic Act, sec. 18.) The Philippine Legislature is authorized to choose
two Residentcommissioners to the United States. (Organic Act, sec. 20.) The prohibition on
the local Legislature, which has been thought of as referring to the Resident Commissioners,
is that "No Senator or Representative shall, during the time for which he may have been
elected, be eligible to any office the election to which is vested in the Legislature, nor shall be
appointed to any office of trust or profit which shall have been created or the emoluments of
which shall have been increased during such term." (Organic Act, sec. 18.)

The Administrative Code provides the following: "In addition to his general supervisory
authority, the Governor-General shall have such specific powers and duties as are expressly
conferred or imposed onhim by law and also, in particular, the powers and duties set forth,"
including th special powers and duties "(a) To nominate and appointofficials, conformably to
law, to positions in the service of the Government of the Philippine Islands. (b) To remove
officials from office conformably to law and to declare vacant the offices held by such
removed officials. For disloyalty to the Government of theUnited States, the
Governor-General may at any time remove a personfrom any position of trust or authority
under the Government of the Philippine Islands." (Sec. 64 [a], [b].) The Administrative Code
lists the officers appointable by the Governor-General. (Sec. 66.)

It will be noticed that the Governor-General, in addition to being empowered to appoint the
officers authorized by the Organic Act and officers who thereafter he might be authorized to
appoint, was to continue to possess the power to appoint such officers as could be appointed
him when the Organic Act wa approved. The careful phraseology of the law and the
connection provided by the word "now" with prior Organic laws is noteworthy. It would not be
at all illogical to apply the same rule to the Governor-General in his relations with the
Legislature which the judiciary uniformly applies to the courts in their relations with the
Legislature, which is, that the Legislature may add to, byt may not diminish, the jurisdiction of
the courts The Legislature may add to, but may not diminish, thepower of the
Governor-General. (Organic Act, sec. 26; Barrameda vs. Moir [1913], 25 Phil., 44; In
re Guarina, supra; U. S. vs. Limsiongco, supra.)

It will also not escape attention that the only reference made to appointments by the
Legislature relates to the selection of Secretaries of Departments, of officers and employees
for the Legislature, and of Resident Commissioners, from which it would naturally be inferred
that no other officers and employees may be chosen by it. The exceptions made in favor of
the Legislature strengthen rather than weaken the grant to the executive. The specific
mention of the authority of the Legislature to name certainofficers is indicative of a purpose to
limit the legislative authority in the matter of selecting officers. The expression of one things
not expressed. Had it been intended to give to the Philippine Legislature the power to name
individuals to fill the offices which it has created, the grant would have been included among
the legislative powers and not among the executive powers. The administrative controlof the
Government of the Philippine Islands by the Governor-Generalto whom is confided the
responsibility of executing the laws excludes the idea of legislative control of administration.

Possibly, the situation may better be visualized by approching the question by a process of
elimination. Is the power of appointment judicial? No one so contends. Is the power of
appointment legislative? Not so if the intention of the Organic Law be carried out and if the
Legislature be confined to its law-making function. Is the power of appointment executive? It
is.

The exact question of where the power of appointment to office is lodged has never
heretofore arisen in this jurisdiction. But a decision of this court and a controlling decision of
the United States Supreme Court are in point.

In Concepcion vs. Parades, supra, this court had before it a law which attempted to require a
drawing of lots for judicial positionss in derogation of executive power. The case was
exhaustively argued andafter prolonged consideration, the questioned portion of the law was
held invalid as in violation of the provisions of the Organic Act. Following the lead of Kentucky,
it was announced that "Appointment to office is intrinsically an executive actinvolving the
exercise of discretion."

In the case of Myers vs. United States ([1926], 272 U. S., 52; 71 Law. ed., 160), the United
States Supreme Court had presented the question whether, under the Constitution, the
President has the exclusive power of removing executive officers of the United States whom
he has appointed by and with the advice and consent of the Senate. The answer was that he
has. The decision is ephocal. The Chief Justice quoted from Madison the following:

If there is a principle in our Constitution, indeed in any free Constitution more sacred than
another, it is that which separates the legislative, executive and judicial powers. If there is any
point inwhich the separation of the legislative and executive powers ought to be maintained
with great caution, it is that which relates to officers and offices.

'The powers relative to offices are partly legislative and partly executive. The legislature
creates the office, defines the powers, limits its duration and annexes a compensation. This
done, the legislative power ceases. They ought to have nothing to do with designating the
man to fill the office. That I conceive to be of an executive nature. Although it be qualified in
the Constitution, I would not extend or stain that qualification beyond the limits precisely fixed
for it. We ought always to consider the Constitution with an eye to the principles upon which it
was founded. In this point of view, we shall readily conclude that if the legislaturedetermines
the powers, the honors, and emoluments of an office, we should be insecure if they were to
designate the officer also. The nature of things restrains and confines the legislative and
executive authorities in this respect; and hence it is that the Constitution stipulates for the
independence of each branch of the Government.' (1 Annals of Congress, 581, 582. Also see
Madison in The Federalist, Nos. 47, 46.).

The distinguished Chief Justice said:

"* * * The Constitution was so framed as to vest in the Congress all legislative powers therein
granted, to vest in the President the executive power, and to vest in one Supreme Court and
such inferior courts as Congress might establish, the judicial power. From this division on
principle, the reasonable construction of the Constitutionmust be that the branches should be
kept separate in all cases in which they were not expressly blended, and the Constitution
should be expounded to blend them no more than it affirmatively requires. Madison, 1 Annals
of Congress, 497.

xxx xxx xxx

The vesting of the executive power in the President was essentially a grant of the power to
execute the laws. But the President alone and unaided could not execute the laws. He must
execute them by the assistance of subordinates. This view has since been repeatedlyaffirmed
by this court. . . . As he is charged specifically to take care that they be faithfully executed, the
reasonable implication, even in the absence of express words, was that as part of his execute
power he should select those who werre to act for him under his direction in the execution of
the laws. The further implication must be, in the absence of any express limitation respecting
removals, that as his selection of administrative officers is essential to the execution of the
laws by him, so must be his power of removing those for whom he cannot continue to be
responsible. (Fisher Ames, 1 Annals of Congress, 474.) It was urged that the natural meaning
of the term "executive power" granted the President included the appointment and removal of
executive subordinates. If such appointments and removals were not an exercise of the
executive power, what were they? They cetainly were not the exercise of legislative or judicial
power in government as usually understood.

It is quite true that in state and colonial governments at the time of the Constitutional
Convention, power to make appointments and removals had sometimes been lodged in the
legislatures or in the courts, but such a disposition of it was really vesting part of the executive
power in another branch of the Government.

xxx xxx xxx

We come now to a period in the history of the Government when both Houses of Congress
attempted to removes this constitutionalconstruction and to subject the power of removing
executive officers appointed by the President and confirmed by the Senate to the control of
the Senate, indeed finally to the assumed power in Congress to place the removal of such
officers anywhere in the Government.

xxx xxx xxx

The extreme provisions of all this legislation were a full justification for the considerations so
strongly advanced by Mr. Madison and his associates in the First Congress, for insisting
thatthe power of removal of executive officers by the President alone wasessential in the
division of powers between the executive and the legislative bodies. It exhibited in a clear
degree the paralysis to which a partisan Senate and Congress could subject the executive
arm and destroy the principle of executive responsibility, and separation of the powers sought
for by the framers of our Government, if the President fhad no power of removal save by
consent of the Senate. It was an attempt to redistribute the powers and minimized those of the
President.

xxx xxx xxx

For the reasons given, we must therefore hold that the provision of the law of 1876 by which
the unrestricted power of removal of first class postmasters is denied to the President is in
violation of the Constitution and invalid.

Membership in the Committee created by Acts Nos. 2705 and 2822 is an office. No attempt
will be made to accomplish the impossible, which is to formulate an exact judicial definitions of
term "office." The point is that the positions in question constitute an "office," whether within
the meaning of that word as used in the Code of Civil Procedure under the topic "Usurpation
of Office," and in the jurisprudence of Ohio from which these portions of the Code were taken;
whether within the local definitions of "office" found in the Administrative Code and the Penal
Code; or whether within the constitutional definitions approved by the United States Supreme
Court. (Code of Civil Procedure, secs. 197 et seq., 519; Act No. 136, sec. 17;
State vs. Kennon, supra, cited approvingly in Sheboygran co. vs. Parker [1865], 3 Wall., 93;
Administrative Code, sec. 2; Penal Code, arts. 264, 401.) Paraphrasing the United States
Supreme Court in alate decision, there is not lacking the essential elements of a public station,
permanent in character, created by law, whose incidents and duties were prescribed by law.
(Metcalf & Eddy vs. Mitchell [1926], 269 U. S., 514; U. S. vs. Maurice [1823], 2 Brock., 96; U.
S. vs.Hartwel [1867], 6 Wall., 385.) The Legislature did more than add incidentalor occasional
duties to existing executive offices for two of the members of the voting committee are
representatives of thelegislative branch. The Supreme Court of North Carolina has held that
the Act of the General Assembly giving to the President of the Senate and the Speaker of the
House of Representatives the power to appoint proxies and directors in all corporations in
which the State has an interest, creates a public office and fills the same by appointment of
the Legislature. (Clark vs.Stanley [1872], 66 N. C., 28;Howerton vs. Tate [1873], 68 N. C., 498;
Shoemaker vs. U. S. [1892], 147 U. S., 282; Advisory Opinion to Governor [1905], 49 Fla.,
269; Mechem on Public Officers, Ch. I.)

To tell the truth, it is possible that the earnestness of counsel has just led us to decide too
much. Not for a moment should there be dismissed from our minds the unusual and potently
effective proviso of section 22 of the Organic Act, "That all executive functions of the
government must be directly under the Governor-General or within one of the executive
departments under the supervision and control of the Governor-General." At the very least,the
performance of duties appurtenant to membership in the voting committee is an executive
function on the Government, which the Organic Act requires must be subject to the
unhampered control of the Government-General. The administrative domination of a
governmentally organized and controlled corporation is clearly not a duty germane to the
law-makingpower.

The incorporation of the National Coal Company has not served to disconnect the Company
or the stock which the Government owns in it from the Government and executive control.
The Philippine Legislatureis empowered to create and control private corporations.
(Martinez vs. La Asociacion de Seoras Damas del Santo Asilo de Ponce [1909], 213 U. S.,
20.) The National Coal Company is a private corporation.(National Coal Company is a private
corporation. (National Coal Company vs. Collector of Internal Revenue [1924], 46 Phil., 583.)
By becoming a stockholder in the National Coal Company, the Goverment divested itself of its
sovereign character so far as respects the transactions of the corporation. (Bank of the U.
S. vs. Planters' Bank of Georgia [1824], 9 Wheat., 904.) Unlike the Government, the
corporation may be sued without its consent, and is subject to taxation. Yet the National Coal
Company remains an agency or instrumentality of government. Mr. Chief Justice Marshall in
speaking of the Bank of the United States said, "It was not created for its own sake, or for
private purposes. It has never been supposed that Congress could create such a
corporation." (Osborn vs. Bank of the U. S. [1824], 9 Wheat., 738; National
Bank vs. Commonwealth [1869], 9 Wall., 353; Railroad Co. vs. Peniston [1873], 18 Wall., 5;
Chesapeake & Delaware Canal Co. vs. U. S. [1918], 250 U. S., 123.) Of the National Coal
Company, it has been said by Mr. Justice Johnson as the organ of the court in National Coal
Company vs. Collector of Interanl Revenue,supra, that "The Government of the Philippine
Islands is made the majority stockholder, evidently in order to insure proper governmental
supervision and control, and thus to place the Government in a position to render all possible
encouragement, assistance and help in the prosecution and furtherance of the company's
business.' The analogy is closer in the companionNational Bank case, No. 27225.

It further is inconvertible that the Government, like any other stockholder, is justified in
intervening in the transactions in the corporation, and in protecting its property rights in the
corporation. Public funds were appropriated to create the National Coal Company. Those
funds were used to purchase stock. The voting of the government stock is the prerogative of
the stockholder, not the prerogative of the corporation. It is transaction in, but not of, the
corporation. The stock is property. The Government, the owner of the majority stock in the
company, naturally dominates the management of its property. The Government may enforce
its policies and secure relief in and through the corporation and as stockholder.

The situation will be better understood if it be recalled that, in addition to the National Coal
company (Acts Nos. 2705 and 2822), the Philippine Legislature has created the Philippine
National Bank (Acts Nos. 2612, 2747, 2938, and 3174), the National Petroleum Company
(Act No. 2814), the National Development Company (Act No. 2849), the National Cement
Company (Act No. 2855), and the NationalIron Company (Act No. 2862). The aggregate
authorized capital stock of these companies is P54,500,000. The Legislature has in each of
these instances directed that a majority of the shares of stock shall be purchased for the
Government, and has appropriated money for this purpose. There have likewise been
authorized corporations for the promotion of the merchant marine (Act No. 2754). The stock of
the Manila Railroad Company has been purchased for the Government. (Acts Nos. 2574,
2752, and 2923.) All these are conspicuous instances of a paternally inclined government
investing large sums in business enterprises which after acquisition or organization have
vitally concerned the Government. In all of the companies mentioned, the stock is to be voted
by a committee or board of control, consisting of the Governor-General, the President of the
Senate, and the Speaker of the House of Representatives. The power of the majority
stckholders to vote the government stock in the corporation carries with it the right, under our
Corporation Law, to elect all the directors, to remove any or all of them, and to dissolve the
corporation by voluntary proceedings. (Corporation Law, secs. 31, 34, 62.) In the case of the
Philippine National Bank, the law explicitly enumerates variousfunctions of the bank which
may not be performed without the express approval of the Board of Control. (Act No. 2938.)

Very important property rights are involved in the transactions in the governmental directed
corporations. Just as surely as the duty of caring for government property is neither judicial
nor legislative in character is it as surely executive. Yet a majority of the voting committee or
board of control is made up of the presiding officers of the two houses of the Legislature and
they are in a position to dictate action to the directors and subordinate personel of these
corporations.

Based on all the foregoing considerations, we deduce that the power of appointment in the
Philippines appertains, with minor exceptions, to the executive department; that membership
in the voting committee in question is an office or executive function; that the National Coal
Company and similar corporations are instrumentalities of the Government; that the duty to
look after government agencies and government property belongs to the executive
department; that the placing of members of the Philippine Legislature on the voting committee
constitutes an invasion by the Legislative Department of the provileges of the Executive
Department. Under a system of government of delegated powers, under which delagation
legislative power vests in the Philippine Legislature and executive power vests in the
Governor-General, and under which Governor-General and a specified power of appointment
resides in the Philippine Legislature, the latter cannot directly or indirectly perform functions of
an executive nature through the designation of its presiding officers as majority membersof a
body which has executive functions. That is the meaning we gather from the tri-partite theory
of the division of powers. That is the purport of the provisions of the Organic Law. That has
been the decided trend of persuasive judicial opinion.

The intimation contained in the conclusions just reached does not necessarily mean that the
plaintiff will be privileged to substitute the directors designated by the Governor-General for
those designated by the two presiding officers in the Legislature. The burden has heretofore
been on the defenfants. From this point, it will be on the plaintiff. It is well established in quo
warranto proceedingsthat the failure of the defendant to prove his title does not established
that of plaintiff. (People vs. Thacher [1874], 10 N. Y., 525.)

The answer to the problem comes from two directions. The acting Attorney-General of the
United States finds the solutions in the supreme executive power entrusted to the
Governor-General, while cousel for the plaintiff advance the rule of statutory construction
pertaining to partial invalidity. We are frank to say that we experience difficulty in following the
lead of the law officer of the Government of the United States. The Governor-General since
the approval of the last Organic Act has had no prerogative powers. His powers are so clearly
and distincly stated that there ought to be no doubt as to what they are. Like the Legislature
and the judiciary,like the most inconspicuous employee, the Governor-General must find
warrant for his every act in the law. At this stage of political development in the Philippines, no
vague residuum of power should be left to lurk in any of the provsions of the Organic Law.

Counsel for the plaintiff rely on a decision of this court (U. S. vs. Rodriguez [1918], 38 Phil.,
759) as best expressing the local rule regarding statutes void in part. Counsel for the
defendants cite an earlier case (Barrameda vs. Moir [1913], 25 Phil., 44). As the principle
announced in the last cited case is the more comprehensive and is much fairer to the
defendants, we give it preference. It was there announce:

Where part of a statute is void, as repugnant to the Organic Law, while another part is valid,
the valid portion, if separable from the invalid, may stand and be enfored. But in order to do
this, the valid portion must be so far independent of the invalid portion that it is fair to presume
that the Legislature would have enacted it by itself if they had supposed that they could not
constitutionally enact the other. Enough must remain to make a complete, intelligible, and
valid statute, which carries out the legislative intent. The void provisions must be eliminated
without causing results affecting the main purpose of the Act in a manner contrary to the
intention of the Legislature. The language used in the invalid part of a statute can have no
legal force or efficacy for any purpose whatever, and what remains must express the
legislative will independently of the void part since the court has no power to legislate.

Omitting reference to the President of the Senate and the Speaker of the House of
Representative in section 4 of Act No. 2705, as amended by section 2 of Act No. 2822, it
would then read: "The voting powerof all such stock owned by the Government of the
Philippine Islands shall be vested exclusively in a committee consisting of the Governor-
General." Would the court be justified in so enforcing the law without itself intruding on the
legislative field?

The Philippine Legislature, as we have seen is authourized to create corporations and offices.
The Legislature has lawfully provided for a National Coal Company, but has unlawfully
provided for two of its members to sit in the committee. Would this court be doing violence to
the legislative will if the votig power be continued solely in the hands of the Governor-General
until different action is taken by the Legislature? We conclude that we would not, for the
reason that the primordial purpose of the Legislature was "to promote the business of
developing coal deposits . . . and of mining . . . and selling the coal contained in said
deposits." (Act No. 2705, sec 2; Act No.2822, sec.1.) The incidental purpose of the
Legislature was to provide a method to vote the stock owned by the Government in the
National Coal comapny. In the words of the United States Supreme Court, "The striking out is
not necessarily by erasing words, but it may be by disregarding the unconstitutional provision
and reading the statute as if that provision was not there." (Railroad companies vs. Schutte
[1880], 103 U. S. 118; State vs.Westerfield [1897], 23 Nev., 468; State vs. Washburn, supra;
State vs. Wright [1913], 251 Mo., 325; State vs.Clausen [1919], 107 Wash.,667; 1 Lewis
Sutherland, Statutory construction, Second ed. Ch. IX.)

The decision of the United States Supreme Court in Clayton vs. People ([1890], 132 U. S.,
632) is particularly applicable on account of relating to the validity of an Act passed by a
territorial legislature, the question of partial invalidity, and the contention likewise here made,
that since the law in question had been on the statute books for a number of years, it must be
considered as having been impliedly ratified by the Congress. An Act of the Legislature of
Utah of 1878 had declared that the auditor and the treasurer shall be elected by the voters of
the territory. In a decision handed down in 1886, the Supreme Court of the territory of Utah
held the act void because in conflict with the organic act creating the territory, which provided
that the governor, with the consent of the legislative council, shall appoint such officers. It
further held that a territorial statute invalid when enacted is not validated by the failureof the
congress expressly to disapprove it. (People vs. Clayton [1886], 4 Utah, 421.) The United
States Supreme Court on appeal affirmed the judgment. It said:

It can hardly be admitted as a general proposition that under the power of Congress reserved
in the Organic Acts of the territories to annul the Acts of their legislature the absence of any
action by Congress is to be construed to be a recognition of the power of the Legislature to
pass laws in conflict with the Act of Congress underwhich they were created. . . . We do not
think that the acquiescenceof the people, or of the Legislature of Utah, or of any of its officers,
in the mode for appointing the auditor of public accounts, is sufficient to do away with the clear
requirements of the organic Act on that subject. It is also, we think, very clear that only that
part of the Statute of Utah which is contrary to the Organic act, namely, that relating to the
mode of appointment of the officer, is invalid; that so much of it as creates the office of auditor
of public accounts and treasurer of the Territory is valid; and that it can successfully and
appropriately be carried into effect by an appointment made by the governor and the Council
of the Territory, as required in the Act of Congress.

On the assumption, however, that the entire provision authorizing the voting committee be
considered as wiped out, yet we think it would still devolve on the Governor-General to protect
the public interests and public property. He is made responsible for the execution of the laws,
and he would be unfaithful to that trust if, through inaction, instrumentalities of government
should fail to function and government property should be permitted to be dissipated.

Counsel for the dependants have injected the argument into the discussion that, as the
President of the Senate and the Speaker of the House of Representatives are at least de
facto officers, their right to act as members of the voting committee cannot be collaterally
attacked, and that the defendants in this suit are the de jure members of the board of directors
of National Coal Company. Contentions such as there are out of harmony with the avowed
purpose to avoid technical obstruction, and to secure a definite expression of opinion on the
main issue. However, it remains to be said that this is a direct proceeding to test the right of
the defendants to the offices to which they consider themselves entitled. The inquiry then may
go, as is proper in quo warranto proceedings, to the extent of determining the validity of the
act authorizing the offices. The fallacy of the argument relating to the de facto doctrine is that,
although there may be a de facto officer in a de jure office, there cannot be a de factoofficer in
a de fact office. There is no such thing as de facto office under an unconstitutional law.
(Norton vs.Shelby County [1886], 188 U. S., 425.)

Before terminating, a few general observations may be appropriate.The case has been
carefully prepared and elaborately argued. All parties appear to desire to have the matter at
issue definitely determined. We have endeavored to accomodate them. But in such a bitterly
fought contest, the ingenuity of counsel presses collateralpoints upon us which the court need
not resolve. We thus find it unnecessary to express any opinion on the propriety or legality of
Executive Order No. 37, on that portion of section 18 of the Organic Act which disqualifies
Senators or Representatives for election or appointment to office and no other subsidiary
matters. Need it be added that the court is solely concerned with arriving at a correct decision
on a purely legal question.

Every other consideration to one side, this remains certainThe congress of the United
States clearly intended that the Governor- General's power should be commensurate with his
responsibility. The Congress never intended that the Governor-General should be saddled
with the responsibility of administering the government and of executing the laws but shorn of
the power to do so. The interests of the Philippines will be best served by strict adherence to
the basic principles of constitutional government.

We have no hesitancy in concluding that so much of section 4 of Act No. 2705, as amended
by section 2 of Act No. 2822, as purports to vest the voting power of the government-owned
stock in the National Coal Company in the President of the Senate and the Speaker of the
House of Representatives, is unconstitutional and void. It results, therefore, in the demurrer
being overruled, and as it would be impractible for the defendants to answer, judgment shall
be rendered ousting and excluding them from the offices of directors of the National
Coalcompany. So ordered, without costs.

Street, Ostrand, Johns and Romualdez, JJ., concur.

Separate Opinions

JOHNSON, J., concurring:

Under the admitted facts the writ of quo warranto prayed for should be granted. Milton E.
Epringer, Dalmacio Costas, and Anselmo Hilario are unlawfully and illegally holding and
exercising the position of members of the Board of Directors of the National Coal Company
andshould be ousted and altogether excluded therefrom; that Romarico Agcaoili, H. L. Heath,
and Salvador Lagdameo have been duly and legally elected as members of the Board of
Directors of the National Coal Company, and judgment is rendered that they be inducted into
said position to take charge thereof and to perform the duties incumbent upon them as
members of said board of directors.

The principal questions involved in this action are:

(a) May the Legislative Deparment of the Government of the Philippine Islands adopt a law
and provide that some of its members shall take part in its execution?

(b) Was the Governor-General of the Philippine Islands authorized, under the law, to
promulgate Executive Order No. 37? and,

(c) Were the respondents legally elected as members of the Board of Directors of the National
Coal Company?
Inasmuch as these questions involve respective powers of two great departments of the
Government, they should be seriously considered by this court and not to be lightly resolved
on.

These questions were presented to the Supreme Court of the Philippine Islands for solution in
an original action, praying for the issuance of the extraordinary legal writ of quo warranto. In
relation with the questions involved, the specific and definite purpose of the action is (a) to
inquire into the right of the respondents, Milton E. Spinger, Dalmacio Costas, and Anselmo
Hilario to act as members of the Board of Directors of the National Coal Company, a private
corporationcreated by special charter by an Act of the Philippine Legislature; and (b) to have
inducted into office, in their place and stead, said Romarico Agcaoili, H. L. Heath, and
Salvador Lagdameo.

To the petition presented by the Government of the Philippine Islands (ex rel. Romarico
Agcaoili, H. L. Heath and Salvador Lagdameo) the respondents demurred. The facts are
therefore admitted. A question of law only is presented for solution.

THE FACTS UPON WHICH THE ACTION IS BASED

The facts upon which the petition is based are few, clear, and well defined. There is no
dispute upon the facts. They are briefly: That the National Coal Company is a private
corporation created by Act No. 2705 (vol. 2, Public Laws, p. 216, March 10, 1917) as
amended by Act No. 2822 (vol. 14, Public Laws, p. 202, March 5, 1919). Act No. 2705, as
amended by Act No. 2822, constitutes the charter of said company. Said Acts are not public
laws. They are private Acts of the Philippine Legislature. They provide that said company
shall be subject to the provisions of the Corporation Law (Act No. 1459) in so far as they are
not inconsistent with the provisions of said charter, and shall have the general powers
mentioned in said Act (Act No. 1459) and such other powers as may be necessary to enable it
to prosecute the business of developing coal deposits in the Philippines Islands, and mining,
extracting, transporting, and selling the coal contained in said deposits. Said charter provided
that the capital of said company shall be P3,000,000, divided into 30,000 shares of stock with
a par value of P100 per share.

Said charter further provided that the Governor-General on behalf of the Government of the
Philippine Islands, shall subscribe for 51 per centum of said capital stock, and that the "voting
power of all such stock owned by the Government of the Philippine Islands shall be vested
exclusively in a committee consisting of the Governor-General, the President of the Senate,
and the Speaker of the House of Representatives." At the time of the adoption of said charter
the Philippine Legislature appropriated the sum of P1,530,000 for investment in the stock of
said company to be acquired by the Government of the Philippine Islands.

The National Coal Company was organized in accordance with the provisions of its charter. A
Board of Directors was elected from time to time. Its business was carried on by said Board of
Directors. Finally a legal question arose concerning the right of the President of the Senate
and the Speaker of the House of Representatives to act with the Governor-General in voting
the stock of said company. That question was referred to the Judge Advocate General of the
United States Army as well as to the Attorney-General of the United States. Upon full
consideration of the question, the Judge Advocate General and the Attorney-General reached
the conclusion that the President of the Senate and the Speaker of the House of
Representatives were without authority in law to take part in the voting of the stock owned by
the Government, for the reason that the particular provision of the charter granting or creating
said power as illegal and void, and that the participation of the President of the Senate and
the Speaker of the House of Representatives in voting said stock was an illegal encroachment
upon the powers of the Executive Department of the Government. Upon receiving said
opinions, the Government-General evidently for the purpose of avoiding criticism that he was
permitting an illegal and void law to be enforced and, if possible, impeachment proceedings
for a failure or refusal on his part to comply with the law of the land, issued an executive order,
known as Executive Order No. 37. Executive Order No. 37 provides:

Whereas it is held in an opinion of the Judge Advocate General of the United States Army,
confirmed by an opinion of the Attorney-General of the United States, received at the Office of
the Executive, November seventh, nineteen hundred and twenty-six, that the provisions of the
statutes passed by the Philippine Legislature creating a 'Board of Control' or 'Committee' and
enumerating the duties and powers thereof, with respect to certain corporations in which the
Insular Government is the owner of stock, are nullities; that the remaining portions of said
statutes are valid; that the duties imposed by said statutes upon said Board or Committee are
executive in their nature, and subject to the provisions of the Organic Act relating to the
executive functions; that said executive duties and powers may be performed as in other
cases not specifically provided for by law.

Now, therefore, acting under authority of said opinions, the duties and powers heretofore
exercised by said 'Board of Control' or Committee' shall, from and after this date, be exercised
solely by the Governor-General pursuant to the executive power vested in him by the Organic
Act."

Notice of said Executive Order was duly and timely given by the Governor-General to the
President of the Senate and the Speaker of the House of Representatives. The
Governor-General further notified the President and Speaker that "he would thereafter
exercise exclusively the duties and powers" with respect to the voting of the stock held by the
Government of the Philippine Islands in the National Coal Company.

At the time of the issuance of said Executive Order No. 37 or thereabouts the Government of
the Philippine Islands was the registered owner of about 29,975 shares of the total of 30,000
shares of said company. The President of the Senate and the Speaker of the House of
Representatives protested against the alleged assumed authority on the part of the
Governor-General to vote said government stock and insisted upon their right to participate in
the voting of the same.

Later, and without going into great detail, a meeting of the stockholders was called for the
purpose of electing members of the Board of Directors of said company. In accordance with
the preannounced intention, the President of the Senate and the Speaker of the House of
Representatives attended the meeting of the stockholders of the company and then and there
asserted their right, as a majority of the "Voting Committee," to vote the stock of the
Government. Against the objections and protest of the Governor-General they were permitted
by the Chairman of the meeting to vote all of the stock held by the Government of the
Philippine Islands. They deposited a ballot purporting to be signed by them on behalf of the
said "Voting Committee" for the election as Directors of Alberto Barretto, Frank B. Ingersoll,
Milton E. Springer, Dalmacio Costas, and Anselmo Hilario. Notwithstanding the objection and
protest of the Governor-General to the acceptance of said ballot, the Chairman permitted it to
be deposited in favor of the persons for whom it was cast. At the same meeting of the
stockholders and at the same time the Governor-General, insisting upon his sole right to vote
the stock owned by the Government of the Philippine Islands, cast his ballot representing all
of the stock of the Government, in favor of Alberto Barretto, Frank B. Ingersoll, Romarico
Agcaoili, H. L. Heath, and Salvador Lagdameo, which ballot was rejected by the Chairman
and the same was not allowed to be deposited.

Against the ruling of the Chairman, permitting the ballot of the President of the Senate and the
Speaker of the House of Representatives to be deposited on behalf of the said "Voting
Committee" a protest of the Governor-General was duly and timely presented.
Notwithstanding said protest on the part of the Governor-General, that the President of the
Senate and the Speaker of the House of Representatives had no authority to vote the stock of
the Government nor to participate in the voting of the same, the Chairman declared that
Alberto Barretto, Frank B. Ingersoll, Milton E. Springer, Dalmacio Costas, and Anselmo Hilario
had each received a majority of the votes cast and that said persons had been duly elected as
members of the Board of Directors of the National Coal Company.

It will be noted that both the Governor-General, and the President of the Senate and Speaker
of the House of Representatives voted for the election of Alberto Barretto, and Frank B.
Ingersoll. There is no objection in this record to the right of said persons to act as members of
the Board of Directors. The contention of the Government is, that Romarico Agcaoili, H. L.
Heath and Salvador Lagdameo had been duly and legally elected as members of the Board of
Directors by the vote of the Governor-General, and that Milton E. Springer, Dalmacio Costas,
and Anselmo Hilario had not been duly and legally elected as members of the Board of
Directors by the vote of the President of the Senate and the Speaker of the House of
Representatives, and that they should be ousted and altogether excluded from their office.

Considering the foregoing facts we have the question squarely presented, whether the
persons elected by the Governor-General in voting the stock owned by the Government had
been duly and legally elected directors of said company, or whether the persons elected by
the President of the Senate and the Speaker of the House of Representatives were legally
elected as such Directors.

It can scarcely be contended that the President of the Senate and the Speaker of the House
of Representatives, when the Governor-General is present at a meeting of the stockholders of
said company, have a right to vote all of the stock of said company, to the entire exclusion of
the Governor-General. There is nothing in the law which indicates the manner in which the
stock owned by the Government of the Philippine Islands may be voted when a difference of
opinion exists among the members of the "Voting Committee" as to how the same shall be
voted.

Without discussing the method of voting the stock when there is a difference of opinion in the
"Voting Committee" as to how it shall be voted, we pass to the question, whether or not the
President of the Senate and the Speaker of the House of Representatives, as members of the
Legislative Department of the Government, have any right whatever to participate in the
voting of the stock belonging to the Government of the Philippine Islands.

THE RIGHT OF THE LEGISLATIVE DEPARTMENT OF THE GOVERNMENT TO EXECUTE

OR TO ASSIST IN THE EXECUTION OF ITS LAWS.

The Legislative Department of the Government adopted the law creating the charter of the
National Coal Company. The Legislative Department of the Government provided a method,
in said charter, by which it, through the President of the Senate and the Speaker of the House
of Representatives, should assist in the execution of said law.
It has been stated so frequently by eminent statesmen and jurists, that it scarcely needs the
citation of authorities to support the doctrine, that wherever the American flag flies as an
emblem of Government, the powers of that Government are divided into three distinct and
separate departments Executive, Legislative and Judicial each acting in its own field,
under its own authority and general powers of the government. While the line of demarcation,
by division, is easily discerned, it is at times difficult to follow in actual cases. There is a
constant overlapping of the different departments of the government which cannot be avoided,
and yet such overlapping generally results in the greater stability and permanency of the
government. It is also a statement, based upon political science, that scarcely needs
repetition, that one department overreaches its powers whenever it steps across the line of
demarcation and attempts to function within the field of another department of government
under the American flag. Under the form of government established in the Philippine Islands,
one department of the government has no power or authority to inquire into the acts of
another, which acts are performed within the discretion of the other department. It is the
general duty of the legislative branch of the government to make such laws and regulations as
will effectually conserve the peace and good order and protect the lives and the property of
the citizens of the state. It is the duty of the governor-General to take such steps as he deems
wise and necessary for the purpose of enforcing such laws. Every delay and hindrance and
obstacle which prevents a strict enforcement of laws necessarily tends to jeopardize public
interest and the safety of the whole people. (Barcelonvs. Baker and Thompson, 5 Phil., 87.)

The different departments of the government are coordinate, coequal and each functions
independently, uncontrolled and uncontrollable by the other. To that statement, however,
there exist exceptions. For example, the executive department of the government may annul
and set aside acts of the legislative department of the government under its power of veto. So
may the legislative department of the government annul and set aside actions of the executive
department of the government by repealing or amending laws. So likewise the judicial
department of the government may annul and set aside acts of the legislative department of
the government when such acts are contrary to the fundamental laws of the state or beyond
the powers of the legislative department. But in every case, where one department, as above
indicated, to any extent attempts to control the effects of acts of the other department or
departments, it is acting under its own power and within its own department.

The Constitution of the United States as well as the Constitution of each of the states of the
United provide that the government shall be divided into three departments: executive,
legislative, and judicial. George Washington, who was the President of the Constitutional
Convention which adopted the United States Constitution, in a letter written to his friend
Lafayette in 1788, referring to the complete separation of the powers of the government, said:
"These powers are so distributed among the legislative, executive, and judicial branches, in
which the powers of the government are arranged that it can never be in danger of denigrating
into a monarchy, an oligarchy, an aristocracy, or any other despotic form of government as
long as there shall remain any virtue in the body of the people."

Mr. Thomas Jefferson, who has been quoted on questions relating to the meaning, force and
application of the provisions of the Constitution of the United States perhaps more than any
other one person, said: "The great principle established by the Constitution of the United
States which was never before fully established, was the separation of the delegated power
into the hands of the executive, the legislative department, and the judiciary. This is our
system of check and balances which makes ours a 'government of laws and not of men.'" On
another occasion Mr. Thomas Jefferson said, in discussing the necessity of limiting the power
of government: "When it comes to a question of power trust no man, bind him down from
mischief, by the strong chains of the Constitution."
By the well known distribution of the powers of government among the executive, legislative,
and judicial departments by the constitution, there was provided that marvelous scheme of
check and balances which has been the wonder and admiration of the statesmen, diplomats,
and jurists in every part of the civilized world.

The balance of the powers of government provided for in the constitution as well as in the
charter of the Philippine Government was not the result of chance. The various parts did not
fall into place merely through the vicissitudes of circumstance. They were devised by careful
foresight; each in a measure dependent upon the others and not possessed of so much
independence as to give freedom and courage in the exercise of their functions. Each was to
move within its respective spheres as the bodies of the celestial system march along the
pathways of the heaven. It is a fundamental rule of constitutional law that no department of
government has power to perform nor to assist in performing the functions of another.

The executive department is limited to the execution of valid laws adopted by the legislative
department of the government. The legislative department is limited to the enactment of laws
and to the investigation of facts necessary for wise legislation. The judicial department of the
government is limited to the administration of justice and the interpretation of laws. In case of
differences between the executive and legislative departments as to their respective powers,
it has long since been conceded that the Supreme Court shall act as an umpire.
(Marbury vs.Madison [1803], 1 Cranch [U.S.] 137; Rice vs. Austin, 19 Minn., 74;
Luther vs. Borden, 7 Howard [U.S.], 44; Martinvs. Mott, 12 Wheat. [U. S.], 19.)

No government, past or present, has more carefully and watchfully guarded and protected, by
law, the individual rights of life and property of its citizens than the governments under the
American flag. Each of the three departments of the government has had separate and
distinct functions to perform in this great labor. The history of the United States, covering
nearly a century and a half, discloses the fact that each department has performed its part
well. No one department of the government can or ever has claimed, within its discretionary
power, a greater zeal than the others in its desire to promote the welfare of the individual
citizens, entities or corporations. They are all joined together in their respective spheres,
harmoniously working to maintain good government, peace and order, to the end that the
rights of each citizen be equally protected. No one department can claim that it has a
monopoly of these benign purposes of the government. Each department has an exclusive
field within which it can perform its part within certain legal and discretionary limits. No other
department can claim a right to enter these legal and discretionary limits and assume to act
there. No presumption of an abuse of these legal and discretionary powers by one
department will be considered or entertained by another. Generally such conduct on the part
of one department, instead of tending to conserve the highest interest of the government and
its citizens and the rights of the people, would directly tend to destroy the confidence of the
people in the government and to undermine the very foundations of the government itself.
(Barcelon vs. Baker and Thompson, 5 Phil., 87, 115; Forbes vs. Chuoco Tiaco and Crossfield,
16 Phil., 534.)

The Government of the Philippine Islands, like the Government of the United States, is based
upon the fundamental principle of the separation of the executive, legislative, and judicial
powers. Subject only to the exceptions especially established by the organic act, neither of
the great department of the government may validly exercise any of the powers conferred
upon either of the others. In the case of Abueva vs. Wood (45 Phil., 612) it was said: "The
duties of each department are well defined and limited to certain filed of governmental
operation." Each department exercises functions as independent of each other as the Federal
or state governments of the Union. It was not intended by the framers of the theory of our
government that the duties which had been assigned to the executive should be performed by
the legislative, nor that the duties which had been assigned to each of them should be
performed and directed by the judicial department. (Sinking Fund Cases, 99 U. S., 700, 718;
Clough vs. Curtis, 134 U. S., 361; Abueva vs. Wood, supra.)

No well organized government or business even can be well managed if one department can
enter upon the field of another and attempt to administer or interfere in the administration of
the other. (Abueva vs. Wood, supra; Barcelon vs. Baker and Thompson, 5 Phil., 87; U.
S. vs. Bull, 15 Phil., 7, 27.)

In the case of Kilbourne vs. Thompson (103 U. S., 168) it was said: "It is also essential to the
successful working of the system, that the persons entrusted with power in any one of these
branches shall not be permitted to encroach upon the powers confided to the others, but that
each shall by the law of its creation be limited to the exercise of the powers appropriate to its
own department and no other."

Section 17 of the Administrative Code of 1917 (Act No. 2711) provides: "The executive,
legislative, and judicial powers of the Philippine Government are distributed, respectively,
among the executive, legislative, and judicial branches, severally exercising the functions and
powers conferred on them by law.

Each department of the government has an exclusive field within which it can perform its part
within certain discretionary limits. No other department can claim a right to enter these
discretionary limits and assume to act there. (Barcelon vs. Baker and Thompson, supra; U.
S. vs. Bull, supra; Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil., 534;
Borromeo vs. Mariano, 41 Phil., 322; Severino vs. Governor-General and Provincial Board of
Occidental Negros, 16 Phil., 366; Province of Tarlac vs. Gale, 26 Phil., 338.)

In the case of United States vs. Ang Tang Ho (43 Phil., 1) this court said that the legislature
has no authority to execute or construe the law, the executive has no authority to make or
construe the law. Subject to the constitution only, the power of each branch is supreme within
its own jurisdiction, and it is for the judiciary only to say when an act of the legislature is or is
not constitutional. It is beyond the power of any branch of the Government of the Philippine
Islands to exercise its functions in any other way than that prescribed by the Organic Law or
by local laws which conform to the Organic Law. (Alejandrino vs. Quezon, 46 Phil., 83, 96.)

It is not within the power of the Philippine Legislature to enact laws which either expressly or
impliedly diminish the authority conferred by an Act of Congress on the Chief Executive.
(Concepcion vs. Paredes, 42 Phil., 599.)

From all of the foregoing, the conclusion is inevitable, that if any given act of the Philippine
Legislature does not, by its nature, pertain to the law-making function, but is either executive
or judicial in character, and does not fall within any of the express exceptions established by
the Organic Act, such an act is ultra vires and therefore null and void. (See, for a discussion of
the powers of the executive department of the Government, the opinion by the late Chief
Justice Cayetano S. Arellano in the case of In re Patterson, 1 Phil., 93.)

POWERS OF THE LEGISLATIVE DEPARTMENT OF GOVERNMENTS UNDER THE

AMERICAN FLAG

Some one has said that the powers of the legislative department of the Government, like the
boundaries of the ocean, are unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of each of the departments of the
same are limited and confined within the four walls of the constitution or the charter, and each
department can only exercise such powers as are expressly given and such other powers as
are necessarily implied from the given powers. The constitution is the shore of legislative
authority against which the waves of legislative enactment may dash, but over which they
cannot leap.

Mr. Justice Cooley, one of the greatest expounders of constitutional law, said: "The legislative
power, we understand, to be the authority, under the constitution, to make laws and to alter
and repeal them."

Mr. Biddel, an eminent lawyer, said: "The legislature has no other duty nor power than to
make laws. After a law has been enacted, that department has no further power over the
subject except to amend or repeal it. It can neither adjudge the law nor execute it. All power of
that department is ended."

Mr. James Wilson, who was a member of the convention which adopted the Constitution of
the United States, and later one of the first members of the Supreme Court of the United
States, and one of the very ablest of the members of that great body, in discussing the
question of the powers of the legislative department of the government, said, quoting from an
able English statesman: "England can never be ruined but by a Parliament (legislative
department), which demonstrates the danger of allowing to the legislative department any
other (power) than strictly legislative powers."

Even the Justice of the Supreme Court joined in a letter addressed to President Washington
upon the general subject of the separation of the departments of government, and insisted
upon a scrupulous and undeviated maintenance of the separation of the departments.

Mr. Thomas Jefferson, James Madison, and Alexander Hamilton, who were among the great
expounders of the Constitution, wrote earnestly upon the question of the separation of the
departments of government, and, with many others, united in protesting against tolerating the
claim of the legislative department to exercise any other than purely legislative power.

It has been said in many of the leading cases decided by the highest courts of record that "the
power of the legislature is the power to legislate only and to make such investigations as are
necessary for that purpose."

Under a constitutional form of government it is believed that all will agree that the
concentration of power in the legislative department of government or in any one of the other
departments will inevitably result in despotism.

Mr. Bryce, who for many years was a close student of the system of government under the
American flag, said: "A legislature is a legislature and nothing more." Mr. Woodrow Wilson, in
discussing the powers of the executive and legislative departments of government, said: "The
power of the legislative department is to enact laws, while it is the duty of the President to see
that the laws of Congress are failthfully executed."

A careful reading of the debates, in the Constitutional Convention, by the greatest statesmen
and diplomats at that time shows clearly that one of their greatest concerns was the limitation
upon the powers of the executive and legislative departments. A reading of the Constitution
itself adopted after a long discussion shows clearly that its members intended to expressly
limit the powers of said departments. In the enumeration of the powers of the three
departments the phrase that each "shall" or "shall not" do a particular thing is frequently found.
No general unlimited power is found. Experience had shown that there was need of curbing
the legislative body in order to prevent a violation of the citizens' right of liberty and property.
The members of the Constitution Convention made an effort to strike at the very root of the
evils which the people of the state had suffered by the madness of a sovereign legislative
body.

James Madison, a member of the Convention, and later President of the United States, said:
"Experience had proved a tendency in our governments (state governments) to throw all
power into the legislative vortex. The executives of the states are, in general, little more than
ciphers; the legislature, omnipotent. If no effectual check be devised in restraining the
instability and encroachment of the latter, a revolution of some kind or other would be
inevitable."

Gouverneur Morris, one of the great statesmen of his time, said that "he concurred in thinking
the public liberty in greater danger from legislative usurpation than from any other source."
(July 21, 1787.)

James Madison, in September, 1787, in speaking of the encroachments of the legislative

department, said: "The experience of the states had demonstrated that their checks are
insufficient. The legislative department is everywhere extending the spheres of its activity and
draining all power into its impetuous vortex. I have appealed to experience for the truth of
what I advance on this subject."

Mr. James Wilson, a member of the Constitutional Convention and one of the first members of
the Supreme Court of the United States, said on the 16th day of June, 1787: "If the legislative
authority be not restrained there can be neither liberty nor stability."

The great statesmen who were among the members of the Constitutional Convention were as
solicitous about the limitations of the executive department of the government, as they were
concerning the limitations of the legislative department. They were exceedingly cautious in
defining the powers of each of said departments, and so far as their knowledge and
experience aided them their work was complete.

POWERS OF THE PHILIPPINES LEGISLATURE, GRANTED BY THE PHILIPPINE

CHARTER

Turning to the Act of Congress of August 29, 1916, commonly known as the "Jones Law," for
the purpose of ascertaining what power or authority to legislate was granted to the Philippine
Legislature, we find that, while the legislature was given "general legislative power" (secs. 7, 8,
12), "all laws enacted by the Philippine Legislature shall be reported to the Congress of the
United States, which reserved the power and authority to annul the same." Not only must all
laws enacted by the Philippine Legislature be reported to Congress for approval but certain
laws, in addition to the requirement that they must be submitted to Congress, must be
submitted to the President of the United States for approval (secs. 9, 10, and 19). In other
words, no act of the Philippine Legislature can have the force and effect of a law until it has
been either expressly or tacitly approved either by the Congress of the United Statesor by the
President. Neither will it be contended that the express or tacit approval by the Congress of
the United States or by the President, of a law otherwise illegal and void, will render such law
valid if, in fact, it was adopted without power or authority.
 THE AUTHORITY OF THE PHILIPPINE LEGISLATURE TO ENACT LAWS IS WHOLLY A
DELEGATED AUTHORITY

The only legislative authority possessed by the Philippine Legislature is a delegated authority.
The only power or authority to legislate is granted by the Congress of the United States by the
charter (Jones Law; Act of July 2, 1902). To ascertain the power of the Philippine Legislature,
therefore, an examination of its charter must be made.

It is argued that when either the President or the Congress of the United States gives express
or tacit approval to an Act of the Philippine Legislature, that such an act thereby becomes a
valid subsisting law. That argument is tenable, except when such act is beyond the powers
granted to the Legislature. The approval by the President or Congress of an act of the
Philippine Legislature does not render such an act legal if, in fact, the same is beyond the
powers of the Legislature or contrary to the fundamental law of the land. If the provisions of
the act extend beyond the powers of the Legislature, then certainly it cannot be contended
that the same is a valid and legal act even though the same has been expressly or tacitly
approved by the President or Congress, unless the same can be considered an act of the
congress of the United States and then only, when the same is within the power and authority
of Congress. Such act of the Philippine Legislature, even with such approval, can be no more
valid and legal than if the Congress of the United States itself had adopted a law which was
beyond its power. The legality of such act, notwithstanding the approval, may be decided in a
proper proceeding for the purpose of determining whether its provisions are beyond the
powers of the legislative department of the government.

The general legislative powers granted to the Philippine Legislature and found in sections 6, 7,
8, and 12 of the Act of August 29, 1916, and those provisions of the Act of July 2, 1902, which
have not been repealed. Section 6 provides that the laws now in force in the Philippines shall
continue in force, except as altered, amended or modified herein, until altered, amended or
repealed by the legislative authority herein provided by the Act of Congress.

Section 7 provides that the legislative authority herein provided shall have power, when not
inconsistent with this Act, by due enactment, to amend, alter, modify or repeal any law, civil or
criminal, continued in force by this Act, as it may from time to time see fit.

Section 8 provides that general legislative power, except as otherwise herein provided, is
hereby granted to the Philippine Legislature, authorized by this Act. Section 12, among other
things, provides that general legislative power in the Philippines, except as herein otherwise
provided, shall be vested in the Legislature, which shall consist of two houses, one the Senate
and the other, the House of Representatives, and the two houses shall be designated "the
Philippine Legislature."

From a reading of said sections 6, 7, 8, and 12 we have some difficulty in determining why it
was necessary to repeat practically the same idea concerning the legislative authority in said
sections. The provisions of sections 6, 7, and 12 add nothing to the provisions of section 8
which granted general legislative power to the Philippine Legislature.

We have read said Act of Congress of August 29, 1916, in vain, to find the slightest reference
to the power of the Philippine Legislature to participate in the slightest degree, by legislation
or otherwise, in the execution of its laws even after they have been approved expressly or
tacitly by the President or Congress, unless such power is found in that provision of the law,
and then only in the Philippine Senate, which gives that branch of the Legislature the right to
participate, with its advice and consent, in the appointment of certain officers the Government.
But even that provision can scarcely be construed to mean that the Senate can participate in
the execution of the laws.

THE ONLY SOVEREIGN IN THE PHILIPPINE ISLANDS IS THE SOVEREIGNTY OF THE

UNITED STATES

The people of the Philippine Islands exercise in all matter of government a delegated authority.
The executive, the legislative, and the judicial departments of the government are merely
exercising a delegated authority. These departments, unlike the departments of Government
in the United States under the Constitution, have received no authority from the people of the
Philippine Islands. In the absence of Congressional authority, these departments have no
authority or power. They are each creatures of the Congress of the United States. Like all
agents, they must act within the authority given. The title of acts of the Philippine Legislature,
by which it assumes to enact laws "by its own authority" is an assumption of authority not
possessed in fact nor in law. It acts by authority of the Congress of the United States and in
the enactment of laws that authority should be recognized.

RIGHT OF PHILIPPINE LEGISLATURE TO APPOINT COMMITTEES TO MAKE

INVESTIGATIONS IN ORDER TO ENACT WISE LEGISLATION.

In addition to the power to enact, the Philippine Legislature has the inherent power on its own
account, or through committees appointed by it, to inquire into the general condition of the
government, the administration of governmental affairs and the general welfare of the people,
to obtain information to aid it in adopting wise legislation. When such investigation is
terminated and laws are adopted, then the authority of the legislature is ended and the
execution of such laws is turned over to the Executive Department of the Government.

THE POWER AND AUTHORITY OF THE EXECUTIVE UNDER THE CHARTER OF THE
PHILIPPINE GOVERNMENT

From a further examination of the Act of Congress of August 29, 1916, in relation with the Act
of Congress of July 2, 1902, we find a depository of power and authority created for the
express purpose of executing the laws of the Philippines. (Section 21 of said Act (August 29,
1916) provides "that the supreme executive power shall be vested in an executive officer
whose official title shall be the Governor-General of the Philippine Islands." It occurs to us that
when the Congress of the United States used the words "supreme executive power" that the
phrase was used after a careful consideration of its meaning. It was not a haphazard use of
the term. The use of that phrase was carefully considered by the Congress of the United
States when the Jones Bill was under consideration. In addition to the enumerated powers
conferred upon the "supreme executive power," we find that he is held responsible for the
faithful execution of the laws of the Philippine Islands." The language of section 22 is "he shall
be responsible for the faithful execution of the laws of the Philippine Islands." There is nothing
in any of the provisions of the Jones Law which authorizes or permits the "supreme executive
power" to divide its responsibility for the faithful execution of the laws of the Philippine Islands
with any other department, legislative or judicial, or with any of the bureaus of the
Government. All executive functions of the Philippine Government are expressly under the
direction and control of the Governor-General.

Outside of the provisions for the internal regulation and control of the affairs of the legislature,
its rules and regulations in its relation with the confirmation of certain appointees by the
Governor-General, there is not a syllable, a word, a phrase, a line, nor a paragraph in the
Jones Law which permits the legislature to participate in the execution of its general or special
laws.

It is a fundamental maxim of political science, recognized and carried into effect in the Federal
Constitution and the constitutions of all the states of the Union, that good government and the
protection of rights require that the legislative, executive, and the judicial powers should not
be confided to the same person or body, but should be apportioned to separate and mutually
independent departments of the government. (Black's Constitutional Law, p. 83.)

The idea of an apportionment of the powers of government, and of their separation into three
coordinate departments is not a modern invention of political science. It was suggested by
Aristotle in his treatise on "Politics." and was not unfamiliar to the more advanced of the
medieval jurists. But the importance of this division of powers, with the principle of
classification, were never fully apprehended, in theory, until Montesquieu gave to the world
his great work "Spirit of the Laws." Since then his analysis of the various powers of the state
has formed part of the accepted political doctrine of the civilized world.

All American constitutions, state and Federal, provide for the separation of the three great
powers of government, and their apportionment to distinct and independent departments of
government.

The principle of the separation of the three departments of the government imposes upon
each the limitation that it must not usurp the powers nor encroach upon the jurisdiction of
either of the others.

The people of the United States ordained in their constitution that "all legislative powers
herein granted shall be vested in a Congress of the United States." The people also declared
that "the executive power shall be vested in a President" and that "the judicial power of the
United States shall be vested in one Supreme Court and in such inferior courts as Congress
may from time to time ordain and establish." It is made clear therefore that the power to
legislate is given to the Congress and that the President and the courts are prohibited from
making laws. The legislature cannot lawfully usurp any of the functions granted by the
Constitution to the executive department. The true meaning of the constitutional division of
governmental powers is simply that the whole power of one of the three departments of
government shall not be exercised by the same hand which possesses the whole power of
either of the other departments.

Mr. Baker, who was Secretary of War of the United States at the time the Jones Law was
adopted, and who perhaps was more familiar with its meaning and purpose than any other
one person, wrote a letter to Governor-General Harrison, in which he said in general terms
that "it would seem to be the part of wisdom for the President and the Governor-General to
admit of no encroachment on those powers and placed in their hands."

Energy and constancy in the executive department of the government is a leading element in
the definition of good government. They are essential to the protection of the people of the
state against foreign attack; they are not les essential to the steady administration of the law;
to the protection of property against those irregular and high-handed combinations which
sometimes interrupt the ordinary course of justice and administration of the law; to the
security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.
A feeble executive in the administration of his department implies a feeble execution of the
government. A feeble execution is but another phrase for a bad execution; and a government
ill executed, whatever it may be in theory, must be, in practice, a bad government. Delay in
the administration of the laws will lead to injustice, dissensions, turmoils, and disorder.

While the legislature has authority to adopt laws and the courts are possessed with power to
construe them, yet finally in its largest sense, the administration of a government and the
execution of the laws so adopted and construed is finally left in the hands of the executive
department of the government.

FORMS OF GOVERNMENT WHICH HAVE EXISTED IN THE PHILIPPINE ISLANDS SINCE

AMERICAN OCCUPATION

Since the 13th day of August, 1898, there have existed in the Philippines several district forms
of Government.

First. A Military Government. From the 13th day of August, 1898, until the 1st day of
September, 1900, there existed a Military Government in the Philippine Islands under the
authority of the President of the United States. That Government exercised all of the powers
of government, including executive, legislative, and judicial.

Second. Divided Military and Civil Government. From the 1st day of September, 1900, to
July 4, 1901, the legislative department of the Government was transferred from the Military
Governor to the United States Philippine Commission, to be thereafter exercised by said
Commission in the place and stead of the Military Government, under such rules and
regulations as the Secretary of War might prescribe, until the establishment of the Civil
Central Government for the Islands, or until Congress should otherwise provide. During that
period the executive authority was vested in the Military Governor while the legislative
authority was vested in the Philippine Commission. (See Instructions of the President of the
United States to the United States Philippine Commission, April 7, 1900.) On the 4th day of
July, 1901, the executive power theretofore possessed by the Military Governor was
transferred to the President of the United States Philippine Commission.

Third. Civil Government. From the 4th day of July, 1901, to the 16th day of October, 1907,
the executive and legislative powers of the Philippine Government were possessed by the
United States Philippine Commission. The President of the Commission not only possessed
and exercised the executive power of the Government but sat as a member of the United
States Philippine Commission as a member of the legislative department of the Government.

Fourth. Legislative Department of the Government Divided into Two Branches. On the 16th
day of October, 1907, the Legislative Department of the Government was divided into two
branches the United States Philippine Commission, and the Philippine Assembly which
form continued up to the 16th day of October, 1916. The Governor-General during that period
not only possessed the executive powers of the Government, but acted as a member of the
branch of the legislative department, known as the United States Philippine Commission.

Fifth. Legislative Department of the Government Separated from the Executive Department.
From the 16th day of October, 1916, until the present time, by virtue of the provisions of the
Jones Law, the executive and legislative departments of the Government have been
separated, each constituting a separate and distinct department of government; the first,
represented by the Governor-General and the second, by the Philippine Legislature.
In each of the separate forms of government above mentioned there existed the executive,
legislative and judicial powers fully established and recognized by the only authority for the
existence of said Government, the Government of the United States.

DUTY OF THE GOVERNOR-GENERAL OF THE PHILIPPINES WHEN ADVISED OF

ILLEGALITY OF A LAW HE MAY DISREGARD IT OR FORMULATE A PROPER ISSUE
TO BE PRESENTED TO THE COURT CONCERNING ITS LEGALITY.

It is the sworn duty of the Governor-General of the Philippines to execute the laws. That duty,
however, does not require him to execute an illegal act of the Legislature. When he is advised
by his legal department that a certain act, or any part thereof, of the Legislature is illegal and
void, he may do one of two things: (a) He may disregard it and refuse to executive it, or (b) he
may formulate an issue upon the alleged illegality and have that question presented to the
courts for solution. He is acting within his powers whichever to these courses he elects to take.
To disregard an illegal and void act of the Legislature is neither tyranny nor a violation of his
sworn duty. It would be a violation of his sworn duty to enforce or permit the enforcement of
an illegal act.

RIGHT OF DIFFERENT DEPARTMENTS TO CONSTRUE POWERS GRANTED UNDER

THE CONSTITUTION OR CHARTER

While in many jurisdictions a provisions exists by virtue of which the executive and legislative
departments may, in case of doubt as to their powers, refer the question to the courts for
decision, no such provision exists in the Philippines. In the absence of such provision it
becomes necessary therefore in the first instance, when a duty is to be performed, for said
departments to pass upon the question of their power to act. Every department of government
invested with constitutional or charter powers must, in many instances, be the judge of their
powers, or they could not act. Such interpretation of their powers is not exclusive. The parties
aggrieved may resort to the courts for a judicial interpretation. (Cooley's Constitutional
Limitations, 73.)

EXCLUSIVE DUTY OF THE GOVERNOR-GENERAL TO PROTECT THE PROPERTY OF

THE GOVERNMENT

It is the duty of the Governor-General, as the supreme executive power, to protect the
property of the Government. If he, by negligence or inattention to that responsibility, permits
the property of the Government to be wasted, destroyed or lost, he subjects himself to the
danger of impeachment. His responsibility is then one of great seriousness. He should not
supinely disregard it. While the legislative department of the Government may adopt laws for
safeguarding and protecting the property, public and private, it cannot intervene in the
enforcement of such law. The legislative department would thereby be taking part, not only in
the enactment of laws but in the execution of the same, which is not permitted under the
American Constitution and system of laws.

WHAT HAS BEEN DONE BY LEGISLATIVE DEPARTMENT FURNISHES NO CRITERION

AS TO REAL POWERS

In support of the contention that the President of the Senate and the Speaker of the house of
Representatives, under Act No. 2705 as amended by Act No. 2822, have a right to intervene
in the execution of said laws, our attention is called to many acts of legislative bodies, where
such bodies have not only enacted laws but have made provisions in the same, by which they
have intervened in their execution. The cited cases support the allegations of the respondents.
Our attention is called especially to Acts Nos. 69, 1415, 1841, 1849, 1870, 1981, 2023, 2479,
2510, 2598, 2957 and 3208 as well as to many acts of the legislatures of different states of the
Union. It is true that in each of the various acts cited, of the Philippine Legislature, a provision
is made for the appointment of certain persons to assist in their execution.

No question has ever been raised concerning the powers of the Legislature in respect of said
acts. The mere fact, however, that the legality of said acts has never been questioned and
their legality has been passed sub silentio, does not create a conclusive presumption that
they were in fact adopted within the powers of the legislative department of the Government.
The fact that a statute has been accepted as valid, and invoked and applied for many years in
cases where its validity was not raised or passed on, does not prevent a court from later
passing on its validity where the question is properly raised and presented.
(McGirr vs. Hamilton and Abreu, 30 Phil., 563, and cases cited.)

LEGALITY OF THAT PROVISION OF ACT NO. 2705, AS AMENDED BY ACT NO. 2822,
CREATING THE "VOTING COMMITTEE"

In addition to the contention that the Legislature, by virtue of the provisions of Acts Nos. 2705
and 2822, not only attempted to legislate but to participate in the execution of its laws, there is
still another objection of the legality of that provision of said acts which creates the "Voting
Committee." One of the inhibitions against the powers of the Philippine Legislature is found in
one of the subparagraphs of section 3 of the Jones Law. Said subparagraph provides: "That
no bill (public or private) which may be enacted into law shall embrace more than one subject,
and that subject shall be expressed in the title of the bill." The title of Act No. 2705 reads: "An
Act to create the National Coal Company." The title of Act No. 2822 is: "An Act to amend
Certain Sections of Act No. 2705, Entitled 'An Act to create the National Coal Company.'" Act
No. 2822 does not amend that provision of Act No. 2705 relating to the "Voting Committee."
The inhibition, therefore, of the Jones Law need not be discussed with reference to the
provisions of Act No. 2822.

Many of the states of the Union have adopted similar constitutional provisions. The purpose of
this legislative restriction and the evils sought to be remedied thereby are clearly stated by Mr.
Sutherland, now an Associate Justice of the Supreme Court of the United States, in his
valuable work on Statutory Construction. In section 111 he says that:

In the construction and application of this constitutional restriction the courts have kept
steadily in view the correction of the mischief against which it was aimed. The object is to
prevent the practice, which was common in all legislative bodies where no such restriction
existed, of embracing in the same bill incongruous matters having no relation to each other, or
to the subject specified in the title, by which measures were often adopted without attracting
attention. Such distinct subjects represented diverse interests, and were combined in order to
unite the members of the legislature who favor either in support of all. These combinations
were corruptive of the legislature and dangerous to the State. Such omnibus bills sometimes
included more than a hundred sections on as many different subjects, with a title appropriate
to the first section, 'and for other purposes.

The failure to indicate in the title of the bill the object intended to be accomplished by the
legislation often resulted in members voting ignorantly for measures which they would not
knowingly have approved. And not only were legislators thus misled, but the public also; so
that legislative provisions were stealthily pushed through in the closing hours of a session,
which, having no merit to commend them, would have been made odious by popular
discussion and remonstrance if their pendency had been reasonably announced. The
constitutional clause under discussion is intended to correct these evils; to prevent such
corrupting aggregations of incongruous measures by confining each act to one subject or
object; to prevent surprise and inadvertence by requiring that subject or object to be
expressed in the title.

In the case of Walker vs. State (49 Ala., 329), the Supreme Court of Alabama stated the
proposition as follows citing and quoting from Cooley's Constitutional Limitations, p. 143:

The object sought to be accomplished and the mischief proposed to be remedied by this
provision are will known. Legislative assemblies for the dispatch of business often pass bills
by their titles only, without requiring them to be read. A specious title sometimes covered
legislation which, if its real character had been disclosed, would not have commanded assent.
To prevent surprise and fraud on the legislature is one of the purposes this provision was
intended to accomplish. Before the adoption of this provision, the title of a statute was often
no indication of its subject or contents.

An evil this constitutional requirement was intended to correct was the blending in one and the
same statute of such things as were diverse in their nature, and were connected only to
combine in favor of all the advocates of each, thus often securing the passage of several
measures, no one of which could have succeeded on its own merits. Mr. Cooley thus sums up
his review of the authorities defining the objects of this provision: "It may, therefore, be
assumed as settled, that the purpose of this provision was: First, to prevent hodge-podge, or
log-rolling legislation; second, to prevent surprise or fraud upon the legislature, by means of
provisions in bills of which the titles gave no information, and which might therefore be
overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people,
through such publication of legislative proceedings as is usually made, of the subjects of
legislation that are being considered, in order that they may have opportunity of being heard
thereon, by petition or otherwise, if they shall so desire.'

"The practice," says the Supreme Court of Missouri, "of comprising in one bill subjects of a
diverse and antagonistic nature, in order to combine in its support members who were in favor
of particular measures, but neither of which measures could command the requisite majority
on its own merits, was found to be not only a corrupting influence in the Legislature itself, but
destructive of the best interests of the State. But this was not more detrimental than that other
pernicious practice by which, though dexterous and unscrupulous management, designing
men inserted clauses in the bodies of bills, of the true meaning of which the titles gave no
indications, and by skillful maneuvering urged them on to their passage. These things led to
fraud, surprise, and injury, and it was found necessary to apply a corrective in the share of a
constitutional provision." (City of St. Louis vs. Tiefel, 42 Mo., 578, 590.)

The authorities are to all intents uniform that this constitutional requirement is mandatory and
not directory. Sutherland on Statutory Construction, section 112, states the rule correctly as
follows:

The efficiency of this constitutional remedy to cure the evil and mischief which has been
pointed out, depends on judicial enforcement; on this constitutional injunction being regarded
as mandatory, and compliance with it essential to the validity of legislation. The mischief
existed notwithstanding the sworn official obligation of legislators; it might be expected to
continue notwithstanding that obligation is formulated and emphasized in this constitutional
injunction, if it be construed as addressed exclusively to them, and only directory. It would, in
a general sense, be a dangerous doctrine to announce that any of the provisions of the
constitution may be obeyed or disregarded at the mere will or pleasure of the legislature,
unless it is clear beyond all question that such was the intention of the framers of that
instrument. It would seem to be a lowering of the proper dignity of the fundamental law to say
that it descends to prescribing rules of order in unessential matters which may be followed or
disregarded at pleasure. The fact is this: That whatever constitutional provision can be looked
upon as directory merely is very likely to be treated by the legislature as if it was devoid of
moral obligation, and to be therefore habitually disregarded.

In the case of Walker vs. State, supra, the court said:

It is the settled law of this court, founded on reasoning which seems to us unanswerable, that
this provision of the constitution is not a mere rule of legislative procedure, directory to the
general assembly, but that it is mandatory, and it is the duty of courts to declare void any
statute not conforming to it.

Justice Cooley, in his work on Constitutional Limitations (pp. 179, 180) states that our courts
have held, without exception, that such constitutional provision is mandatory. (Central
Capiz vs. Ramirez, 40 Phil., 883.)

Inasmuch as the body of said Act contains a provision to which no reference is made in the
title, in view of the well established authorities, we are forced to the conclusion that, that
provision creating the "Voting Committee" is illegal. That illegality, however, is one which may
be separated from the rest of the act without affecting the legality of the other provisions.

THE "VOTING COMMITTEE" AS PUBLIC OFFICERS OF THE GOVERNMENT

It is argued most earnestly by the petitioner, and denied with equal earnestness by the
respondents, that the President of the Senate and the Speaker of the House of
Representatives, acting as members of the "Voting Committee" in participating in voting the
stock of the National Coal Company, were acting as public officials of the government and
that the legislature is without authority to appoint public officials for that purpose or to appoint
public officials at all for any purpose. It is admitted by both parties that the National Coal
Company is a private corporation. It is admitted that the Government of the Philippine Islands
is a stockholder. The law provides that the Governor-General, the President of the Senate,
and the Speaker of the House of Representatives at a stockholders' meeting shall act as a
committee for the purpose of voting said stock. Does that fact make the President of the
Senate and the Speaker of the House of Representatives public officials? In the voting of the
stock do they stand in any different relation to the Government and the National Coal
Company than any other holders of stock? Are they not governed by the same laws, and
by-laws of the corporation like other stockholders?

Mr. Justice Marshall, in the case of the Bank of the United States vs. Planters' Bank of
Georgia (22 U. S., 904 [Feb. 18, 1824]), in discussing the question of the relation of the
Government to private corporation when it becomes a stockholder in a private corporation,
said, among other things: "It is, we think, a sound principle, that when a government becomes
a partner in any trading company, it divests itself, so far as concerns the transactions of that
company, of its sovereign character, and takes that of a private citizen. Instead of
communicating to the company (or corporation) its privileges and its (sovereign) prerogatives,
it descends to a level with those with whom its associates itself, and takes the character which
belongs to its associates, and to the business which is to be transacted . . . . . As a member of
a corporation, a Government never exercises its sovereignty. It acts merely as a corporator,
and exercises no other powers in the management of the affairs of the corporation, than are
expressly given by the incorporating act. The Government of the Union held shares in the old
Bank of the United States; but the privileges of the Government were not imparted by that
circumstance to the bank. The State of Georgia, by giving to the bank the capacity to sue and
be sued, voluntarily strips itself of its sovereign character, so far as respects the transactions
of the bank, and waives all the privileges of that character."

The doctrine announced by Chief Justice Marshall in that case has been followed without
modification not only by the courts but by all of the eminent authors who have written upon
that particular question. (Thompson on Corporations, vol. 1, sec. 167; Bank of
Kentucky vs. Wister, 27 U. S., 318, 322; Briscoe vs. Bank of Kentucky, 36 U. S., 256, 324;
Liuisville Railway Co. vs. Letson, 43 U. S., 497, 550; Curran vs. State of Arkansas, 56 U. S.,
302; Veazie Bank vs. Fenno, 75 U. S., 533; Railroad Co. vs. Commissioner, 103 U. S., 1, 5;
Hopkins vs. Clemson College, 221 U. S., 636, 644; Putnan vs. Ruch, 56 Fed., 416; Wester
Union Tel. Co. vs. Herderson, 68 Fed., 591; U. S. vs. Chesapeake & D. Canal Co., 206 Fed.,
964; Encyclopedia of the U. S. Supreme Court Rep., vol. 11, p. 225; Encyclopedia of the U. S.
Supreme Court Rep., vol. 3, p. 124; Encyclopedia of the U. S. Supreme Court Rep., vol. 4, p.
643.)

The petitioner as well as the respondents cite many cases in support of their respective
contentions. The petitioner cites the following cases:

Pratt vs. Breckinridge (112 Ky., 1); State vs. Brill (100 Minn., 499); State vs. Denny (118 Ind.,
382; 4 L. R. A., 79); State vs. Washburn (167 Mo., 680); State vs. Stanley (66 N. C., 60);
Welker vs. Bledsoe (68 N. C., 457); Howerton vs. Tate (68 N. C., 546); Myers vs. United
States (272 U. S., 52; 71 Law. ed., 160); Concepcion vs.Paredes (42 Phil., 599).

Cases cited by respondents:

The Smithsonian Institution; Mechem's Public Officers, sec. 1; Olmstead vs. Mayor (42 N. Y.
Sup. Ct., 481); United States vs. Germaine (99 U. S., 508); McArthur vs. Nelson (81 Ky., 67);
Congressional Reports, vol. II; State vs. Kennon (7 Ohio State, 562).

See also:

Walker vs. City of Cincinnati (21 Ohio State, 14; 8 Am. Rep., 24); State vs. Hocker (39 Fla.,
477; 63 Am. St. rep., 174); Butler vs. Walker (98 Ala., 358).

After a careful analysis of all of the authorities cited, it is difficult to conclude just what is the
weight of authority, in view of the decision of chief Justice Marshall quoted above. If the
Government acts merely as one of the corporators of the National Coal Company and
exercises no other power in the management of the affairs of the corporation than the one
expressly given by the Incorporatory Act, it is difficult to understand how the "Voting
Committee" is acting as a public officer. It was not the intention of the Legislature to make the
President and Speaker officers of the Government. The Legislature simply intended to add
additional duties to said officers. But after all, in our opinion, the fact that the Legislature
enacted the law and at the same time provided that, through the President and Speaker, it
(the Legislature) should assist in the execution of the same, is sufficient to nullify that
provision. It is a matter of no importance in what capacity they acted. The Legislature had no
authority to take part in the execution of the particular law.

THE RIGHT OF THE COURT OF DECIDE THE QUESTION, WHAT ARE THE RESPECTIVE
POWERS OF THE DIFFERENT DEPARTMENTS OF GOVERNMENT.
It is conceded by all of the eminent authorities upon constitutional law that the courts have
authority to finally determine what are the respective powers of the different departments of
government.

The question of the validity of every statute is first determined by the legislative department of
the Government, and the courts will resolve every presumption in favor of its validity. Courts
are not justified in adjudging a statute invalid in the face of the conclusions of the legislature,
when the question of its validity is at all doubtful. The courts will assume that the validity of a
statute was fully considered by the legislature when adopted. Courts will not presume a
statute invalid unless it clearly appears that it falls within some of the inhibitions of the
fundamental laws of the state. The wisdom or advisability of a particular statute is not a
question for the courts to determine. If a particular statute is within the constitutional power of
the legislature to enact, it should be sustained whether the courts agree or not in the wisdom
of its enactment. If the statute covers subject not authorized by the fundamental laws of the
land, or by the constitution, them the courts are not only authorized but are justified in
pronouncing the same illegal and void, no matter how wise or beneficent such legislation may
seem to be. Courts are not justified in measuring their opinions with the opinion of the
legislative department of the Government, as expressed in statutes, upon questions of the
wisdom, justice and advisability of a particular law. In exercising the high authority conferred
upon the courts to pronounce valid or invalid a particular statute, they are only the
administrators of the public will, as expressed in the fundamental law of the land. If an act of
the legislature is to be held illegal, it is not because the judges have any control over the
legislative power, but because the act is forbidden by the fundamental law of the land and
because the will of the people, as declared in such fundamental law, is paramount and must
be obeyed, even by the legislature. In pronouncing a statute illegal, the courts are simply
interpreting the meaning, force, and application of the fundamental law of the state.
(Case vs. Board of Health and Heiser, 24 Phil., 250, 251.)

The judicial department of the Government may examine every law enacted by the legislative
branch of the Government when the question is properly presented for the purpose of
ascertaining:

(a) Whether or not such law came within the subject-matter upon which the legislative branch
of the Government might legislate; and

(b) Whether the provisions of such law were in harmony with the authority given the
legislature.

If the judicial branch of the Government finds (a) that the legislative or executive branches of
the Government had authority to act upon the particular subject, and (b) that the particular law
contained no provisions in excess of the powers of such department and the acts of the
executive were within his powers, then that investigation, or that conclusion, conclusively
terminates the investigation by the judicial department of the Government.

SOLICITUDE OF THE GOVERNMENT OF THE UNITED STATES AND ITS

REPRESENTATIVES IN THE PHILIPPINE ISLANDS FOR THE WELFARE AND WELL
BEING OF THE INHABITANTS.

No Government, past or present, has more carefully and watchfully guarded and protected,
by law, the individual rights of life and property of the citizens of the Philippine Islands than the
Government of the United States and its representatives. Each of the three departments of
the Government has had separate and distinct functions to perform in this great labor. The
history of the Philippine Islands, covering a period of more than a quarter of a century,
discloses the fact that each department has performed its part well. No one department of the
Government can or ever has claimed, within its discretionary and legal powers, a greater zeal
than the others in its desire to promote the welfare of the individual citizen. They are all joined
together in their respective spheres and departments, harmoniously working to maintain good
government, peace, and order to the end that the rights of each citizen in his life and property
be equally protected. No one department can claim that it has a monopoly of these benign
purposes of the Government. Each department has an exclusive field, under the law, within
which it can perform its part, within certain discretionary limits. No other department can claim
a right to enter these discretionary and legal limits and assume to act there. No presumption
of an abuse of these discretionary powers by one department will be considered, permitted or
entertained by another. Such conduct on the part of one department, instead of tending to
conserve good government and the rights of the people, would directly tend to destroy the
confidence of the people in the Government and to undermine the very foundation of the
Government itself.

CONCLUSIONS

For all of the foregoing reasons the petition for the extraordinary legal writ of quo
warranto should be granted, and that Milton E. Springer, Dalmacio Costas, and Anselmo
Hilario are each illegally and unlawfully occupying the position of members of the Board of
Directors of the National Coal Company and should be ousted and altogether excluded
therefrom; that Romarico Agcaoili, H. L. Health, and Salvador Lagdameo have been duly and
legally elected as members of the Board of Directors of the National Coal Company, and
judgment is rendered that they be immediately inducted into said position, to take charge
thereof and to perform the duties incumbent upon them as members of the Board of Directors.
The demurrer is overruled. Considering the petition and demurrer in relation with the
stipulated facts, there seems to be no reason for permitting an answer to be filed. And without
any finding as to costs, it is so ordered.

AVANCEA, C.J., VILLAMOR and VILLA-REAL, JJ., dissenting:

Much to our regret we have to dissent from the majority whose opinion has always
commanded our respect.

In the case of National Coal Company vs. Collector of Internal Revenue (46 Phil., 583), this
court said:

THE NATIONAL COAL COMPANY, A PRIVATE CORPORATION; SUBJECT TO THE

PAYMENT OF INTERNAL REVENUE UNDER THE PROVISIONS OF SECTION 1496 OF
THE ADMINISTRATIVE CODE. The National Coal Company is a private corporation. The
fact that the Government happens to be a stockholder therein does not make it a public
corporation. It is subject to all the provisions of the Corporation Law in so far as they are not
inconsistent with Act No. 2705. As a private corporation, it has no greater powers, rights, or
privileges than any other corporation which might be organized for the same purpose under
the Corporation Law. It was not the intention of the Legislature to give it a preference, or right,
or privilege over other legitimate private corporations in the mining of coal. The law made no
provision for its occupation and operation of coal-bearing lands, to the exclusion of other
persons or corporation, under proper permission. The National Coal Company being a private
corporation, neither the lessee nor the owner of the lands upon which it mined coal for the
year in question, is subject to the payment of the internal revenue duty provided for in section
1496 of the Administrative Code.
The National Coal Company, having been created and established by the Philippine
Legislature for the purpose of developing the coal industry in the Philippine Islands, in
harmony with the general plan of the Government to encourage the development of the
natural resources of the country, what relation does it bear with said Government? Is it an
agency or instrumentality thereof empowered to perform some government act or function for
governmental purposes?

Agency or instrumentality is defined to be a means by which a certain act is done (2 C.J., 420;
32 C.J., 947). So governmental agency or instrumentality may be defined as a means by
which a government acts, or by which a certain governmental act or function is performed. A
governmental act is a term sometimes used to describe an act done in pursuance of some
duty imposed by the state on a person, individual or corporate, which duty is one pertaining to
the administration of government and as an absolute obligation on a person who receives no
profit or advantage peculiar to himself for its execution (28 C.J., 753, n. 1). Naturally, when a
government acts it does so for purposes of its own. Now, what is the purpose of government?
"A government does not exist in a personal sense, or as an entity in any primary sense, for
the purpose of acquiring, protecting, and enjoying property. It exists primarily for the
protection of the people in their individual rights, and it holds property not primarily for the
enjoyment of property accumulations, but as an incident to the purpose for which it exists
that of serving the people and protecting them in their rights." (Curley vs. U. S., 130 Fed., 1, 8;
28 C.J., 750.) "The term governmental purposes, as used in the constitution which provides
that public property taken for public purposes is exempt from taxation, means, in its most
extensive sense, the punishment for crime, for prevention of a wrong, the enforcement of a
private right, or in some manner preventing wrong from being inflicted upon the public or an
individual, or redressing some grievance, or in some way enforcing a legal right, or redressing
or preventing a public individual injury. (City of Owensboro vs. Com., 105 Ky., 344; 28 C.J.,
753, n. 8).

In the light of the above definitions, let us inquire what governmental act or function does the
National Coal Company perform and for what governmental purposes.

As was stated by this court in the above cited case, "As a private corporation, it has no greater
rights, powers, or privileges than any other corporation which might be organized for the same
purpose under the Corporation Law. It was not the intention of the legislature to give it a
preference, or right, or privilege over other legitimate private corporations in the mining of coal.
The law made no provision for its occupation and operation of coal-bearing lands to the
exclusion of other persons or corporations, under proper permission." It is subject to the
payment of internal revenue tax on its coal output. The Philippine Government owns nothing
in said corporation except the stock which it has purchased therein. The National Coal
Company cannot perform any governmental act, for it has not been authorized to do so. The
fact that it has been created and established for the purpose of developing the coal industry in
the Philippine Islands, in harmony with the general plan of the Government to encourage the
development of the natural resources of the country, and the fact that the Government owns a
majority of the stock thereof, are not alone sufficient to give the National Coal Company the
distinction of being an agency or instrumentality of said Government, just as the investment of
government money in any other corporation of the same nature or in a radio corporation to
which it has given a charter for the purpose of encouraging the development of radio
communication in the Islands is not by itself sufficient to make of such a corporation an
agency or instrumentality of the Government in the political and administrative sense of the
term.
If the National Coal Company is a private corporation, and is not a government agency or
instrumentality, what standing has the Government in said corporation by virtue of its
ownership of a majority of its stock.

In the case of the Bank of the United States vs. Planters' Bank of Georgia (6 Law. ed., 244),
Chief Justice Marshall said:

It is, we think, a sound principle, that when a government becomes a partner in any trading
company, it divests itself, so far as concerns the transactions of that company, of its sovereign
character, and takes that of a private citizen. Instead of communicating to the company its
privileges and its prerogatives, it descends to a level with those with whom it associates itself,
and takes the character which belongs to its associates, and to the business which is to be
transacted. Thus, many states of this Union who have an interest in banks, are not usable
even in their own courts; yet they never exempt the corporation from being sued. The State of
Georgia, by giving to the bank the capacity to sue and be sued, voluntarily strips itself of its
sovereign character, so far as respects the transactions of the bank, and waives all the
privileges of that character. As a member of a corporation, a government never exercise its
sovereignty. It acts merely as a corporator, and exercises no other power in the management
of the affairs of the corporation, than are expressly given by the incorporating act. (Bank of the
United States vs. Planters' Bank of Georgia [22-25 U.S.], 6 Law. ed., 244.)

In the case of the Bank of Kentucky vs. Wister (7 Law. ed., 323), the court, after citing the
above paragraph, added:

To which it may be added, that if a State did exercise any other power in or over a bank, or
impart to it its sovereign attributes, it would be hardly possible to distinguish the issue of the
paper of such banks from a direct issue of bills of credit; which violation of the Constitution, no
doubt the State here intended to avoid.

The Government of the Philippine Islands, as a stockholder, has a right to participate in the
election of the Directors of the National Coal Company by the exercise of its voting power. In
so doing it acts merely as a corporator with no other power than are expressly granted by the
Corporation Law, and does not exercise its sovereignty. It cannot impose its sovereign will,
but it must act according to the by-laws of the corporation. The only control it has is what is
given to it by the amount of its stock.

The Government, as stockholder, has a right to appoint or designate a proxy to vote its stock
in the National Coal Company, and the Philippine Legislature has done this for it by creating in
the same Act a voting committee to be composed exclusively of the Governor-General, the
President of the Senate, and the Speaker of the House of Representatives. Now the question
arises whether or not the position of a proxy of the Government in said corporation is a public
office.

An office is defined by good authority as involving a delegation to the individual of some of the
sovereign functions of government, to be exercised by him for the benefit of the public, by
which it is distinguished from employment or contract. (Mechem Pub. Off. quoted in
Barnhill vs. Thompson, 122 N. C., 403, 405; 29 S. E., 720.)

The word "office" mentioned in the constitution means a position having to do with the general
government of the State (Walker vs. Cincinnati, 21 Ohio St., 145), and that same meaning
must be given to the word "office" mentioned in the Jones Law, which has the character of a
constitution.
Does the committee in voting the stock of the Government perform any sovereign function of
government?

The Government participates in the management of the affairs of the National Coal Company
every time it exercises by proxy the right of voting in the election of its directors, and,
according to Chief Justice Marshall, in so doing it acts as a corporator merely and does not
exercise any sovereign power. Its proxy, in performing his duty exercises no greater power.
And it cannot be otherwise, for we would have the absurd result of an agent exercising a
higher power than that of the principal in the fulfillment of the latter's mandate. If the voting of
the stock of the Government in the election of the directors of the National Coal Company is
the act, not of the Government in its sovereign capacity, but of a corporator merely, the
designation of the members of the voting committee by the Government to vote its stock does
not involved a delegation of a sovereign function of government, for the function delegated is
of a private and not of a public nature.

The case of State vs. Stanley (66 N. C., 59; 8 Am. Rep., 488), cited in the brief for the plaintiff,
wherein it was held that membership in a committee, composed of the President of the
Senate and the Speaker of the House of Representatives of the State of North Carolina, is an
office, is not in point, for said committee was entrusted with the appointment of directors and
proxies in all the corporations in which the State was a stockholder; while the committee
under consideration has no other power except to vote the stock of the Government in the
National Coal Company. In that case the committee was an appointer of directors and proxies;
in this case the committee is a mere proxy.

Is the public directly benefited by the exercise of the delegated power of voting the stock of
the Government by the committee? When the committee votes the stock of the Government,
as a stockholder, the corporation and its stockholder alone are directly benefited by the act,
and the public only indirectly by way of an increased material prosperity. But this is not the
kind of benefit that is sought to be obtained by the creation of a public office. It is the benefit
that is deserved from the protection of life, liberty, property, and the pursuit of happiness.

The voting of the stock of the Government which is delegated to the committee, not being a
part of the sovereign functions of the said Government, and not being exercised for the direct
benefit of the public, membership therein is not a public office.

Let us now examine into the question whether or not the designation of the President of the
Senate and the Speaker of the House of Representatives, as ex-officio members of said
committee, by section 4 of Act No. 2705, as amended by Act No. 2822, is constitutional, and
therefore valid.

If the membership in the voting committee is not a public office, the designation by the
Philippine Legislature of its own members as members ex-oficio thereof is not in violation of
the principle of separation of powers. It will not be denied that the power of appointment to
certain offices vested in the Governor-General by the Jones Law refers only to public
executive office; that his power of supervision and control is limited to public executive
functions, and that the responsibility imposed upon him for the faithful execution of the laws
refers only to laws of public nature. Membership in the voting committee, not being a public
office, the Governor-General has no power to appoint its members; the voting of the stock of
the Government not being a public executive function, he has no supervision and control over
it; and the law creating the National Coal Company and designating a voting committee not
being a public law, he is not charged with the responsibility of executing it. Therefore, in
creating the voting committee and designating the President of the Senate and the Speaker of
the House of Representatives as ex-officio members thereof the Philippine Legislature did not
encroach upon any of the powers of the Governor-General.

The contention that the Legislature cannot execute its own laws, is contrary to the
congressional interpretation expressed on various occasions, specially in the case of "The
Smithsonian Institution." In incorporating it, the Congress has provided for its management
"by a Board of Regents" named the Regent of the Smithsonian Institution, to be composed of
the Vice-President, the Chief Justice of the United States, and three members of the Senate
and three members of the House of Representatives; together with six other persons, other
than members of the Congress, two of whom shall be resident of the City of Washington; and
the other four shall be inhabitants of same State, but no two of them in the same State" (9 Fed.
St. An., sec. 588 [a]). The members of the Senate were to be appointed by the President
thereof; and the member of the House, by the Speaker thereof. Granting, for the sake of
argument, that membership in the voting committee is a public office, does the designation of
the President of the Senate and of the Speaker of the House of Representatives as ex-officio
members of the said committee an encroachment upon the power of appointment to office
vested in the Governor-General.

No challenge seems to have been made to the power of the Philippine Legislature to
designate the Governor-General or any other executive officer to serve on said voting
committee or any public office, and a challenge of that nature, if made at all, will find no
support in the authorities (12 C.J., 837).

What is vigorously attacked is the power of the Legislature to designate any of its members to
serve on said voting committee, the contention being that the exercise of such power is a
violation of the principle of separation of powers and an encroachment upon the power of
appointment to office vested in the Governor-General by the Jones Law.

By some authorities the power of appointment to office is regarded as per se an executive

function, which, therefore, may not be exercised, vested, or controlled by the legislature
except in so far as it is a necessary incident to the exercise of the legislative power or is
vested by the constitution in the legislature. By the great weight of authority, however, the
power of appointment is held not to be per se an executive function, and unless the
appointment of particular officers is, by the constitution, expressly conferred on the executive
department or forbidden to the legislature the latter may, by statute, vest the power of
appointment in its discretion. The ordinary constitutional distributive clause providing for the
complete separation of governmental power has generally been held insufficient to vest the
appointing power solely in the executive. Thus a statute conferring on a circuit judge the
power to fill vacancies in a board of park commissioners is valid. So a board of civil service
commissioners may be appointed by the legislature for the purpose of prescribing
qualifications for offices except such as are otherwise provided for in the constitution. (12 C.J.,
836, par. 319, n. 1.)

A provision of the constitution precluding the legislature from electing or appointing officers
does not invalidate an act creating a board or commission of which certain state officers shall
be ex-officio members, nor prevent the legislature from imposing new functions on existing
officers. (12 C.J., 837, par. 319, n. 5.)

Under the American system of government the chief executive has no prerogative powers,
but is confined to the exercise of those powers conferred upon him by the constitution and
statutes. (12 C. J., 898, par. 402; State vs. Bowden, 92 S. C., 393; Richardson vs. Young,
122 Tenn., 471.)
This must be true of the Governor-General of the Philippine Islands, when section 21 of the
Jones Law says in part:

He shall, unless otherwise herein provided, appoint, by and with the consent of the Philippine
Senate, such officers as may now be appointed by the Governor-General, or such as he is
authorized by this Act to appoint, or whom he may hereafter be authorized by law to appoint.

The enumeration of the instances in which the Governor-General may make appointments,
implies that he has not been empowered to make all appointments. The expression "whom he
may hereafter be authorized by the law to appoint," implies clearly that there may be certain
cases in which he may not be authorized to make appointments.

It is contended that the legislature may make such appointments where the source of power is
the people or the constitution made by the people, as the residuum of power is entrusted in
the legislature; but that this may not be done in the Philippine Islands where the source of
power is the Congress of the United States, and the Philippine Legislature only acts by
delegation of said body. The Congress of the United States, after enumerating the powers
pertaining to each of the three departments of the Government and declaring which are the
functions of each, has reserved to itself the power and authority annul the laws enacted by the
Philippine Legislature, which must be reported to it (Jones Law, sec. 19). If the Congress of
the United States had intended to limit the powers of the Philippine Legislature to those
enumerated by it in the Organic Act and to those of purely legislative character, it would seem
that there would have been no necessity for making such reservation; because all laws
passed by the Philippine Legislature which are within its powers will of necessity be valid, and
all laws in excess of its powers will be null and void, and the courts will so declare them. It is
only when a residuum of power is left with a legislature which does not owe its powers to the
people or to a constitution made by the people, as the Philippine Legislature, that such
reservation becomes necessary; for it may exercise a power which the Congress had not
intended it should exercise, and which the latter may be powerless to correct, giving room to
doubts with no other means of solving them except by judicial decision, which may be
precisely the contrary of what the Congress may have intended. If such reservation of power
and authority has any meaning at all, as it must have, it cannot be other than to avoid doubts
and undertainties as to the authority of the legislature to enact certain laws, by permitting
those affected by them to determine by the action or inaction of Congress whether or not such
power was one of those constituting the residuum.

Furthermore, nothing could have prevented the Congress of the United States from giving to
the Philippine Legislature the power of appointment to an office which have not previously
been vested expressly in the Governor-General, as nothing had prevented if from placing in
the hands of the Philippine Commission not only executive but legislative powers as well. If so,
there is nothing that can prevent it from ratifying any law by which executive officers are
created and filled by the legislature with its own members. Ratification may be made either
expressly or impliedly. Act No. 2705, as amended by Act No. 2822, having been reported to
Congress, the failure of the latter to annul it was equivalent to an implied ratification.

In the case of Fajardo Sugar Co. of Porto rico vs. Holcomb, decided on Noveberm 23, 1926,
the Federal Court of the First Circuit said:

If, turning from the section specifically dealing with the powers of the auditor, we look more
broadly at the structure of the Government of Porto Rico provided under the Organic Act,
we are driven to the same conclusion. Under that Act, the Governor-General,
Attorney-General, Commissioner of Education, and Auditor are presidential appointees. The
Governor has, in general, the powers of the Governor of one of our states, and, besides, he is
required annually to make official report of the transactions of the government of Porto Rico to
the executive department of the United States, to be designated by the President, and the
said annual report shall be transmitted to the Congress. Moreover, in section 34 (Camp. St.,
par. 3803 n), it is provided that if, after veto of the Governor, the Legislature shall by a
two-thirds vote pass an Act over the veto, the Governor, if he shall not then approve, shall
transmit the proposed Act to the President of the United States; that "if the President of the
United States approve the same he shall sign it and it shall become a law. If he shall not
approve same, he shall return it to the Governor so stating, and it shall not become a law." It
follows that no Act can become a law without the approval of the Porto Rican Governor, a
presidential appointee, or the President of the United States. There is also a provision in
section 34 that:

'All laws enacted by the legislature of Porto Rico shall be reported to the Congress of the
United States . . . which hereby reserves the power and authority to annul same.'

If not thus annulled, within reasonable time, there is a presumption that they are approved.
(Tiaco vs.Forbes, 228 U. S., 549, 558; 33 S. Ct. 585; 57 Law. ed., 960; Porto
Rico vs. American, etc., R. R., 254 F., 369; 165 C. C. A., 589; Camunas vs. P. R. Ry., etc., Co.
[C. C. A.], 272 F., 924, 931, and cases cited.)

The result is that all Porto Rican legislation now on the statute books is in a very real sense,
though indirectly the output of our Federal Government. Under such conditions, the court
should not lightly assume that the tax acts of Porto Rico, now contended to be in conflict with
section 20 of the Organic Act, are inconsistent and therefore invalid. Doubtless the relation of
the Organic Act to the Porto Rican Government is in certain respects, like the relation of a
state Constitution to a state Legislature. (Camunasvs. P. R. Ry., etc., Co. [C. C. A.], 272 F.,
924, 928.)

But the analogy is not complete; for, after all, the Organic Act is nothing but federal legislation,
and Porto Rican legislation, approved expressly or impliedly by Congress, has exactly the
same import.

The only prohibition to the appointment of members of the Philippine Legislature to executive
public offices is that contained in section 18 of the Jones Law, which says that "No Senator or
Representative shall, during the time for which he may have been elected, be eligible to any
office the election to which is vested in the Legislature, nor shall be appointed to any office of
trust or profit which shall have been created or the emoluments of which shall have been
increased during such term." The present Speaker of the House of Representatives is clearly
not within said prohibition, as Act No. 2705 creating said committee was enacted in 1917,
before his term of office began in 1922; so the now President of the Senate, for which the said
Act was passed during his term of office, that term had already expired in 1922, and he is not
serving another term (1922-1928).

Therefore, the Philippine Legislature may not only create the voting committee but designate
the President of the Senate and the Speaker of the House of Representatives as ex-officio
members of said committee, always granting, for the sake of argument, that membership
therein is a public office.

It only remains now for us to dispose of another question, that of the power of the
Governor-General to vote the stock of the Government alone, granting again, for the sake of
argument, that section 4 of Act No. 2705, as amended by Act No. 2822, is unconstitutional in
so far as it refers to the designation of the President if the Senate and the Speaker of the
House of Representatives as ex-officio members of the voting committee.

The provision in constitutions as to distribution of powers, and as to the executive power of

the state being vested in the Governor, is declaratory and does not confer any specific
powers" (12 C. J., 898; Field vs.Peo, 3 Ill., 79). The power to vote the stock of the
Government is delegated to a committee to be composed exclusively of the
Governor-General, the President of the Senate, and the Speaker of the House of
Representatives, and the rule is "Where the power is delegated for a mere private purpose, all
the persons (if more than one), upon whom the authority is conferred must unite and concur in
the exercise. In case of the delegation of a public authority to three or more persons, the
authority conferred may be exercised and performed by a majority of the whole member. If the
act to be done by virtue of such public authority requires the exercise of discretions and
judgment, in order words, if it is a judicial act, the persons to whom the authority is
delegated must meet and confer together, and be present when the act is performed; or at
least a majority must meet, confer, and be present after all have been notified to attend.
Where the act is to be done is merely ministerial, a majority must concur and unite in the
performance of the act, but they may act separately. (18 C. J., 472, note 3-a; Perry vs. Tynen,
22 Barb [N. Y., 137, 140].)

Whether we consider the delegation of the power to vote the stock of the Government as for
public or private purpose, the Governor-General alone cannot exercise it as the voting
requires the exercise of discretion and judgment, and at least a majority must concur after all
have been notified.

To recapitulate, we believe that we have demonstrated the following propositions:

1. That the National Coal Company is not an agency or instrumentality of the Government of
the Philippine Islands.

2. That the Government of the Philippine Islands, as mere corporator, if it had to vote its own
stock would have to do so in the capacity of a private citizen, and not in its sovereign capacity.

3. That the voting committee in exercising the power delegated to it does so in the same
capacity as its principal.

4. That the voting of the stock of the Government is a private act, and the committee in doing
so performs a private function, and therefore membership therein is a private and not a public
office.

5. That membership in the voting committee being a private position and not a public office,
the designation by the Philippine Legislature of the President of the Senate and the Speaker
of the House of Representatives as ex-officio members thereof was not an encroachment
upon the power of supervision and control over all executive functions of the Government
vested in the Governor-General.

6. That even granting that membership in said committee is a public office, still the Philippine
Legislature has the power to designate the President of the Senate and the Speaker of the
House of Representatives as ex-officio members of said committee, by virtue of the residuum
of power placed in its hands by the Congress of the United States.
7. That whether we consider the delegation of the voting power as for public or private
purposes, the Governor-General alone cannot exercise that power as it requires discretion
and judgment, and at least a majority must concur.

8. That, finally, the Congress of the United States by its reserved power and authority to annul
any law of the Philippine Legislature, has by its silence impliedly ratified Act No. 2705, as
amended by Act No. 2822.

For the foregoing considerations we are of the opinion that the demurrer should be sustained
and the complaint be dismissed.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 203372 June 16, 2015

ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner,

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

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

G.R. No. 206290

ATTY. DINDO G. VENTURANZA, Petitioner,

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

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

G.R. No. 209138

IRMA A. VILLANUEVA and FRANCISCA B. ROSQUITA, Petitioners,

vs.
COURT OF APPEALS and THE OFFICE OF THE PRESIDENT, Respondents.

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

G.R. No. 212030

EDDIE U. TAMONDONG, Petitioner,

vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent.

DECISION

CARPIO, J.:

The present consolidated cases involve four petitions: G.R. No. 203372 with Atty. Cheloy E.
Velicaria-Garafil (Atty. Velicaria-Garafil), who was appointed State Solicitor II at the Office of
the Solicitor General (OSG), as petitioner; G.R. No. 206290 with Atty. Dindo G. Venturanza
(Atty. Venturanza), who was appointed Prosecutor IV (City Prosecutor) of Quezon City, as
petitioner; G.R. No. 209138 with Irma A. Villanueva (Villanueva), who was appointed
Administrator for Visayas of the Board of Administrators of the Cooperative Development
Authority (CDA), and Francisca B. Rosquita (Rosquita), who was appointed Commissioner of
the National Commission of Indigenous Peoples (NCIP), as petitioners; and G.R. No. 212030
with Atty. Eddie U. Tamondong (Atty. Tamondong), who was appointed member of the Board
of Directors of the Subic Bay Metropolitan Authority (SBMA), as petitioner. All petitions
question the constitutionality of Executive Order No. 2 (EO 2) for being inconsistent with
Section 15, Article VII of the 1987 Constitution.

Petitioners seek the :reversal of the separate Decisions of the Court of Appeals (CA) that
dismissed their petitions and upheld the constitutionality of EO 2. G.R. No. 203372 filed by
Atty. Velicaria-Garafil is a Petition for Review on Certiorari,1 assailing the Decision2 dated 31
August 2012 of the CA in CA-G.R. SP No. 123662. G.R. No. 206290 filed by Atty. Venturanza
is a Petition for Review on Certiorari,3 assailing the Decision4 dated 31 August 2012 and
Resolution5 dated 12 March 2013 of the CA in CA-G.R. SP No. 123659. G.R. No. 209138 filed
by Villanueva and Rosquita is a Petition for Certiorari,6 seeking to nullify the Decision7 dated
28 August 2013 of the CA in CA-G.R. SP Nos. 123662, 123663, and 123664.8 Villanueva and
Rosquita filed a Petition-in-Intervention in the consolidated cases before the CA. G.R. No.
212030 is a Petition for Review on Certiorari,9 assailing the Decision10dated 31 August 2012 of
the CA in CAG.R. SP No. 123664 and Resolution11 dated 7 April 2014 of the CA in CAG.R. SP
Nos. 123662, 123663, and 123664.12

Facts of the Cases

Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-Arroyo
(President Macapagal-Arroyo) issued more than 800 appointments to various positions in
several government offices.

The ban on midnight appointments in Section 15, Article VII of the 1987 Constitution reads:

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

Thus, for purposes of the 2010 elections, 10 March 2010 was the cutoff date for valid
appointments and the next day, 11 March 2010, was the start of the ban on midnight
appointments. Section 15, Article VII of the 1987 Constitution recognizes as an exception to
the ban on midnight appointments only "temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety." None of
the petitioners claim that their appointments fall under this exception.

Appointments

G.R. No. 203372

The paper evidencing Atty. Velicaria-Garafil's appointment as State Solicitor II at the OSG
was dated 5 March 2010.13 There was a transmittal letter dated 8 March 2010 of the
appointment paper from the Office of the President (OP), but this transmittal letter was
received by the Malacaang Records Office (MRO) only on 13 May 2010. There was no
indication as to the OSG's date of receipt of the appointment paper. On 19 March 2010, the
OSG's Human Resources Department called up Atty. Velicaria-Garafil to schedule her
oath-taking. Atty. Velicaria-Garafil took her oath of office as State Solicitor II on 22 March
2010 and assumed her position on 6 April 2010.
 G.R. No. 206290

The paper evidencing Atty. Venturanza's appointment as Prosecutor IV (City Prosecutor) of

Quezon City was dated 23 February 2010.14 It is apparent, however, that it was only on 12
March 2010 that the OP, in a letter dated 9 March 2010, transmitted Atty. Venturanza's
appointment paper to then Department of Justice (DOJ) Secretary Alberto C. Agra.15 During
the period between 23 February and 12 March 2010, Atty. Venturanza, upon verbal advice
from Malacaang of his promotion but without an official copy of his appointment paper,
secured clearances from the Civil Service Commission (CSC),16 Sandiganbayan,17 and the
DOJ.18 Atty. Venturanza took his oath of office on 15 March 2010, and assumed office on the
same day.

G.R. No. 209138

The paper evidencing Villanueva's appointment as Administrator for Visayas of the Board of
Administrators of the CDA was dated 3 March 2010.19 There was no transmittal letter of the
appointment paper from the OP. Villanueva took her oath of office on 13 April 2010.

The paper evidencing Rosquita's appointment as Commissioner, representing Region I and

the Cordilleras, of the NCIP was dated 5 March 2010.20 Like Villanueva, there was no
transmittal letter of the appointment paper from the OP. Rosquita took her oath of office on 18
March 2010. G.R. No. 212030

The paper evidencing Atty. Tamondong's appointment as member, representing the private
sector, of the SBMA Board of Directors was dated 1 March 2010.21 Atty. Tamondong admitted
that the appointment paper was received by the Office of the SBMA Chair on 25 March
201022 and that he took his oath of office on the same day.23 He took another oath of office on 6
July 2010 as "an act of extra caution because of the rising crescendo of noise from the new
political mandarins against the so-called 'midnight appointments."'24

To summarize, the pertinent dates for each petitioner are as follows:

Date of Date of Date of Date of

Assumption of
G.R. No. Appointment Transmittal Receipt by Oath of
Office
Letter Letter MRO Office
203372
13 May 22 March
(Atty. 5 March 2010 8 March 2010 6 April 2010
2010 2010
Velicaria-Garafil)
206290 23 February 12 March 15 March 15 March
9 March 2010
(Atty. Venturanza) 2010 2010 2010 2010
209138 13 April
3 March 2010 4 May 2010
(Villanueva) 2010
209138 13 May 18 March
5 March 2010
(Rosquita) 2010 2010
25 March
212030
2010 and
(Atty. 1 March 2010
6 July
Tamondong)
2010
Issuance of EO 2

On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his oath of office
as President of the Republic of the Philippines. On 30 July 2010, President Aquino issued EO
2 recalling, withdrawing, and revoking appointments issued by President Macapagal-Arroyo
which violated the constitutional ban on midnight appointments.

The entirety of EO 2 reads:

EXECUTIVE ORDER NO. 2

RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS ISSUED

BY THE PREVIOUS ADMINISTRATION IN VIOLATION OF THE
CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS, AND FOR
OTHER PURPOSES.

WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that "Two
months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety."; WHEREAS, in
the case of "In re: Appointments dated March 30, 1998 of Hon. Mateo
Valenzuela and Hon. Vallarta as Judges of the Regional Trial Court of Branch
62 of Bago City and Branch 24 of Cabanatuan City, respectively" (A.M. No.
98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this provision to
mean that the President is neither required to make appointments nor allowed
to do so during the two months immediately before the next presidential
elections and up to the end of her term. The only known exceptions to this
prohibition are (1) temporary appointments in the executive positions when
continued vacancies will prejudice public service or endanger public safety
and in the light of the recent Supreme Court decision in the case of De Castro,
et al. vs. JBC and PGMA, G.R. No. 191002, 17 March 2010, (2) appointments
to the Judiciary;

WHEREAS, Section 261 of the Omnibus Election Code provides that:

"Section 261. Prohibited Acts.-The following shall be guilty of an election

offense:

(g) Appointments of new employees, creation of new position, promotion, or

giving salary increases. - During the period of forty-five days before a regular
election and thirty days before a special election.

(1) Any head, official or appointing officer of a government office, agency or

instrumentality, whether national or local, including government-owned or
controlled corporations, who appoints or hires any new employee, whether
provisional, temporary or casual, or creates and fills any new position, except
upon prior authority to the Commission. The Commission shall not grant the
authority sought unless it is satisfied that the position to be filled is essential to
the proper functioning of the office or agency concerned, and that the position
shall not be filled in a manner that may influence the election.
As an exception to the foregoing provisions, a new employee may be
appointed in the case of urgent need:

Provided, however, that notice of the appointment shall be given to the

Commission within three days from the date of the appointment. Any
appointment or hiring in violation of this provision shall be null and void.

(2) Any government official who promotes or gives any increase of salary or
remuneration or privilege to any government official or employee, including
those in government-owned or controlled corporations.";

WHEREAS, it appears on record that a number of appointments were made

on or about 10 March 2010 in complete disregard of the intent and spirit of the
constitutional ban on midnight appointment and which deprives the new
administration of the power to make its own appointment;

WHEREAS, based on established jurisprudence, an appointment is deemed

complete only upon acceptance of the appointee;

WHEREAS, in order to strengthen the civil service system, it is necessary to

uphold the principle that appointments to the civil service must be made on
the basis of merit and fitness, it is imperative to recall, withdraw, and revoke
all appointments made in violation of the letter and spirit of the law;

NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers

vested in me by the Constitution as President of the Philippines, do hereby
order and direct that:

SECTION 1. Midnight Appointments Defined. - The following appointments

made by the former President and other appointing authorities in departments,
agencies, offices, and instrumentalities, including government-owned or
controlled corporations, shall be considered as midnight appointments:

(a) Those made on or after March 11, 2010, including all appointments
bearing dates prior to March 11, 2010 where the appointee has accepted, or
taken his oath, or assumed public office on or after March 11, 2010, except
temporary appointments in the executive positions when continued vacancies
will prejudice public service or endanger public safety as may be determined
by the appointing authority.

(b) Those made prior to March 11, 2010, but to take effect after said date or
appointments to office that would be vacant only after March 11, 2010.

(c) Appointments and promotions made during the period of 45 days prior to
the May 10, 2010 elections in violation of Section 261 of the Omnibus Election
Code.

SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments.

Midnight appointments, as defined under Section 1, are hereby recalled,
withdrawn, and revoked. The positions covered or otherwise affected are
hereby declared vacant.
 SECTION 3. Temporary designations. - When necessary to maintain
efficiency in public service and ensure the continuity of government
operations, the Executive Secretary may designate an officer-in-charge (OIC)
to perform the duties and discharge the responsibilities of any of those whose
appointment has been recalled, until the replacement of the OIC has been
appointed and qualified.

SECTION 4. Repealing Clause. - All executive issuances, orders, rules and

regulations or part thereof inconsistent with the provisions of this Executive
Order are hereby repealed or modified accordingly.

SECTION 5. Separability Clause. - If any section or provision of this executive

order shall be declared unconstitutional or invalid, the other sections or
provision not affected thereby shall remain in full force and effect.

SECTION 6. Effectivity. - This Executive order shall take effect immediately.

DONE in the City of Manila, this 30th day of July, in the year Two Thousand
and Ten.

By the President:

(Sgd.) PAQUITO N. OCHOA, JR.

Executive Secretary25

(Sgd.) BENIGNO S. AQUINO III

Effect of the Issuance of EO 2

G.R. No. 203372

On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor General (Sol. Gen.
Cadiz). On 6 August 2010, Sol. Gen. Cadiz instructed a Senior Assistant Solicitor General to
inform the officers and employees affected by EO 2 that they were terminated from service
effective the next day.

Atty. Velicaria-Garafil reported for work on 9 August 2010 without any knowledge of her
termination. She was made to return the office-issued laptop and cellphone, and was told that
her salary ceased as of 7 August 2010. On 12 August 2010, Atty. Velicaria-Garafil was
informed that her former secretary at the OSG received a copy of a memorandum on her
behalf. The memorandum, dated 9 August 2010, bore the subject "Implementation of
Executive Order No. 2 dated 30 July 2010" and was addressed to the OSG's Director of
Finance and Management Service.

Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No. 193327) before this Court on 1
September 2010. The petition prayed for the nullification of EO 2, and for her reinstatement as
State Solicitor II without loss of seniority, rights and privileges, and with full backwages from
the time that her salary was withheld.26

G.R. No. 206290

On 1 September 2010, Atty. Venturanza received via facsimile transmission an undated copy
of DOJ Order No. 556. DOJ Order No. 556, issued by DOJ Secretary Leila M. De Lima (Sec.
De Lima), designated Senior Deputy State Prosecutor Richard Anthony D. Fadullon (Pros.
Fadullon) as Officer-in-Charge of the Office of the City Prosecutor in Quezon City. In a letter
to Sec. De Lima dated 15 September 2010, Atty. Venturanza asked for clarification of his
status, duties, and functions since DOJ Order No. 556 did not address the same. Atty.
Venturanza also asked for a status quo ante order to prevent Pros. Fadullon from usurping
the position and functions of the City Prosecutor of Quezon City. Atty. Venturanza also wrote
a letter to President Aquino on the same day, and sought reaffirmation of his promotion as
City Prosecutor of Quezon City.

On 6 October 2010, Atty. Venturanza received a letter dated 25 August 2010 from Sec. De
Lima which directed him to relinquish the office to which he was appointed, and to cease from
performing its functions.

Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus with Urgent Prayer for
Status Quo Ante Order, Temporary Restraining Order and/or Preliminary Mandatory
Injunction (G.R. No. 193 867) before this Court on 14 October 2010.27

G.R. No. 209138

The OP withheld the salaries of Villanueva and Rosquita on the basis of EO 2. On 3 August
2010, Villanueva and Rosquita sought to intervene in G.R. No. 192991.28 On 1 October 2010,
Executive Secretary Paquito N. Ochoa, Jr. revoked Rosquita's appointment as NCIP
Commissioner.29 On 13 October 2010, Villanueva and Rosquita notified this Court that they
wanted to intervene in Atty. Tamondong's petition (G.R. No. 192987) instead.

G.R. No. 212030

Atty. Tamondong was removed from the SBMA Board of Directors on 30 July 2010. He filed a
petition for prohibition, declaratory relief and preliminary injunction with prayer for temporary
restraining order (G.R. No. 192987) before this Court on 9 August 2010. The petition prayed
for the prohibition of the implementation of EO 2, the declaration of his appointment as legal,
and the declaration of EO 2 as unconstitutional.30

Referral to CA

There were several petitions31 and motions for intervention32 that challenged the
constitutionality of EO 2.

On 31 January 2012, this Court issued a Resolution referring the petitions, motions for
intervention, as well as various letters, to the CA for further proceedings, including the
reception and assessment of the evidence from all parties. We defined the issues as follows:

1. Whether the appointments of the petitioners and intervenors were midnight appointments
within the coverage of EO 2;

2. Whether all midnight appointments, including those of petitioners and intervenors, were
invalid;
3 . Whether the appointments of the petitioners and intervenors were made with undue haste,
hurried maneuvers, for partisan reasons, and not in accordance with good faith; and

4. Whether EO 2 violated the Civil Service Rules on Appointment.33

This Court gave the CA the authority to resolve all pending matters and applications, and to
decide the issues as if these cases were originally filed with the CA.

Rulings of the CA

Even though the same issues were raised in the different petitions, the CA promulgated
separate Decisions for the petitions. The CA consistently ruled that EO 2 is constitutional. The
CA, however, issued different rulings as to the evaluation of the circumstances of petitioners'
appointments. In the cases of Attys. Velicaria-Garafil and Venturanza, the CA stated that the
OP should consider the circumstances of their appointments. In the cases of Villanueva,
Rosquita, and Atty. Tamondong, the CA explicitly stated that the revocation of their
appointments was proper because they were midnight appointees.

G.R. No. 203372 (CA-G.R. SP No. 123662)

The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31 August 2012. The CA
ruled that EO 2 is not unconstitutional. However, the CA relied on Sales v. Carreon34 in ruling
that the OP should evaluate whether Atty. Velicaria-Garafil's appointment had extenuating
circumstances that might make it fall outside the ambit of EO 2.

The dispositive portion of the CA's Decision reads:

WHEREFORE, the petition for certiorari and mandamus [is] DENIED.

Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.

The issue on whether or not to uphold petitioner's appointment as State Solicitor II at the OSG
is hereby referred to the Office of the President which has the sole authority and discretion to
pass upon the same.

SO ORDERED.35

G.R. No. 212030 (CA-G.R. SP No. 123664)

On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP No. 123664. The
dispositive portion reads as follows:

WHEREFORE, premises considered, the instant Petition is hereby DISMISSED. Executive

Order No. 2 is hereby declared NOT UNCONSTITUTIONAL. Accordingly, the revocation of
Atty. Eddie Tamondong's appointment as Director of Subic Bay Metropolitan Authority is
VALID for being a midnight appointment.

SO ORDERED.39

The Issues for Resolution

We resolve the following issues in these petitions: (1) whether petitioners' appointments
violate Section 15, Article VII of the 1987 Constitution, and (2) whether EO 2 is constitutional.
Ruling of the Court

The petitions have no merit. All of petitioners' appointments are midnight appointments and
are void for violation of Section 15, Article VII of the 1987 Constitution. EO 2 is constitutional.
Villanueva and Rosquita, petitioners in G.R. No. 209138, did not appeal the CA's ruling under
Rule 45, but instead filed a petition for certiorari under Rule 65. This procedural error alone
warrants an outright dismissal of G.R. No. 209138. Even if it were correctly filed under Rule
45, the petition should still be dismissed for being filed out of time.40 There was also no
explanation as to why they did not file a motion for reconsideration of the CA's Decision.
Midnight Appointments

This ponencia and the dissent both agree that the facts in all these cases show that "none of
the petitioners have shown that their appointment papers (and transmittal letters) have been
issued (and released) before the ban."41The dates of receipt by the MRO, which in these
cases are the only reliable evidence of actual transmittal of the appointment papers by
President Macapagal-Arroyo, are dates clearly falling during the appointment ban. Thus, this
ponencia and the dissent both agree that all the appointments in these cases are midnight
appointments in violation of Section 15, Article VII of the 1987 Constitution.

Constitutionality of EO 2

Based on prevailing jurisprudence, appointment to a government post is a process that takes

several steps to complete. Any valid appointment, including one made under the exception
provided in Section 15, Article VII of the 1987 Constitution, must consist of the President
signing an appointee's appointment paper to a vacant office, the official transmittal of the
appointment paper (preferably through the MRO), receipt of the appointment paper by the
appointee, and acceptance of the appointment by the appointee evidenced by his or her oath
of office or his or her assumption to office.

Aytona v. Castillo (Aytona)42 is the basis for Section 15, Article VII of the 1987 Constitution.
Aytona defined "midnight or last minute" appointments for Philippine jurisprudence. President
1 wphi1

Carlos P. Garcia submitted on 29 December 1961, his last day in office, 350 appointments,
including that of Dominador R. Aytona for Central Bank Governor. President Diosdado P.
Macapagal assumed office on 30 December 1961, and issued on 31 December 1961
Administrative Order No. 2 recalling, withdrawing, and cancelling all appointments made by
President Garcia after 13 December 1961 (President Macapagal's proclamation date).
President Macapagal appointed Andres V. Castillo as Central Bank Governor on 1 January
1962. This Court dismissed Aytona's quo warranto proceeding against Castillo, and upheld
Administrative Order No. 2's cancellation of the "midnight or last minute" appointments. We
wrote:

x x x But the issuance of 350 appointments in one night and the planned induction of almost
all of them a few hours before the inauguration of the new President may, with some reason,
be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other
conditions, and thereby to deprive the new administration of an opportunity to make the
corresponding appointments.

x x x Now it is hard to believe that in signing 350 appointments in one night, President Garcia
exercised such "double care" which was required and expected of him; and therefore, there
seems to be force to the contention that these appointments fall beyond the intent and spirit of
the constitutional provision granting to the Executive authority to issue ad interim
appointments.

Under the circumstances above described, what with the separation of powers, this Court
resolves that it must decline to disregard the Presidential .Administrative Order No. 2,
cancelling such "midnight" or "last-minute" appointments.

Of course the Court is . aware of many precedents to the effect that once an appointment has
been issued, it cannot be reconsidered, specially where the appointee has qualified. But none
of them refer to mass ad interim appointments (three hundred and fifty), issued in the last
hours of an outgoing Chief Executive, in a setting similar to that outlined herein. On the other
hand, the authorities admit of exceptional circumstances justifying revocation and if any
circumstances justify revocation, those described herein should fit the exception.

Incidentally, it should be stated that the underlying reason for denying the power to revoke
after the appointee has qualified is the latter's equitable rights. Yet it is doubtful if such equity
might be successfully set up in the present situation, considering the rush conditional
appointments, hurried maneuvers and other happenings detracting from that degree of good
faith, morality and propriety which form the basic foundation of claims to equitable relief. The
appointees, it might be argued, wittingly or unwittingly cooperated with the stratagem to beat
the deadline, whatever the resultant consequences to the dignity and efficiency of the public
service. Needless to say, there are instances wherein not only strict legality, but also fairness,
justice and righteousness should be taken into account.43

During the deliberations for the 1987 Constitution, then Constitutional Commissioner (now
retired Supreme Court Chief Justice) Hilario G. Davide, Jr. referred to this Court's ruling in
Aytona and stated that his proposal seeks to prevent a President, whose term is about to end,
from preempting his successor by appointing his own people to sensitive positions.

MR. DAVIDE: The idea of the proposal is that about the end of the term of the President, he
may prolong his rule indirectly by appointing people to these sensitive positions, like the
commissions, the Ombudsman, the judiciary, so he could perpetuate himself in power even
beyond his term of office; therefore foreclosing the right of his successor to make
appointments to these positions. We should realize that the term of the President is six years
and under what we had voted on, there is no reelection for him. Yet he can continue to rule
the country through appointments made about the end of his term to these sensitive
positions.44

The 1986 Constitutional Commission put a definite period, or an empirical value, on Aytona's
intangible "stratagem to beat the deadline," and also on the act of "preempting the President's
successor," which shows a lack of "good faith, morality and propriety." Subject to only one
exception, appointments made during this period are thus automatically prohibited under the
Constitution, regardless of the appointee's qualifications or even of the President's motives.
The period for prohibited appointments covers two months before the elections until the end
of the President's term. The Constitution, with a specific exception, ended the President's
power to appoint "two months immediately before the next presidential elections." For an
appointment to be valid, it must be made outside of the prohibited period or, failing that, fall
under the specified exception.

The dissent insists that, during the prohibited period, an appointment should be viewed in its
"narrow sense." In its narrow sense, an appointment is not a process, but is only an
"executive act that the President unequivocally exercises pursuant to his discretion."45 The
dissent makes acceptance of the appointment inconsequential. The dissent holds that an
appointment is void if the appointment is made before the ban but the transmittal and
acceptance are made after the ban. However, the dissent holds that an appointment is valid,
or "efficacious," if the appointment and transmittal are made before the ban even if the
acceptance is made after the ban. In short, the dissent allows an appointment to take effect
during the ban, as long as the President signed and transmitted the appointment before the
ban, even if the appointee never received the appointment paper before the ban and
accepted the appointment only during the ban.

The dissent's view will lead to glaring absurdities. Allowing the dissent's proposal that an
appointment is complete merely upon the signing of an appointment paper and its transmittal,
excluding the appointee's acceptance from the appointment process, will lead to the absurdity
that, in case of non-acceptance, the position is considered occupied and nobody else may be
appointed to it. Moreover, an incumbent public official, appointed to another public office by
the President, will automatically be deemed to occupy the new public office and to have
automatically resigned from his first office upon transmittal of his appointment paper, even if
he refuses to accept the new appointment. This will result in chaos in public service.

Even worse, a President who is unhappy with an incumbent public official can simply appoint
him to another public office, effectively removing him from his first office without due process.
The mere transmittal of his appointment paper will remove the public official from office
without due process and even without cause, in violation of the Constitution.

The dissent's proferred excuse (that the appointee is not alluded to in Section 15, Article VII)
for its rejection of "acceptance by the appointee" as an integral part of the appointment
process ignores the reason for the limitation of the President's power to appoint, which is .to
prevent the outgoing President from continuing to rule the country indirectly after the end of
his term. The 1986 Constitutional Commission installed a definite cut-off date as an objective
and unbiased marker against which this once-in-every-six-years prohibition should be
measured.

The dissent's assertion that appointment should be viewed in its narrow sense (and is not a
process) only during the prohibited period is selective and time-based, and ignores
well-settled jurisprudence. For purposes of complying with the time limit imposed by the
appointment ban, the dissent' s position cuts short the appointment process to the signing of
the appointment paper and its transmittal, excluding the receipt of the appointment paper and
acceptance of the appointment by the appointee.

The President exercises only one kind of appointing power. There is no need to differentiate
the exercise of the President's appointing power outside, just before, or during the
appointment ban. The Constitution allows the President to exercise the power of appointment
during the period not covered by the appointment ban, and disallows (subject to an exception)
the President from exercising the power of appointment during the period covered by the
appointment ban. The concurrence of all steps in the appointment process is admittedly
required for appointments outside the appointment ban. There is no justification whatsoever
to remove acceptance as a requirement in the appointment process for appointments just
before the start of the appointment ban, or during the appointment ban in appointments falling
within the exception. The existence of the appointment ban makes no difference in the power
of the President to appoint; it is still the same power to appoint. In fact, considering the
purpose of the appointment ban, the concurrence of all steps in the appointment process
must be strictly applied on appointments made just before or during the appointment ban.
In attempting to extricate itself from the obvious consequences of its selective application, the
dissent glaringly contradicts itself:

Thus, an acceptance is still necessary in order for the appointee to validly assume his post
and discharge the functions of his new office, and thus make the appointment effective. There
can never be an instance where the appointment of an incumbent will automatically result in
his resignation from his present post and his subsequent assumption of his new position; or
where the President can simply remove an incumbent from his current office by appointing
him to another one. I stress that acceptance through oath or any positive act is still
indispensable before any assumption of office may occur.46 (Emphasis added)

The dissent proposes that this Court ignore well-settled jurisprudence during the appointment
ban, but apply the same jurisprudence outside of the appointment ban.

[T]he well-settled rule in our jurisprudence, that an appointment is a process that begins with
the selection by the appointing power and ends with acceptance of the appointment by the
appointee, stands. As early as the 1949 case of Lacson v. Romero, this Court laid down the
rule that acceptance by the appointee is the last act needed to make an appointment
complete. The Court reiterated this rule in the 1989 case of Javier v. Reyes. In the 1996 case
of Garces v. Court of Appeals, this Court emphasized that acceptance by the appointee is
indispensable to complete an appointment. The 1999 case of Bermudez v. Executive
Secretary, cited in the ponencia, affirms this standing rule in our jurisdiction, to wit:

"The appointment is deemed complete once the last act required of the appointing authority
has been complied with and its acceptance thereafter by the appointee in order to render it
effective."47

The dissent's assertion creates a singular exception to the well-settled doctrine that
appointment is a process that begins with the signing of the appointment paper, followed by
the transmittal and receipt of the appointment paper, and becomes complete with the
acceptance of the appointment. The dissent makes the singular exception that during the
constitutionally mandated ban on appointments, acceptance is not necessary to complete the
appointment. The dissent gives no reason why this Court should make such singular
exception, which is contrary to the express provision of the Constitution prohibiting the
President from making appointments during the ban. The dissent's singular exception will
allow the President, during the ban on appointments, to remove from office incumbents
without cause by simply appointing them to another office and transmitting the appointment
papers the day before the ban begins, appointments that the incumbents cannot refuse
because their acceptance is not required during the ban. Adoption by this Court of the
dissent's singular exception will certainly wreak havoc on the civil service.

The following elements should always concur in the making of a valid (which should be
understood as both complete and effective) appointment: (1) authority to appoint and
evidence of the exercise of the authority; (2) transmittal of the appointment paper and
evidence of the transmittal; (3) a vacant position at the time of appointment; and (4) receipt of
the appointment paper and acceptance of the appointment by the appointee who possesses
all the qualifications and none of the disqualifications. The concurrence of all these elements
should always apply, regardless of when the appointment is made, whether outside, just
before, or during the appointment ban. These steps in the appointment process should
always concur and operate as a single process. There is no valid appointment if the process
lacks even one step. And, unlike the dissent's proposal, there is no need to further distinguish
between an effective and an ineffective appointment when an appointment is valid.
Appointing Authority

The President's exercise of his power to appoint officials is provided for in the Constitution
and laws.48 Discretion is an integral part in the exercise of the power of
appointment.49 Considering that appointment calls for a selection, the appointing power
necessarily exercises a discretion. According to Woodbury, J., "the choice of a person to fill
an office constitutes the essence of his appointment," and Mr. Justice Malcolm adds that an
"[a]ppointment to office is intrinsically an executive act involving the exercise of discretion." In
Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court we held:

The power to appoint is, in essence, discretionary. The appointing power has the right of
choice which he may exercise freely according to his judgment, deciding for himself who is
best qualified among those who have the necessary qualifications and eligibilities. It is a
prerogative of the appointing power x x x x

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an
exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment
papers to the appointee. In other words, the choice of the appointee is a fundamental
component of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it
(Congress) cannot at the same time limit the choice of the President to only one candidate.
Once the power of appointment is conferred on the President, such conferment necessarily
carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications
of the officer, Congress may not abuse such power as to divest the appointing authority,
directly or indirectly, of his discretion to pick his own choice. Consequently, when the
qualifications prescribed by Congress can only be met by one individual, such enactment
effectively eliminates the discretion of the appointing power to choose and constitutes an
irregular restriction on the power of appointment.50

Transmittal

It is not enough that the President signs the appointment paper. There should be evidence
that the President intended the appointment paper to be issued. It could happen that an
appointment paper may be dated and signed by the President months before the appointment
ban, but never left his locked drawer for the entirety of his term. Release of the appointment
paper through the MRO is an unequivocal act that signifies the President's intent of its
issuance.

The MRO was created by Memorandum Order No. 1, Series of 1958, Governing the
Organization and Functions of the Executive Office and General Matters of Procedure
Therein. Initially called the Records Division, the MRO functioned as an administrative unit of
the Executive Office. Memorandum Order No. 1 assigned the following functions:

a. Receive, record and screen all incoming correspondence, telegrams, documents and
papers, and

(1) Forward those of a personal and unofficial nature to the President's Private Office; and

(2) Distribute those requiring action within the Office or requiring staff work prior to
presentation to the President to the appropriate units within the Office.
b. Follow up on correspondence forwarded to entities outside the Office to assure that prompt
replies are made and copies thereof furnished the Office.

c. Dispatch outgoing correspondence and telegrams.

d. Have custody of records of the Office, except personal papers of the President, and keep
them in such condition as to meet the documentary and reference requirements of the Office.

e. Keep and maintain a filing and records system for acts, memoranda, orders, circulars,
correspondence and other documents affecting the Office for ready reference and use.

f. Issue certified true copies of documents on file in the Division m accordance with prevailing
standard operating procedure.

g. Keep a separate record of communications or documents of confidential nature.

h. Have custody of the Great Seal of the Republic of the Philippines.

i. Prepare and submit to the approving authority, periodic disposition schedules of non-current
records which have no historical, legal and/or claim value.

j. With the approval of the Executive Secretary, assist other offices in the installation or
improvement of their records management system; and

k. Give instructions or deliver lectures and conduct practical training to in-service trainees
from other offices and to students from educational institutions on records management.51

The Records Division was elevated to an Office in 1975, with the addition of the following
functions:

1. Maintain and control vital documents and essential records to support the functions of the
OP in its day to day activities;

2. Monitor the flow of communications' from their time of receipt up to their dispatch;

3. Service the documentary, information and reference requirements of top management and
action officers of the OP, and the reference and research needs of other government
agencies and the general public;

4. Ensure the proper storage, maintenance, protection and preservation of vital and
presidential documents, and the prompt disposal of obsolete and valueless records;

5. Effect the prompt publication/dissemination of laws, presidential issuances and classified

documents;

6. Provide computerized integrated records management support services for easy reference
and retrieval of data and information; and

7. To be able to represent the OP and OP officials in response to Subpoena Duces Tecum

and Testificandum served by courts and other investigating bodies.52
For purposes of verification of the appointment paper's existence and authenticity, the
appointment paper must bear the security marks (i.e., handwritten signature of the President,
bar code, etc.) and must be accompanied by a transmittal letter from the MRO.

The testimony of Mr. Mariani to Dimaandal, Director IV of the MRO, underscores the purpose
of the release of papers through his office.

Q: What are the functions of the MRO?

A: The MRO is mandated under Memorandum Order No. 1, series of 1958 to (1) receive,
record, and screen all incoming correspondence, telegrams, documents, and papers; (2)
follow up on correspondence forwarded to entities outside the Office of the President ("OP")
to assure that prompt replies are made and copies thereof furnished the OP; (3) timely
dispatch all outgoing documents and correspondence; (4) have custody of records of the OP,
except personal papers of the President, and keep them in such condition as to meet the
documentary and reference requirements of the Office; (5) keep and maintain a filing and
records system for Acts, Memoranda, Orders, Circulars, correspondence, and other pertinent
documents for ready reference and use; ( 6) issue certified copies of documents on file as
requested and in accordance with prevailing standard operating procedures; (7) maintain and
control vital documents and essential records to support the OP in its day-to-day activities; (8)
monitor the flow of communications from the time of receipt up to their dispatch; and (9) other
related functions.

xxxx

Q: As you previously mentioned, the MRO is the custodian of all documents emanating from
Malacaang pursuant to its mandate under Memorandum Order No. 1, Series of 1958. Is the
MRO required to follow a specific procedure in dispatching outgoing documents?

A: Yes.

Q: Is this procedure observed for the release of an appointment paper signed by the
President? A: Yes. It is observed for the release of the original copy of the appointment paper
signed by the President.

Q: Can you briefly illustrate the procedure for the release of the original copy of the
appointment paper signed by the President?

A: After an appointment paper is signed by the President, the Office of the Executive
Secretary (OES) forwards the appointment paper bearing the stamp mark, barcode, and
hologram of the Office of the President, together with a transmittal letter, to the MRO for
official release. Within the same day, the MRO sends the original copy of the appointment
paper together with the transmittal letter and a delivery receipt which contains appropriate
spaces for the name of the addressee, the date released, and the date received by the
addressee. Only a photocopy of the appointment is retained for the MRO's official file.

Q: What is the basis for the process you just discussed?

A: The Service Guide of the MRO.

xxxx
Q: What is the legal basis for the issuance of the MRO Service Guide, if any?

A: The MRO Service Guide was issued pursuant to Memorandum Circular No. 35, Series of
2003 and Memorandum Circular No. 133, Series of 2007.

xxxx

Q: Do you exercise any discretion in the release of documents forwarded to the MRO for
transmittal to various offices?

A: No. We are mandated to immediately release all documents and correspondence

forwarded to us for transmittal.

Q: If a document is forwarded by the OES to the MRO today, when is it officially released by
the MRO to the department or agency concerned?

A: The document is released within the day by the MRO if the addressee is within Metro
Manila. For example, in the case of the appointment paper of Dindo Venturanza, the OES
forwarded to the MRO on March 12, 2010 his original appointment paper dated February 23,
2010 and the transmittal letter dated March 9, 2010 prepared by the OES. The MRO released
his appointment paper on the same day or on March 12, 2010, and was also received by the
DOJ on March 12, 2010 as shown by the delivery receipt.

Q: What is the effect if a document is released by an office or department within Malacaan

without going through the MRO?

A: If a document does not pass through the MRO contrary to established procedure, the MRO
cannot issue a certified true copy of the same because as far as the MRO is concerned, it
does not exist in our official records, hence, not an official document from the Malacaang.
There is no way of verifying the document's existence and authenticity unless the document is
on file with the MRO even if the person who claims to have in his possession a genuine
document furnished to him personally by the President. As a matter of fact, it is only the MRO
which is authorized to issue certified true copies of documents emanating from Malacaan
being the official custodian and central repository of said documents. Not even the OES can
issue a certified true copy of documents prepared by them.

Q: Why do you say that, Mr. Witness?

A: Because the MRO is the so-called "gatekeeper" of the Malacaang Palace. All incoming
and outgoing documents and correspondence must pass through the MRO. As the official
custodian, the MRO is in charge of the official release of documents.

Q: What if an appointment paper was faxed by the Office of the Executive Secretary to the
appointee, is that considered an official release by the MRO?

A: No. It is still the MRO which will furnish the original copy of the appointment paper to the
appointee. That appointment paper is, at best, only an "advanced copy."

Q: Assuming the MRO has already received the original appointment paper signed by the
President together with the transmittal letter prepared by the OES, you said that the MRO is
bound to transmit these documents immediately, that is, on the same day?
A: Yes.

Q: Were there instances when the President, after the original appointment paper has already
been forwarded to the MRO, recalls the appointment and directs the MRO not to transmit the
documents?

A: Yes, there were such instances.

Q: How about if the document was already transmitted by the MRO, was there any instance
when it was directed to recall the appointment and retrieve the documents already transmitted?
A: Yes, but only in a few instances. Sometimes, when the MRO messenger is already in
transit or while he is already in the agency or office concerned, we get a call to hold the
delivery. Q: You previously outlined the procedure governing the transmittal of original copies
of appointment papers to the agency or office concerned. Would you know if this procedure
was followed by previous administrations?

A: Yes. Since I started working in the MRO in 1976, the procedure has been followed.
However, it was unusually disregarded when the appointments numbering more than 800
were made by then President Arroyo in March 2010. The MRO did not even know about some
of these appointments and we were surprised when we learned about them in the
newspapers.

Q: You mentioned that then President Arroyo appointed more than 800 persons in the month
of March alone. How were you able to determine this number?

A: My staff counted all the appointments made by then President An-oyo within the period
starting January 2009 until June 2010.

Q: What did you notice, if any, about these appointments?

A: There was a steep rise in the number of appointments made by then President Arroyo in
the month of March 2010 compared to the other months.

Q: Do you have any evidence to show this steep rise?

A: Yes. I prepared a Certification showing these statistics and the graphical representation
thereof.

Q: If those documents will be shown to you, will you be able to recognize them?

A: Yes.

Q: I am showing you a Certification containing the number of presidential appointees per

month since January 2009 until June 2010, and a graphical representation thereof. Can you
go over these documents and tell us the relation of these documents to the ones you
previously mentioned?

A: These are [sic] the Certification with the table of statistics I prepared after we counted the
appointments, as well as the graph thereof.

xxxx
Q: Out of the more than 800 appointees made in March 2010, how many appointment papers
and transmittal letters were released through the MRO?

A: Only 133 appointment papers were released through the MRO.

Q: In some of these transmittal letters and appointment papers which were not released
through the MRO but apparently through the OES, there were portions on the stamp of the
OES which supposedly indicated the date and time it was actually received by the agency or
office concerned but were curiously left blank, is this regular or irregular?

A: It is highly irregular.

Q: Why do you say so?

A: Usually, if the document released by the MRO, the delivery receipt attached to the
transmittal letter is filled out completely because the dates when the original appointment
papers were actually received are very material. It is a standard operating procedure for the
MRO personnel to ask the person receiving the documents to write his/her name, his
signature, and the date and time when he/she received it.

Q: So, insofar as these transmittal letters and appointment papers apparently released by the
OES are concerned, what is the actual date when the agency or the appointee concerned
received it?

A: I cannot answer. There is no way of knowing when they were actually received because
the date and time were deliberately or inadvertently left blank.

Q: Can we say that the date appearing on the face of the transmittal letters or the appointment
papers is the actual date when it was released by the OES?

A: We cannot say that for sure. That is why it is very unusual that the person who received
these documents did not indicate the date and time when it was received because these
details are very important.53

The MRO's exercise of its mandate does not prohibit the President or the Executive Secretary
from giving the appointment paper directly to the appointee. However, a problem may arise if
an appointment paper is not coursed through the MRO and the appointment paper is lost or
the appointment is questioned. The appointee would then have to prove that the appointment
paper was directly given to him.

Dimaandal's counsel made this manifestation about petitioners' appointment papers and their
transmittal:

Your Honors, we respectfully request for the following markings to be made:

1. A) The Transmittal Letter pertinent to the appointment of petitioner DINDO VENTURANZA

dated March 9, 2010 as Exhibit "2-F" for the respondents;

B) The delivery receipt attached in front of the letter bearing the date March 12, 2010 as
Exhibit "2-F-l";
C) The Appointment Paper of DINDO VENTURANZA dated February 23, 2010 as Exhibit
"2-G" for the respondents;

2. A) The Transmittal Letter pertinent to the appointment of CHELOY E.

VELICARIA-GARAFIL turned over to the MRO on May 13, 2010 consisting of seven (7) pages
as Exhibits "2-H," "2-H-l," "2-H-2," "2-H-3," "2-H-4," "2-H-5," and "2-H-6" respectively for the
respondents;

i. The portion with the name "CHELOY E. VELICARIAGARAFIL" as "State Solicitor II, Office
of the Solicitor General" located on the first page of the letter as Exhibit "2-H-7;"

ii. The portion rubber stamped by the Office of the Executive Secretary located at the back of
the last page of the -letter showing receipt by the DOJ with blank spaces for the date and time
when it was actually received as Exhibit "2-H-8;"

B) The Appointment Paper of CHELOY E. VELICARIA-GARAFIL dated March 5, 2010 as

Exhibit "2-I" for the respondents;

xxxx

4. A) The Transmittal Letter pertinent to the appointment of EDDIE U. TAMONDONG dated 8

March 2010 but turned over to the MRO only on May 6, 2010 consisting of two (2) pages as
Exhibits "2-L" and "2-L-l" respectively for the respondents;

(a) The portion with the name "EDDIE U. TAMONDONG" as "Member, representing the
Private Sector, Board of Directors" as Exhibit "2-L-2";

(b) The portion rubber stamped by the Office of the Executive Secretary located at the back of
the last page of the letter showing receipt by Ma. Carissa O. Coscuella with blank spaces for
the date and time when it was actually received as Exhibit "2-L-3";

xxxx

8. A) The Transmittal Letter pertinent to the appointments of x x x FRANCISCA

BESTOYONG-ROSQUITA dated March 8, 2010 but turned over to the MRO on May 13, 2010
as Exhibit "2-T" for the respondents;

xxxx

(c) The portion with the name "FRANCISCA BESTOYONGROSQUIT A" as "Commissioner,
Representing Region I and the Cordilleras" as Exhibit "2-T-3"

(d) The portion rubber stamped by the Office of the Executive Secretary at the back thereof
showing receipt by Masli A. Quilaman of NCIP-QC on March 15, 2010 as Exhibit "2-T-4;"

xxxx

D) The Appointment Paper of FRANCISCA BESTOYONGROSQUIT A dated March 5, 2010

as Exhibit "2-W" for the respondents;
9. A) The Transmittal Letter pertinent to the appointment of IRMA A. VILLANUEVA as
Administrator for Visayas, Board of Administrators, Cooperative Development Authority,
Department of Finance dated March 8, 2010 as Exhibit "2-X" for the respondents;

(a) The portion rubber stamped by the Office of the Executive Secretary at the back thereof
showing receipt by DOF with blank spaces for the date and time when it was actually received
as Exhibit "2-X-1 ;"

B) The Appointment Paper of IRMA A. VILLANUEVA dated March 3, 2010 as Exhibit "2-Y" for
the respondents.54

The testimony of Ellenita G. Gatbunton, Division Chief of File Maintenance and Retrieval
Division of the MRO, supports Dimaandal's counsel's manifestation that the transmittal of
petitioners' appointment papers is questionable.

Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as State Solicitor II of the
Office of the Solicitor General, was her appointment paper released through the MRO?

A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter,
was merely turned over to the MRO on May 13, 2010. The transmittal letter that was turned
over to the MRO was already stamped "released" by the Office of the Executive Secretary,
but the date and time as to when it was actually received were unusually left blank.

Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MRO.

xxxx

Q: In the case of Eddie U. Tamondong, who was appointed as member of the Board of
Directors of Subic Bay Metropolitan Authority, was her [sic] appointment paper released
through the MRO?

A: No. His appointment paper dated March 1, 2010, with its corresponding transmittal letter,
was merely turned over to the MRO on May 6, 2010. The transmittal letter that was turned
over to the MRO was already stamped "released" by the Office of the Executive Secretary,
but the date and time as to when it was actually received were unusually left blank.

Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MRO.

xxxx

Q: In the case of Francisca Bestoyong-Resquita who was appointed as Commissioner of the

National Commission on Indigenous Peoples, representing Region 1 and the Cordilleras, was
her appointment paper released thru the MRO?

A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter,
was merely turned over to the MRO on May 13, 2010. The transmittal letter that was turned
over to the MRO was already stamped "released" by the Office of the Executive Secretary
and received on March 15, 2010.

Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MRO.

xxxx

Q: In the case of Irma A. Villanueva who was appointed as Administrator for Visayas of the
Cooperative Development Authority, was her appointment paper released thru the MRO?

A: No. Her appointment paper dated March 3, 2010, with its corresponding transmittal letter,
was merely turned over to the MRO on May 4, 2010. The transmittal letter that was turned
over to the MRO was already stamped "released" by the Office of the Executive Secretary,
but the date and time as to when it was actually received were unusually left blank.

Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MR0.55

The possession of the original appointment paper is not indispensable to authorize an

appointee to assume office. If it were indispensable, then a loss of the original appointment
paper, which could be brought about by negligence, accident, fraud, fire or theft, corresponds
to a loss of the office.56 However, in case of loss of the original appointment paper, the
appointment must be evidenced by a certified true copy issued by the proper office, in this
case the MRO. Vacant Position

An appointment can be made only to a vacant office. An appointment cannot be made to an

occupied office. The incumbent must first be legally removed, or his appointment validly
terminated, before one could be validly installed to succeed him.57

To illustrate: in Lacson v. Romero,58 Antonio Lacson (Lacson) occupied the post of provincial
fiscal of Negros Oriental. He was later nominated and confirmed as provincial fiscal of Tarlac.
The President nominated and the Commission on Appointments confirmed Honorio Romero
(Romero) as provincial fiscal of Negros Oriental as Lacson's replacement. Romero took his
oath of office, but Lacson neither accepted the appointment nor assumed office as provincial
fiscal of Tarlac. This Court ruled that Lacson remained as provincial fiscal of Negros Oriental,
having declined the appointment as provincial fiscal of Tarlac. There was no vacancy to which
Romero could be legally appointed; hence, Romero's appointment as provincial fiscal
ofNegros Oriental vice Lacson was invalid.

The appointment to a government post like that of provincial fiscal to be complete involves
several steps. First, comes the nomination by the President. Then to make that nomination
valid and permanent, the Commission on Appointments of the Legislature has to confirm said
nomination. The last step is the acceptance thereof by the appointee by his assumption of
office. The first two steps, nomination and confirmation, constitute a mere offer of a post. They
are acts of the Executive and Legislative departments of the Government. But the last
necessary step to make the appointment complete and effective rests solely with the
appointee himself. He may or he may not accept the appointment or nomination. As held in
the case of Borromeo vs. Mariano, 41 Phil. 327, "there is no power in this country which can
compel a man to accept an office." Consequently, since Lacson has declined to accept his
appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he
continues as provincial fiscal of Negros Oriental and no vacancy in said office was created,
unless Lacson had been lawfully removed as such fiscal of Negros Oriental.59

Paragraph (b ), Section 1 of EO 2 considered as midnight appointments those appointments

to offices that will only be vacant on or after 11 March 2010 even though the appointments are
made prior to 11 March 2010. EO 2 remained faithful to the intent of Section 15, Article VII of
the 1987 Constitution: the outgoing President is prevented from continuing to rule the country
indirectly after the end of his term.

Acceptance by the Qualified Appointee

Acceptance is indispensable to complete an appointment. Assuming office and taking the

oath amount to acceptance of the appointment.60 An oath of office is a qualifying requirement
for a public office, a prerequisite to the full investiture of the office.61

Javier v. Reyes62 is instructive in showing how acceptance is indispensable to complete an

appointment. On 7 November 1967, petitioner Isidro M. Javier (Javier) was appointed by then
Mayor Victorino B. Aldaba as the Chief of Police of Malolos, Bulacan. The Municipal Council
confirmed and approved Javier's appointment on the same date. Javier took his oath of office
on 8 November 1967, and subsequently discharged the rights, prerogatives, and duties of the
office. On 3 January 1968, while the approval of Javier's appointment was pending with the
CSC, respondent Purificacion C. Reyes (Reyes), as the new mayor of Malolos, sent to the .
CSC a letter to recall Javier's appointment. Reyes also designated Police Lt. Romualdo F.
Clemente as Officer-in-Charge of the police department. The CSC approved Javier's
appointment as permanent on 2 May 1968, and even directed Reyes to reinstate Javier.
Reyes, on the other hand, pointed to the appointment of Bayani Bernardo as Chief of Police of
Malolos, Bulacan on 4 September 1967. This Court ruled that Javier's appointment prevailed
over that of Bernardo. It cannot be said that Bernardo accepted his appointment because he
never assumed office or took his oath.

Excluding the act of acceptance from the appointment process leads us to the very evil which
we seek to avoid (i.e., antedating of appointments). Excluding the act of acceptance will only
provide more occasions to honor the Constitutional provision in the breach. The inclusion of
acceptance by the appointee as an integral part of the entire appointment process prevents
the abuse of the Presidential power to appoint. It is relatively easy to antedate appointment
papers and make it appear that they were issued prior to the appointment ban, but it is more
difficult to simulate the entire appointment process up until acceptance by the appointee.

Petitioners have failed to show compliance with all four elements of a valid appointment. They
cannot prove with certainty that their appointment papers were transmitted before the
appointment ban took effect. On the other hand, petitioners admit that they took their oaths of
office during the appointment ban.

Petitioners have failed to raise any valid ground for the Court to declare EO 2, or any part of it,
unconstitutional. Consequently, EO 2 remains valid and constitutional.

WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and 212030 are DENIED, and the
petition in G.R. No. 209138 is DISMISSED. The appointments of petitioners Atty. Cheloy E.
Velicaria-Garafil (G.R. No. 203372), Atty. Dindo G. Venturanza (G.R. No. 206290), Irma A.
Villanueva, and Francisca B. Rosquita (G.R. No. 209138), and Atty. Eddie U. Tamondong
(G.R. No. 212030) are declared VOID. We DECLARE that Executive Order No. 2 dated 30
July 2010 is VALID and CONSTITUTIONAL.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

I join the dissent of Justice Brion

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE
Associate Justice CASTRO
Associate Justice

See: Concurring & Dissenting Opinion

DIOSDADO M. PERALTA*
ARTURO D. BRION
Associate Justice
Associate Justice

I join the dissent of J. Brion

MARIANO C. DEL CASTILLO
LUCAS P. BERSAMIN
Associate Justice
Associate Justice

I join J. Brion in his dissent

MARTIN S. VILLARAMA, JR.
JOSE PORTUGAL PEREZ
Associate Justice
Associate Justice

I join the dissent of Brion

BIENVENIDO L. REYES
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice

ESTELA M. PERLAS-BERNABE MARVIC M.V.F LEONEN*

Associate Justice Associate Justice

(no part)
FRANCIS H. JARDELEZA**
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court.
MARIA LOURDES P.A. SERENO
Chief Justice

Footnotes

* On official leave.

** No part.

1
Under Rule 45 of the Rules of Court. .

2
Rollo (G.R. No. 203372), pp. 45-67. Penned by Associate Justice Noel G. Tijam, with
Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.

3
Under Rule 45 of the Rules of Court.

4Rollo (G.R. No. 206290), pp. 10-40. Penned by Associate Justice Noel G. Tijam, with
Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.

5Id. at 42-47. Penned by Associate Justice Noel G. Tijam, with Associate Justices Romeo F.
Barza and Edwin D. Sorongon concurring.

6 Under Rule 65 of the Rules of Court.

7Rollo (G.R. No. 209138), pp. 38-60. Penned by Associate Justice Noel G. Tijam, with
Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.

8The following cases were consolidated in the CA: CA-G.R. SP No. 123662 (Atty.
Velicaria-Garafil), CA-G.R. SP No. 123663 (Bai Omera D. Dianalan-Lucman), and CA-G.R.
SP No. 123664 (Atty. Tamondong).

9
Under Rule 45 of the Rules of Court.

10
Rollo (G.R. No. 212030), pp. 30-53. Penned by Associate Justice Noel G. Tijam, with
Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.

Id. at 59-63. Penned by Associate Justice Noel G. Tijam, with Associate Justices Romeo F.
11

Barza and Edwin D. Sorongon concurring.

12
In this Resolution, the following were listed as petitioners-intervenors: Atty. Jose Sonny G.
Matula, member of the Social Security Commission and National Vice President of Federation
of Free Workers; Ronnie M. Nismal, Alvin R. Gonzales, Jome) B. General, Alfredo E.
Maranan, Exequiel V. Bacarro, and Juanito S. Facundo, Board Members, union officers, or
members of the Federation of Free Workers.

13 Rollo (G.R. No. 203372), p. 99.

14
Rollo (G.R. No. 206290), p. 115.

15
Id. at 121.
16 Id. at 118.

17 Id. at 119.

18 Id. at 120.

19
Rollo (G.R. No. 209138), p. 25.

20
Id. at 26.

21 Rollo (G.R. No. 212030), p. 72.

22
Id. at 13.

23 Id. at 73.

24 Id. at 13.

http://www.gov.ph/2010/07 /30/executive-order-no-2/ (accessed 15 June 2015). (Boldfacing

25

and underscoring supplied)

26
Rollo (G.R. No. 203372), pp. 19-21.

27
Rollo (G.R. No. 206290), pp. 55-57.

G.R. No. 192991 was titled "Atty. Jose Arturo Cagampang De Castro, J.D., in his capacity
28

as Assistant Secretary, Department of Justice v. Office of the President, represented by

Executive Secretary Paquito N. Ochoa, Jr."

29 Rollo (G.R. No. 209138), p. 5.

30
Rollo (G.R. No. 212030), p. 13.

31G.R. No. 192987, Eddie U. Tamondong v. Executive Secretary Paquito N. Ochoa, Jr.,; G.R.
No. 193327, Atty. Cheloy E. Velicaria-Garafil v. Office of the President, represented by Hon.
Executive Secretary Paquito N. Ochoa, Jr., and Solicitor General Jose Anselmo L. Cadiz; G.R.
No. 193519, Bai Omera D. Dianalan-Lucman v. Executive Secretary Paquito N. Ochoa, Jr.;
G.R. No. 193867, Atty. Dindo G. Venturanza, as City Prosecutor a/Quezon City v. Office of
the President, represented by President of the Republic of the Philippines Benigno Simeon C.
Aquino, Executive Secretary Paquito N. Ochoa, Jr., et al.; G.R. No. 194135, Manuel D. Anda!
v. Paquito N. Ochoa, Jr., as Executive Secretary and Junia M. Ragrario; G.R. No. 194398,
Atty. Charita Planas v. Executive Secretary Paquito N. Ochoa, Jr., Tourism Secretary Alberto
A. Lim and Atty. Apolonia B. Anota, Jr.

32
Intervenors were: Dr. Ronald L. Adamat, in his capacity as Commissioner, National
Commission on Indigenous Peoples; Angelita De Jesus-Cruz, in her capacity as Director,
Subic Bay Metropolitan Authority; Atty. Jose Sonny G. Matula, Member of the Social Security
Commission National Vice President of Federation of Free Workers; Ronnie M. Nismal, Alvin
R. Gonzales, Jomel B. General, Alfredo E. Maranan, Exequiel V. Bacarro, and Juanito S.
Facundo, as Board Members, union officers or members of the Federation of Free Workers;
Atty. Noel K. Felongco in his capacity as Commissioner of the National Commission on
Indigenous Peoples; Irma A. Villanueva, in her capacity as Administrator for Visayas, Board of
Administrators of the Cooperative Development Authority; and Francisca B. Rosquita, in her
capacity as Commissioner of the National Commission on Indigenous Peoples.

33
Rollo (G.R. No. 203372), p. 80.

34
544 Phil. 525, 5;31 (2007), citing Davide v. Roces, 160-A Phil. 430 (1975).

35 Rollo (G.R. No. 203372), p. 66.

36 Supra note 34.

37
Rollo (G.R. No. 206290), p. 39.

38
Rollo (G.R. No. 209138), p. 60.

39 Rollo (G.R. No. 212030), p. 52.

See Rule 45, Section 2. Villanueva and Rosquita only had until 2 October 2013 to file their
40

appeal. They filed their petition on 7 October 2013.

41 Dissenting Opinion of Justice Arturo Brion, p. 43.

42
No. L-19313, 19 January 1962, 4 SCRA I.

43
Id. at 10-11.

44 http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/24/51487 (accessed 15 June 2015).

45Dissent, pp. 26-27, citing Bermudez v. Executive Secretary Torres, 370 Phil. 769, 776 (1999)
citing Apari v. Court of Appeals, 212 Phil. 215, 222-223 (1984).

46 Dissent, p. 37.

47
Separate Concurring Opinion of Justice Antonio T. Carpio in Re: Seniority Among the Four
(4) Most Recent Appointments to the Position of Associate Justices of the Court of Appeals,
646 Phil. 1, 17 (2010), citing Lacson v. Romero, 84 Phil. 740 (1949); Javier v. Reyes, 252 Phil.
369 (1989); Garces v. Court of Appeals, 328 Phil. 403 (1996); and Bermudez v. Executive
Secretary Torres, 370 Phil. 769 (1999).

See Section 16, Chapter 5, Title I, Book III, Executive Order No. 292, Administrative Code of
48

1987.

49 See Bermudez v. Executive Secretary Torres, 370 Phil. 769 (1999).

Flores v. Drilon, G.R. No. 104732, 22 June 1993, 223 SCRA 568, 579-580. Citations
50

omitted.

51 Rollo (G.R. No. 206290), pp. 526-527.

52 Id. at 527.

53 Id. at 455-471.

54 Id. at 460-466.

Judicial Affidavit of Ellenita G. Gatbunton, Division Chief of File Maintenance and Retrieval
55

Division of the Malacaang Records Office. Id. at 410-412, 416-417.

56
See Marbury v. Madison, 5 U.S. 137 (1803).

57
See Garces v. Court of Appeals, 328 Phil. 403 (1996).

58 84 Phil. 740 (1949).

59 Id. at 745.

60
See Javier v. Reyes, 252 Phil. 369 ( 1989). See also Mitra v. Subido, 128 Phil. 128 (1967).

Chavez v. Ronidel, 607 Phil. 76 (2009), citing Mendoza v. Laxina, Sr., 453 Phil. 1013,
61

1026-1027 (2003); Lecaroz v. Sandiganbayan, 364 Phil. 890, 904 (1999).

62
252 Phil. 369 (1989).
 EN BANC

AQUILINO Q. PIMENTEL, JR., G.R. No. 164978

EDGARDO J. ANGARA,
JUAN PONCE ENRILE, Present:
LUISA P. EJERCITO-ESTRADA, Davide, Jr., C.J.,
JINGGOY E. ESTRADA, Puno,
PANFILO M. LACSON, Panganiban,
ALFREDO S. LIM, Quisumbing,
JAMBY A.S. MADRIGAL, and Ynares-Santiago,
SERGIO R. OSMEA III, Sandoval-Gutierrez,
Petitioners, Carpio,
Austria-Martinez,
- versus - Corona,
Carpio Morales,
EXEC. SECRETARY EDUARDO Callejo, Sr.,
R. ERMITA, FLORENCIO B. ABAD, Azcuna,
AVELINO J. CRUZ, JR., Tinga,
MICHAEL T. DEFENSOR, Chico-Nazario, and
JOSEPH H. DURANO, Garcia, JJ.
RAUL M. GONZALEZ,
ALBERTO G. ROMULO,
RENE C. VILLA, and Promulgated:
ARTHUR C. YAP,
Respondents. October 13, 2005
x-----------------------------------------------------x

DECISION
CARPIO, J.:

The Case
 This is a petition for certiorari and prohibition[1] with a prayer for the
issuance of a writ of preliminary injunction to declare unconstitutional the
appointments issued by President Gloria Macapagal-Arroyo (President
Arroyo) through Executive Secretary Eduardo R. Ermita (Secretary Ermita)
to Florencio B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H.
Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C.
Yap (respondents) as acting secretaries of their respective departments. The
petition also seeks to prohibit respondents from performing the duties of
department secretaries.

Antecedent Facts

The Senate and the House of Representatives (Congress) commenced

their regular session on 26 July 2004. The Commission on Appointments,
composed of Senators and Representatives, was constituted on 25 August
2004.

Meanwhile, President Arroyo issued appointments[2] to respondents as

acting secretaries of their respective departments.

Appointee Department Date of Appointment

Arthur C. Yap Agriculture 15 August 2004
Alberto G. Romulo Foreign Affairs 23 August 2004
Raul M. Gonzalez Justice 23 August 2004
Florencio B. Abad Education 23 August 2004
Avelino J. Cruz, Jr. National Defense 23 August 2004
Rene C. Villa Agrarian Reform 23 August 2004
Joseph H. Durano Tourism 23 August 2004
Michael T. Defensor Environment and Natural Resources 23 August 2004
The appointment papers are uniformly worded as follows:

Sir:

Pursuant to the provisions of existing laws, you are hereby

appointed ACTING SECRETARY, DEPARTMENT OF (appropriate
department) vice (name of person replaced).

By virtue hereof, you may qualify and enter upon the performance
of the duties and functions of the office, furnishing this Office and the
Civil Service Commission with copies of your Oath of Office.

(signed)
Gloria Arroyo

Respondents took their oath of office and assumed duties as acting

secretaries.

On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator Pimentel),

Edgardo J. Angara (Senator Angara), Juan Ponce Enrile (Senator Enrile),
Luisa P. Ejercito-Estrada (Senator Ejercito-Estrada), Jinggoy E. Estrada
(Senator Estrada), Panfilo M. Lacson (Senator Lacson), Alfredo S. Lim
(Senator Lim), Jamby A.S. Madrigal (Senator Madrigal), and Sergio R.
Osmea, III (Senator Osmea) (petitioners) filed the present petition as
Senators of the Republic of the Philippines.

Congress adjourned on 22 September 2004. On 23 September 2004,

President Arroyo issued ad interim appointments[3] to respondents as
secretaries of the departments to which they were previously appointed in an
acting capacity. The appointment papers are uniformly worded as follows:
Sir:

Pursuant to the provisions of existing laws, you are hereby

appointed SECRETARY [AD INTERIM], DEPARTMENT OF
(appropriate department).

By virtue hereof, you may qualify and enter upon the performance
of the duties and functions of the office, furnishing this Office and the
Civil Service Commission with copies of your oath of office.

(signed)
Gloria Arroyo

Issue

The petition questions the constitutionality of President Arroyos

appointment of respondents as acting secretaries without the consent of the
Commission on Appointments while Congress is in session.

The Courts Ruling

The petition has no merit.

Preliminary Matters

On the Mootness of the Petition

The Solicitor General argues that the petition is moot because President
Arroyo had extended to respondents ad interim appointments on 23
September 2004 immediately after the recess of Congress.

As a rule, the writ of prohibition will not lie to enjoin acts already
done.[4] However, as an exception to the rule on mootness, courts will decide
a question otherwise moot if it is capable of repetition yet evading review.[5]
In the present case, the mootness of the petition does not bar its resolution.
The question of the constitutionality of the Presidents appointment of
department secretaries in an acting capacity while Congress is in session will
arise in every such appointment.

On the Nature of the Power to Appoint

The power to appoint is essentially executive in nature, and the legislature

may not interfere with the exercise of this executive power except in those
instances when the Constitution expressly allows it to
interfere.[6] Limitations on the executive power to appoint are construed
strictly against the legislature.[7] The scope of the legislatures interference in
the executives power to appoint is limited to the power to prescribe the
qualifications to an appointive office. Congress cannot appoint a person to
an office in the guise of prescribing qualifications to that office. Neither may
Congress impose on the President the duty to appoint any particular person
to an office.[8]
However, even if the Commission on Appointments is composed of
members of Congress, the exercise of its powers is executive and not
legislative. The Commission on Appointments does not legislate when it
exercises its power to give or withhold consent to presidential appointments.
Thus:
xxx The Commission on Appointments is a creature of the Constitution.
Although its membership is confined to members of Congress, said
Commission is independent of Congress. The powers of the Commission
do not come from Congress, but emanate directly from the Constitution.
Hence, it is not an agent of Congress. In fact, the functions of the
Commissioner are purely executive in nature. xxx[9]

On Petitioners Standing

The Solicitor General states that the present petition is a quo

warranto proceeding because, with the exception of Secretary Ermita,
petitioners effectively seek to oust respondents for unlawfully exercising the
powers of department secretaries. The Solicitor General further states that
petitioners may not claim standing as Senators because no power of the
Commission on Appointments has been infringed upon or violated by the
President. xxx If at all, the Commission on Appointments as a body (rather
than individual members of the Congress) may possess standing in this
case.[10]

Petitioners, on the other hand, state that the Court can exercise
its certiorari jurisdiction over unconstitutional acts of the
President.[11] Petitioners further contend that they possess standing because
President Arroyos appointment of department secretaries in an acting
capacity while Congress is in session impairs the powers of Congress.
Petitioners cite Sanlakas v. Executive Secretary[12] as basis, thus:
To the extent that the powers of Congress are impaired, so is the
power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution.

An act of the Executive which injures the institution of Congress

causes a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.

Considering the independence of the Commission on Appointments from

Congress, it is error for petitioners to claim standing in the present case as
members of Congress. President Arroyos issuance of acting appointments
while Congress is in session impairs no power of Congress. Among the
petitioners, only the following are members of the Commission on
Appointments of the 13th Congress: Senator Enrile as Minority Floor Leader,
Senator Lacson as Assistant Minority Floor Leader, and Senator Angara,
Senator Ejercito-Estrada, and Senator Osmea as members.
 Thus, on the impairment of the prerogatives of members of the
Commission on Appointments, only Senators Enrile, Lacson, Angara,
Ejercito-Estrada, and Osmea have standing in the present petition. This is in
contrast to Senators Pimentel, Estrada, Lim, and Madrigal, who, though
vigilant in protecting their perceived prerogatives as members of Congress,
possess no standing in the present petition.

The Constitutionality of President Arroyos Issuance

of Appointments to Respondents as Acting Secretaries

Petitioners contend that President Arroyo should not have appointed

respondents as acting secretaries because in case of a vacancy in the Office
of a Secretary, it is only an Undersecretary who can be designated as Acting
Secretary.[13] Petitioners base their argument on Section 10, Chapter 2, Book
IV of Executive Order No. 292 (EO 292),[14]which enumerates the powers
and duties of the undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The
Undersecretary shall:

xxx

(5) Temporarily discharge the duties of the Secretary in the latters

absence or inability to discharge his duties for any cause or in case of
vacancy of the said office, unless otherwise provided by law. Where there
are more than one Undersecretary, the Secretary shall allocate the
foregoing powers and duties among them. The President shall likewise
make the temporary designation of Acting Secretary from among them;
and
 xxx

Petitioners further assert that while Congress is in session, there can be no

appointments, whether regular or acting, to a vacant position of an office
needing confirmation by the Commission on Appointments, without first
having obtained its consent.[15]

In sharp contrast, respondents maintain that the President can issue

appointments in an acting capacity to department secretaries without the
consent of the Commission on Appointments even while Congress is in
session. Respondents point to Section 16, Article VII of the 1987
Constitution. Section 16 reads:
SEC. 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during

the recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the Congress.
 Respondents also rely on EO 292, which devotes a chapter to the
Presidents power of appointment. Sections 16 and 17, Chapter 5, Title I,
Book III of EO 292 read:
SEC. 16. Power of Appointment. The President shall exercise the
power to appoint such officials as provided for in the Constitution and
laws.

SEC. 17. Power to Issue Temporary Designation. (1) The

President may temporarily designate an officer already in the
government service or any other competent person to perform the
functions of an office in the executive branch, appointment to which is
vested in him by law, when: (a) the officer regularly appointed to the
office is unable to perform his duties by reason of illness, absence or
any other cause; or (b) there exists a vacancy[.]

(2) The person designated shall receive the compensation attached

to the position, unless he is already in the government service in which
case he shall receive only such additional compensation as, with his
existing salary, shall not exceed the salary authorized by law for the
position filled. The compensation hereby authorized shall be paid out of
the funds appropriated for the office or agency concerned.
(3) In no case shall a temporary designation exceed one (1)
year. (Emphasis supplied)

Petitioners and respondents maintain two diametrically opposed lines of

thought. Petitioners assert that the President cannot issue appointments in an
acting capacity to department secretaries while Congress is in session
because the law does not give the President such power. In contrast,
respondents insist that the President can issue such appointments because no
law prohibits such appointments.
The essence of an appointment in an acting capacity is its temporary nature.
It is a stop-gap measure intended to fill an office for a limited time until the
appointment of a permanent occupant to the office.[16] In case of vacancy in
an office occupied by an alter ego of the President, such as the office of a
department secretary, the President must necessarily appoint an alter ego of
her choice as acting secretary before the permanent appointee of her choice
could assume office.

Congress, through a law, cannot impose on the President the

obligation to appoint automatically the undersecretary as her temporary alter
ego. An alter ego, whether temporary or permanent, holds a position of great
trust and confidence. Congress, in the guise of prescribing qualifications to
an office, cannot impose on the President who heralter ego should be.

The office of a department secretary may become vacant while

Congress is in session. Since a department secretary is the alter ego of the
President, the acting appointee to the office must necessarily have the
Presidents confidence. Thus, by the very nature of the office of a department
secretary, the President must appoint in an acting capacity a person of her
choice even while Congress is in session. That person may or may not be the
permanent appointee, but practical reasons may make it expedient that the
acting appointee will also be the permanent appointee.
 The law expressly allows the President to make such acting
appointment. Section 17, Chapter 5, Title I, Book III of EO 292 states that
[t]he President may temporarily designate an officer already in the
government service or any other competent person to perform the
functions of an office in the executive branch. Thus, the President may even
appoint in an acting capacity a person not yet in the government service, as
long as the President deems that person competent.

Petitioners assert that Section 17 does not apply to appointments vested in

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

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

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

In distinguishing ad interim appointments from appointments in an

acting capacity, a noted textbook writer on constitutional law has observed:
 Ad-interim appointments must be distinguished from appointments
in an acting capacity. Both of them are effective upon acceptance. But
ad-interim appointments are extended only during a recess of Congress,
whereas acting appointments may be extended any time there is a vacancy.
Moreover ad-interim appointments are submitted to the Commission on
Appointments for confirmation or rejection; acting appointments are not
submitted to the Commission on Appointments. Acting appointments are a
way of temporarily filling important offices but, if abused, they can also be
a way of circumventing the need for confirmation by the Commission on
Appointments.[18]

However, we find no abuse in the present case. The absence of abuse is

readily apparent from President Arroyos issuance of ad
interim appointments to respondents immediatelyupon the recess of
Congress, way before the lapse of one year.

WHEREFORE, we DISMISS the present petition for certiorari and

prohibition.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice
 REYNATO S. PUNO ARTEMIO V. PANGANIBAN
Associate Justice Associate Justice

LEONARDO A. QUISUMBING CONSUELO

Associate Justice YNARES-SANTIAGO
Associate Justice

ANGELINA MA. ALICIA

SANDOVAL-GUTIERREZ AUSTRIA-MARTINEZ
Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO

Associate Justice MORALES
Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CANCIO C. GARCIA
 Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified

that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR.

Chief Justice

[1]
Under Rule 65 of the Rules of Court.
[2] Rollo, pp. 21-28.
[3]
Rollo, pp. 45-60.

[4]
Tolentino v. Commission on Elections, G.R. No. 148334, 21 January 2004, 420 SCRA 438 citing Gil v.
Benipayo, G.R. No. 148179, 26 June 2001 (minute resolution).
[5]
Tolentino v. Commission on Elections, G.R. No. 148334, 21 January 2004, 420 SCRA 438 citing Chief
Supt. Acop v. Secretary Guingona, Jr., 433 Phil. 62 (2002); Viola v. Hon. Alunan III, 343 Phil. 184
(1997); Alunan III v. Mirasol, 342 Phil. 467 (1997).
[6]
See JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 768 (1996).
[7]
See Sarmiento III v. Mison, No. L-79974, 17 December 1987, 156 SCRA 549.
[8]
See Manalang v. Quitoriano, et al., 94 Phil. 903 (1954); Flores v. Drilon, G.R. No. 104732, 22 June 1993,
223 SCRA 568.
[9]
Cunanan v. Tan, Jr., G.R. No. L-19721, 10 May 1962, 5 SCRA 1. But see Justice Concepcions
Concurring Opinion in Guevara v. Inocentes, 123 Phil. 201, 211 (1966).

[10]
Rollo, p. 38.
[11]
Ibid., p. 65.
[12]
G.R. No. 159085, 3 February 2004, 421 SCRA 656 citing Philippine Constitution Association v.
Enriquez, G.R. No. 113105, 19 August 1994, 235 SCRA 506.
[13]
Rollo, p. 14.
[14]
Also known as the Administrative Code of 1987.
[15]
Rollo, p. 12.

[16]
See Marohombsar v. Alonto, Jr., G.R. No. 93711, 25 February 1991, 194 SCRA 390.
[17]
Article 8, Civil Code. See National Amnesty Commission v. Commission on Audit, G.R. No. 156982, 8
September 2004, 437 SCRA 655.
[18]
JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 772 (1996).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 79974 December 17, 1987

ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,

vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF
CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE
DEPARTMENT OF BUDGET, respondents, COMMISSION ON
APPOINTMENTS, intervenor.

PADILLA, J.:

Once more the Court is called upon to delineate constitutional boundaries. In this petition for
prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the
Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador
Mison from performing the functions of the Office of Commissioner of the Bureau of Customs
and the respondent Guillermo Carague, as Secretary of the Department of Budget, from
effecting disbursements in payment of Mison's salaries and emoluments, on the ground that
Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by
reason of its not having been confirmed by the Commission on Appointments. The
respondents, on the other hand, maintain the constitutionality of respondent Mison's
appointment without the confirmation of the Commission on Appointments.

Because of the demands of public interest, including the need for stability in the public service,
the Court resolved to give due course to the petition and decide, setting aside the finer
procedural questions of whether prohibition is the proper remedy to test respondent Mison's
right to the Office of Commissioner of the Bureau of Customs and of whether the petitioners
have a standing to bring this suit.

By the same token, and for the same purpose, the Court allowed the Commission on
Appointments to intervene and file a petition in intervention. Comment was required of
respondents on said petition. The comment was filed, followed by intervenor's reply thereto.
The parties were also heard in oral argument on 8 December 1987.

This case assumes added significance because, at bottom line, it involves a conflict between
two (2) great departments of government, the Executive and Legislative Departments. It also
occurs early in the life of the 1987 Constitution.

The task of the Court is rendered lighter by the existence of relatively clear provisions in the
Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later,
Chief Justice) Jose Abad Santos stated 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
Presidentalone, 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.

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court has deemed it necessary and proper, in consonance with its constitutional duty, to
adjudicate promptly the issue at bar and to rule that the direct appointment of respondent
Salvador Mison as Commissioner of the Bureau of Customs (without need of submitting a
prior nomination to the Commission on Appointments and securing its confirmation) is valid
and in accordance with the President's constitutional authority to so appoint officers of the
Government as defined in Article VII, section 16 of the 1987 Constitution. The paramount
public interest and the exigencies of the public service demand that any doubts over the
validity of such appointments be resolved expeditiously in the test case at bar.

It should be noted that the Court's decision at bar does not mention nor deal with the
Manifestation of December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An
Act Providing For the Confirmation By the Commission on Appointments of All Nominations
and Appointments Made by the President of the Philippines" was passed on 23 October 1987
and was "set for perusal by the House of Representatives. " This omission has been
deliberate. The Court has resolved the case at bar on the basis of the issues joined by the
parties. The contingency of approval of the bill mentioned by intervenor clearly has no bearing
on and cannot affect retroactively the validity of the direct appointment of respondent Mison
and other appointees similarly situated as in G.R. No. 80071, "Alex G. Almario vs. Hon.
Miriam Defensor- Santiago." The Court does not deal with constitutional questions in the
abstract and without the same being properly raised before it in a justiciable case and after
thorough discussion of the various points of view that would enable it to render judgment after
mature deliberation. As stressed at the hearing of December 8, 1987, any discussion of the
reported bill and its validity or invalidity is premature and irrelevant and outside the scope of
the issues resolved in the case at bar.

MELENCIO-HERRERA, J., concurring:

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and
simply wish to add my own reading of the Constitutional provision involved.

Section 16, Article VII, of the 1987 Constitution provides:

The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution.

He shall also appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law to appoint.

The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of the departments, agencies, commissions or
boards.

The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress (Emphasis and 1st three paragraphings, supplied).

The difference in language used is significant. Under the first sentence it is clear that the
President "nominates" and with the consent of the Commission on Appointments "appoints"
the officials enumerated. The second sentence, however, significantly uses only the term
"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. Deliberately eliminated
was any reference to nomination.

Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the
second sentence from confirmation by the Commission on Appointments is, to my mind, quite
clear. So also is the fact that the term "appoint" used in said sentence was not meant to
include the three distinct acts in the appointing process, namely, nomination, appointment,
and commission. For if that were the intent, the same terminologies in the first sentence could
have been easily employed.

There should be no question either that the participation of the Commission on Appointments
in the appointment process has been deliberately decreased in the 1987 Constitution
compared to that in the 1935 Constitution, which required that all presidential appointments
be with the consent of the Commission on Appointments.

The interpretation given by the majority may, indeed, lead to some incongruous situations as
stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the
future. The task of constitutional construction is to ascertain the intent of the framers of the
Constitution and thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure
Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413). And the primary source
from which to ascertain constitutional intent is the language of the Constitution itself.

SARMIENTO, J., concurring:

I concur. It is clear from the Constitution itself that not all Presidential appointments are
subject to prior Congressional confirmation, thus:

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 recess of the Congress,
whether voluntary or compulsory, but such appointment shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress. 1

By its plain language, the Constitution has intended that only those grouped under the first
sentence are required to undergo a consenting process. This is a significant departure from
the procedure set forth in the 1935 Charter:

(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 to 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. 2

under which, as noted by the majority, "almost all presidential appointments required the
consent (confirmation) of the Commission on Appointments. 3 As far as the present Charter is
concerned, no extrinsic aid is necessary to ascertain its meaning. Had its framers intended
otherwise, that is to say, to require all Presidential appointments clearance from the Commission
on Appointments, they could have simply reenacted the Constitution's 1935 counterpart. 4

I agree that the present Constitution classifies four types of appointments that the President
may make: (1) appointments of heads of executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,
and those of other officers whose appointments are vested in him under the Constitution,
including the regular members of the Judicial and Bar Council, 5 the Chairman and
Commissioners of the Civil Service Commission, 6 the Chairman and Commissioners of the
Commission on Elections, 7 and the Chairman and Commissioners of the Commission on
Audit; 8 (2) those officers whose appointments are not otherwise provided for by law; (3) those
whom he may be authorized by law to appoint; and (4) officers lower in rank whose appointments
the Congress may vest in the President alone.

But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have
written a "rather confused Constitution" 9 with respect, to a large extent, to its other parts, and
with respect, to a certain extent, to the appointing clause itself, in the sense that it leaves us for
instance, with the incongruous situation where a consul's appointment needs confirmation
whereas that of Undersecretary of Foreign

Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to
judge. That is a question addressed to the electorate, and who, despite those "eccentricities,"
have stamped their approval on that Charter. "The Court," avers the majority, "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." 10
It must be noted that the appointment of public officials is essentially an exercise of executive
power. 11 The fact that the Constitution has provided for a Commission on Appointments does not minimize the extent of such a
power, much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms
that "[a]ppointment to office is intrinsically an executive act involving the exercise of discretion." 12 Springer v. Philippine
Islands 13 on the other hand, underscored the fact that while the legislature may create a public office, it cannot name the official to
discharge the functions appurtenant thereto. And while it may prescribe the qualifications therefor, it cannot circumscribe such
qualifications, which would unduly narrow the President's choice. In that event, it is as if it is the legislature itself conferring the
appointment.

Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive

retains his supremacy as the appointing authority. In case of doubt, the same should be
resolved in favor of the appointing power.

It is the essence of a republican form of government, like ours, that "[e]ach department of the
government has exclusive cognizance of matters within its jurisdiction." 14 But like all genuine
republican systems, no power is absolutely separate from the other. For republicanism operates on a process of checks and
balances as well, not only to guard against excesses by one branch, but more importantly, "to secure coordination in the workings
of the various departments of the government." 15 Viewed in that light, the Commission on Appointments acts as a restraint against
abuse of the appointing authority, but not as a means with which to hold the Chief Executive hostage by a possibly hostile Congress,
an unhappy lesson as the majority notes, in our history under the regime of the 1935 Constitution.

The system of checks and balances is not peculiar to the provision on appointments. The
prohibition, for instance, against the enactment of a bill of attainder operates as a bar against
legislative encroachment upon both judicial and executive domains, since the determination
of guilt and punishment of the guilty address judicial and executive functions, respective y. 16

And then, the cycle of checks and balances pervading the Constitution is a sword that cuts
both ways. In a very real sense, the power of appointment constitutes a check against
legislative authority. In Springer v. Philippine Islands, 17 we are told that "Congress may not control the law
enforcement process by retaining a power to appoint the individual who will execute the laws." 18 This is so, according to one
authority, because "the appointments clause, rather than 'merely dealing with etiquette or protocol,' seeks to preserve an executive
check upon legislative authority in the interest of avoiding an undue concentration of power in Congress. " 19

The President has sworn to "execute [the] laws. 20 For that matter, no other department of the
Government may discharge that function, least of all Congress. Accordingly, a statute conferring
upon a commission the responsibility of administering that very legislation and whose members
have been determined therein, has been held to be repugnant to the Charter. 21 Execution of the
laws, it was held, is the concern of the President, and in going about this business, he acts by
himself or through his men and women, and no other.

The President, on the other hand, cannot remove his own appointees "except for cause
provided by law." 22Parenthetically, this represents a deviation from the rule prevailing in
American jurisdiction that "the power of removal . . . [is] incident to the power of
appointment, 23 although this has since been tempered in a subsequent case, 24 where it was held
that the President may remove only "purely executive officers, 25 that is, officers holding office at
his pleasure. InIngles v. Mutuc, 26 this Court held that the President may remove incumbents of
offices confidential in nature, but we likewise made clear that in such a case, the incumbent is not
"removed" within the meaning of civil service laws, but that his term merely expires.

It is to be observed, indeed, that the Commission on Appointments, as constituted under the

1987 Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall
act on all appointments submitted to it within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to either consent or not consent to the
appointments preferred before it within the prescribed period results in a de facto confirmation
thereof
Certainly, our founding fathers have fashioned a Constitution where the boundaries of power
are blurred by the predominance of checks and counterchecks, yet amid such a rubble of
competing powers emerges a structure whose parts are at times jealous of each other, but
which are ultimately necessary in assuring a dynamic, but stable, society. As Mr. Justice
Holmes had so elegantly articulated:

xxx xxx xxx

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. ... When we come to the fundamental distinctions it is still more
obvious that they must be received with a certain latitude or our government could not go on.

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. 28

xxx xxx xxx

We are furthermore told:

xxx xxx xxx

... (I)t will be vital not to forget that all of these "checks and counterpoises, which Newton
might readily have recognized as suggestive of the mechanism of the heavens," (W. Wilson,
Constitutional Government in the United States 56 (1908)] can represent only the scaffolding
of a far more subtle "vehicle of life (Id. at 192: "The Constitution cannot be regarded as a mere
legal document, to be read as a will or a contract would be. It must, of the necessity of the
case, be a vehicle of life.") The great difficulty of any theory less rich, Woodrow Wilson once
warned, "is that government is not a machine, but a living thing. It falls, not under the theory of
the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It
is . . . shaped to its functions by the sheer pressure of life. No living thing can have its organs
offset against each other as checks, and five." (Id. at 56.) Yet because no complex society
can have its centers of power not "offset against each other as checks," and resist tyranny,
the Model of Separated and Divided Powers offers continuing testimony to the undying
dilemmas of progress and justice. 29

xxx xxx xxx

As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately
denied the legislature (the National Assembly under the 1971 draft Constitution) the power to
check executive appointments, and hence, granted the President absolute appointing
power. 30 As a delegate to, and Vice-President of, the ill-fated 1971 Constitutional Convention, and
more so as the presiding officer of most of its plenary session, I am aware that the Convention did
not provide for a commission on appointments on the theory that the Prime Minister, the head of
the Government and the sole appointing power, was himself a member of parliament. For this
reason, there was no necessity for a separate body to scrutinize his appointees. But should such
appointees forfeit the confidence of the assembly, they are, by tradition, required to resign, unless
they should otherwise have been removed by the Prime Minister. 31 In effect, it is parliament itself
that "approves" such appointments. Unfortunately, supervening events forestalled our
parliamentary experiment, and beginning with the 1976 amendments and some 140 or so
amendments thereafter, we had reverted to the presidential form, 32 without provisions for a
commission on appointments.

In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of
the present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a
mere safeguard against abuse with respect to those appointments. It does not accord
Congress any more than the power to check, but not to deny, the Chief Executive's appointing
power or to supplant his appointees with its own. It is but an exception to the rule. In limiting
the Commission's scope of authority, compared to that under the 1935 Constitution, I believe
that the 1987 Constitution has simply recognized the reality of that exception.

GUTIERREZ, JR., J., dissenting:

I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law
of the land, should never have any of its provisions interpreted in a manner that results in
absurd or irrational consequences.

The Commission on Appointments is an important constitutional body which helps give fuller
expression to the principles inherent in our presidential system of government. Its functions
cannot be made innocuous or unreasonably diminished to the confirmation of a limited
number of appointees. In the same manner that the President shares in the enactment of laws
which govern the nation, the legislature, through its Commission on Appointments, gives
assurance that only those who can pass the scrutiny of both the President and Congress will
help run the country as officers holding high appointive positions. The third sentence of the
first paragraph " ... 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." specifies only "officers lower in rank" as those who may, by law,
be appointed by the President alone. If as expounded in the majority opinion, only the limited
number of officers in the first sentence of Section 16 require confirmation, the clear intent of
the third sentence is lost. In fact both the second and third sentences become meaningless or
superfluous. Superfluity is not to be read into such an important part of the Constitution.

I agree with the intervenor that all provisions of the Constitution on appointments must be
read together. In providing for the appointment of members of the Supreme Court and judges
of lower courts (Section 9, Article VIII), the Ombudsman and his deputies (Section 9, Article
XI), the Vice President as a member of cabinet (Section 3, Article VII) and, of course, those
who by law the President alone may appoint, the Constitution clearly provides no need for
confirmation. This can only mean that all other appointments need confirmation. Where there
is no need for confirmation or where there is an alternative process to confirmation, the
Constitution expressly so declares. Without such a declaration, there must be confirmation.

The 1973 Constitution dispensed with confirmation by a Commission on Appointments

because the government it set up was supposed to be a parliamentary one. The Prime
Minister, as head of government, was constantly accountable to the legislature. In our
presidential system, the interpretation which Justice Cruz and myself espouse, is more
democratic and more in keeping with the system of government organized under the
Constitution.

I, therefore vote to grant the petition.

CRUZ, J., dissenting:

The view of the respondent, as adopted by the majority opinion, is briefly as follows:
Confirmation is required only for the officers mentioned in the first sentence of Section 16, to
wit: (1) the heads of the executive departments; (2) ambassadors, other public ministers and
consuls; (3) officers of the armed forces from the rank of colonel or naval captain; and (4)
other officers whose appointments are vested in the President in the Constitution. No
confirmation is required under the second sentence for (1) all other officers whose
appointments are not otherwise provided for by law, and (2) those whom the President may
be authorized by law to appoint. Neither is confirmation required by the third sentence for
those other officers lower in rank whose appointment is vested by law in the President alone.

Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his
department, does not have to be confirmed by the Commission on Appointments, but the
ordinary consul, who is under his jurisdiction, must be confirmed. The colonel is by any
standard lower in rank than the Chairman of the Commission on Human Rights, which was
created by the Constitution; yet the former is subject to confirmation but the latter is not
because he does not come under the first sentence. The Special Prosecutor, whose
appointment is not vested by the Constitution in the President, is not subject to confirmation
under the first sentence, and neither are the Governor of the Central Bank and the members
of the Monetary Board because they fall under the second sentence as interpreted by the
majority opinion. Yet in the case of the multi-sectoral members of the regional consultative
commission, whose appointment is vested by the Constitution in the President under Article X,
Section 18, their confirmation is required although their rank is decidedly lower.

I do not think these discrepancies were intended by the framers as they would lead to the
absurd consequences we should avoid in interpreting the Constitution.

There is no question that bureau directors are not required to be confirmed under the first
sentence of Section 16, but that is not the provision we ought to interpret. It is the second
sentence we must understand for a proper resolution of the issues now before us.
Significantly, although there was a long discussion of the first sentence in the Constitutional
Commission, there is none cited on the second sentence either in the Solicitor-General's
comment or in the majority opinion. We can therefore only speculate on the correct
interpretation of this provision in the light of the first and third sentences of Section 16 or by
reading this section in its totality.

The majority opinion says that the second sentence is the exception to the first sentence and
holds that the two sets of officers specified therein may be appointed by the President without
the concurrence of the Commission on Appointments. This interpretation is pregnant with
mischievous if not also ridiculous results that presumably were not envisioned by the framers.

One may wonder why it was felt necessary to include the second sentence at all, considering
the majority opinion that the enumeration in the first sentence of the officers subject to
confirmation is exclusive on the basis ofexpressio unius est exclusio alterius. If that be so, the
first sentence would have been sufficient by itself to convey the Idea that all other
appointees of the President would not need confirmation.

One may also ask why, if the officers mentioned in the second sentence do not need
confirmation, it was still felt necessary to provide in the third sentence that the appointment of
the other officers lower in rank will also not need confirmation as long as their appointment is
vested by law in the President alone. The third sentence would appear to be superfluous, too,
again in view of the first sentence.

More to the point, what will follow if Congress does not see fit to vest in the President alone
the appointment of those other officers lower in rank mentioned in the third sentence?
Conformably to the language thereof, these lower officers will need the confirmation of the
Commission on Appointments while, by contrast, the higher officers mentioned in the second
sentence will not.

Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in
rank than the bureau director, will have to be confirmed if the Congress does not vest their
appointment in the President alone under the third sentence. On the other hand, their superior,
the bureau director himself, will not need to be confirmed because, according to the majority
opinion, he falls not under the first sentence but the second. This is carefulness in reverse,
like checking the bridesmaids but forgetting the bride.

It must be borne in mind that one of the purposes of the Constitutional Commission was to
restrict the powers of the Presidency and so prevent the recurrence of another dictatorship.
Among the many measures taken was the restoration of the Commission on Appointments to
check the appointing power which had been much abused by President Marcos. We are now
told that even as this body was revived to limit appointments, the scope of its original authority
has itself been limited in the new Constitution. I have to disagree.

My own reading is that the second sentence is but a continuation of the Idea expressed in the
first sentence and simply mentions the other officers appointed by the President who are also
subject to confirmation. The second sentence is the later expression of the will of the framers
and so must be interpreted as complementing the rule embodied in the first sentence or, if
necessary, reversing the original intention to exempt bureau directors from confirmation. I
repeat that there were no debates on this matter as far as I know, which simply means that my
humble conjecture on the meaning of Section 16 is as arguable, at least, as the suppositions
of the majority. We read and rely on the same records. At any rate, this view is more
consistent with the general purpose of Article VII, which, to repeat, was to reduce the powers
of the Presidency.

The respondent cites the following exchange reported in page 520, Volume II, of the Record
of the Constitutional Convention:

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.

However, the records do not show what particular part of Section 16 the committee chairman
was referring to, and a reading in its entirety of this particular debate will suggest that the body
was considering the first sentence of the said section, which I reiterate is not the controversial
provision. In any case, although the excerpt shows that the proposed amendment of
Commissioner Foz was accepted by the committee, it is not reflected, curiously enough, in the
final version of Section 16 as a perusal thereof will readily reveal. Whether it was deleted later
in the session or reworded by the style committee or otherwise replaced for whatever reason
will need another surmise on this rather confused Constitution.

I need only add that the records of the Constitutional Commission are merely extrinsic aids
and are at best persuasive only and not necessarily conclusive. Interestingly, some quarters
have observed that the Congress is not prevented from adding to the list of officers subject to
confirmation by the Commission on Appointments and cite the debates on this matter in
support of this supposition. It is true enough that there was such a consensus, but it is equally
true that this thinking is not at all expressed, or even only implied, in the language of Section
16 of Article VII. Which should prevail then the provision as worded or the debates?

It is not disputed that the power of appointment is executive in nature, but there is no question
either that it is not absolute or unlimited. The rule re- established by the new Constitution is
that the power requires confirmation by the Commission on Appointments as a restraint on
presidential excesses, in line with the system of checks and balances. I submit it is the
exception to this rule, and not the rule, that should be strictly construed.

In my view, the only officers appointed by the President who are not subject to confirmation by
the Commission on Appointments are (1) the members of the judiciary and the Ombudsman
and his deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President
when he is appointed to the Cabinet; and (3) "other officers lower in rank," but only when their
appointment is vested by law in the President alone. It is clear that this enumeration does not
include the respondent Commissioner of Customs who, while not covered by the first
sentence of Section 16, comes under the second sentence thereof as I would interpret it and
so is also subject to confirmation.

I vote to grant the petition.

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court has deemed it necessary and proper, in consonance with its constitutional duty, to
adjudicate promptly the issue at bar and to rule that the direct appointment of respondent
Salvador Mison as Commissioner of the Bureau of Customs (without need of submitting a
prior nomination to the Commission on Appointments and securing its confirmation) is valid
and in accordance with the President's constitutional authority to so appoint officers of the
Government as defined in Article VII, section 16 of the 1987 Constitution. The paramount
public interest and the exigencies of the public service demand that any doubts over the
validity of such appointments be resolved expeditiously in the test case at bar.

It should be noted that the Court's decision at bar does not mention nor deal with the
Manifestation of December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An
Act Providing For the Confirmation By the Commission on Appointments of All Nominations
and Appointments Made by the President of the Philippines" was passed on 23 October 1987
and was "set for perusal by the House of Representatives. " This omission has been
deliberate. The Court has resolved the case at bar on the basis of the issues joined by the
parties. The contingency of approval of the bill mentioned by intervenor clearly has no bearing
on and cannot affect retroactively the validity of the direct appointment of respondent Mison
and other appointees similarly situated as in G.R. No. 80071, "Alex G. Almario vs. Hon.
Miriam Defensor- Santiago." The Court does not deal with constitutional questions in the
abstract and without the same being properly raised before it in a justiciable case and after
thorough discussion of the various points of view that would enable it to render judgment after
mature deliberation. As stressed at the hearing of December 8, 1987, any discussion of the
reported bill and its validity or invalidity is premature and irrelevant and outside the scope of
the issues resolved in the case at bar.

MELENCIO-HERRERA, J., concurring:

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and
simply wish to add my own reading of the Constitutional provision involved.

Section 16, Article VII, of the 1987 Constitution provides:

The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution.

He shall also appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law to appoint.

The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of the departments, agencies, commissions or
boards.

The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress (Emphasis and 1st three paragraphings, supplied).

The difference in language used is significant. Under the first sentence it is clear that the
President "nominates" and with the consent of the Commission on Appointments "appoints"
the officials enumerated. The second sentence, however, significantly uses only the term
"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. Deliberately eliminated
was any reference to nomination.

Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the
second sentence from confirmation by the Commission on Appointments is, to my mind, quite
clear. So also is the fact that the term "appoint" used in said sentence was not meant to
include the three distinct acts in the appointing process, namely, nomination, appointment,
and commission. For if that were the intent, the same terminologies in the first sentence could
have been easily employed.

There should be no question either that the participation of the Commission on Appointments
in the appointment process has been deliberately decreased in the 1987 Constitution
compared to that in the 1935 Constitution, which required that all presidential appointments
be with the consent of the Commission on Appointments.

The interpretation given by the majority may, indeed, lead to some incongruous situations as
stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the
future. The task of constitutional construction is to ascertain the intent of the framers of the
Constitution and thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure
Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413). And the primary source
from which to ascertain constitutional intent is the language of the Constitution itself.

SARMIENTO, J., concurring:

I concur. It is clear from the Constitution itself that not all Presidential appointments are
subject to prior Congressional confirmation, thus:

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 recess of the Congress,
whether voluntary or compulsory, but such appointment shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress. 1

By its plain language, the Constitution has intended that only those grouped under the first
sentence are required to undergo a consenting process. This is a significant departure from
the procedure set forth in the 1935 Charter:

(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 to 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. 2

under which, as noted by the majority, "almost all presidential appointments required the
consent (confirmation) of the Commission on Appointments. 3 As far as the present Charter is
concerned, no extrinsic aid is necessary to ascertain its meaning. Had its framers intended
otherwise, that is to say, to require all Presidential appointments clearance from the Commission
on Appointments, they could have simply reenacted the Constitution's 1935 counterpart. 4

I agree that the present Constitution classifies four types of appointments that the President
may make: (1) appointments of heads of executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,
and those of other officers whose appointments are vested in him under the Constitution,
including the regular members of the Judicial and Bar Council, 5 the Chairman and
Commissioners of the Civil Service Commission, 6 the Chairman and Commissioners of the
Commission on Elections, 7 and the Chairman and Commissioners of the Commission on
Audit; 8 (2) those officers whose appointments are not otherwise provided for by law; (3) those
whom he may be authorized by law to appoint; and (4) officers lower in rank whose appointments
the Congress may vest in the President alone.

But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have
written a "rather confused Constitution" 9 with respect, to a large extent, to its other parts, and
with respect, to a certain extent, to the appointing clause itself, in the sense that it leaves us for
instance, with the incongruous situation where a consul's appointment needs confirmation
whereas that of Undersecretary of Foreign

Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to
judge. That is a question addressed to the electorate, and who, despite those "eccentricities,"
have stamped their approval on that Charter. "The Court," avers the majority, "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." 10

It must be noted that the appointment of public officials is essentially an exercise of executive
power. 11 The fact that the Constitution has provided for a Commission on Appointments does not minimize the extent of such a
power, much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms
that "[a]ppointment to office is intrinsically an executive act involving the exercise of discretion." 12 Springer v. Philippine
Islands 13 on the other hand, underscored the fact that while the legislature may create a public office, it cannot name the official to
discharge the functions appurtenant thereto. And while it may prescribe the qualifications therefor, it cannot circumscribe such
qualifications, which would unduly narrow the President's choice. In that event, it is as if it is the legislature itself conferring the
appointment.

Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive

retains his supremacy as the appointing authority. In case of doubt, the same should be
resolved in favor of the appointing power.

It is the essence of a republican form of government, like ours, that "[e]ach department of the
government has exclusive cognizance of matters within its jurisdiction." 14 But like all genuine
republican systems, no power is absolutely separate from the other. For republicanism operates on a process of checks and
balances as well, not only to guard against excesses by one branch, but more importantly, "to secure coordination in the workings
of the various departments of the government." 15 Viewed in that light, the Commission on Appointments acts as a restraint against
abuse of the appointing authority, but not as a means with which to hold the Chief Executive hostage by a possibly hostile Congress,
an unhappy lesson as the majority notes, in our history under the regime of the 1935 Constitution.

The system of checks and balances is not peculiar to the provision on appointments. The
prohibition, for instance, against the enactment of a bill of attainder operates as a bar against
legislative encroachment upon both judicial and executive domains, since the determination
of guilt and punishment of the guilty address judicial and executive functions, respective y. 16

And then, the cycle of checks and balances pervading the Constitution is a sword that cuts
both ways. In a very real sense, the power of appointment constitutes a check against
legislative authority. In Springer v. Philippine Islands, 17 we are told that "Congress may not control the law
enforcement process by retaining a power to appoint the individual who will execute the laws." 18 This is so, according to one
authority, because "the appointments clause, rather than 'merely dealing with etiquette or protocol,' seeks to preserve an executive
check upon legislative authority in the interest of avoiding an undue concentration of power in Congress. " 19

The President has sworn to "execute [the] laws. 20 For that matter, no other department of the
Government may discharge that function, least of all Congress. Accordingly, a statute conferring
upon a commission the responsibility of administering that very legislation and whose members
have been determined therein, has been held to be repugnant to the Charter. 21 Execution of the
laws, it was held, is the concern of the President, and in going about this business, he acts by
himself or through his men and women, and no other.

The President, on the other hand, cannot remove his own appointees "except for cause
provided by law." 22Parenthetically, this represents a deviation from the rule prevailing in
American jurisdiction that "the power of removal . . . [is] incident to the power of
appointment, 23 although this has since been tempered in a subsequent case, 24 where it was held
that the President may remove only "purely executive officers, 25 that is, officers holding office at
his pleasure. InIngles v. Mutuc, 26 this Court held that the President may remove incumbents of
offices confidential in nature, but we likewise made clear that in such a case, the incumbent is not
"removed" within the meaning of civil service laws, but that his term merely expires.

It is to be observed, indeed, that the Commission on Appointments, as constituted under the

1987 Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall
act on all appointments submitted to it within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to either consent or not consent to the
appointments preferred before it within the prescribed period results in a de facto confirmation
thereof

Certainly, our founding fathers have fashioned a Constitution where the boundaries of power
are blurred by the predominance of checks and counterchecks, yet amid such a rubble of
competing powers emerges a structure whose parts are at times jealous of each other, but
which are ultimately necessary in assuring a dynamic, but stable, society. As Mr. Justice
Holmes had so elegantly articulated:

xxx xxx xxx

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. ... When we come to the fundamental distinctions it is still more
obvious that they must be received with a certain latitude or our government could not go on.

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. 28

xxx xxx xxx

We are furthermore told:

xxx xxx xxx

... (I)t will be vital not to forget that all of these "checks and counterpoises, which Newton
might readily have recognized as suggestive of the mechanism of the heavens," (W. Wilson,
Constitutional Government in the United States 56 (1908)] can represent only the scaffolding
of a far more subtle "vehicle of life (Id. at 192: "The Constitution cannot be regarded as a mere
legal document, to be read as a will or a contract would be. It must, of the necessity of the
case, be a vehicle of life.") The great difficulty of any theory less rich, Woodrow Wilson once
warned, "is that government is not a machine, but a living thing. It falls, not under the theory of
the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It
is . . . shaped to its functions by the sheer pressure of life. No living thing can have its organs
offset against each other as checks, and five." (Id. at 56.) Yet because no complex society
can have its centers of power not "offset against each other as checks," and resist tyranny,
the Model of Separated and Divided Powers offers continuing testimony to the undying
dilemmas of progress and justice. 29

xxx xxx xxx

As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately
denied the legislature (the National Assembly under the 1971 draft Constitution) the power to
check executive appointments, and hence, granted the President absolute appointing
power. 30 As a delegate to, and Vice-President of, the ill-fated 1971 Constitutional Convention, and
more so as the presiding officer of most of its plenary session, I am aware that the Convention did
not provide for a commission on appointments on the theory that the Prime Minister, the head of
the Government and the sole appointing power, was himself a member of parliament. For this
reason, there was no necessity for a separate body to scrutinize his appointees. But should such
appointees forfeit the confidence of the assembly, they are, by tradition, required to resign, unless
they should otherwise have been removed by the Prime Minister. 31 In effect, it is parliament itself
that "approves" such appointments. Unfortunately, supervening events forestalled our
parliamentary experiment, and beginning with the 1976 amendments and some 140 or so
amendments thereafter, we had reverted to the presidential form, 32 without provisions for a
commission on appointments.

In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of
the present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a
mere safeguard against abuse with respect to those appointments. It does not accord
Congress any more than the power to check, but not to deny, the Chief Executive's appointing
power or to supplant his appointees with its own. It is but an exception to the rule. In limiting
the Commission's scope of authority, compared to that under the 1935 Constitution, I believe
that the 1987 Constitution has simply recognized the reality of that exception.

GUTIERREZ, JR., J., dissenting:

I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law
of the land, should never have any of its provisions interpreted in a manner that results in
absurd or irrational consequences.

The Commission on Appointments is an important constitutional body which helps give fuller
expression to the principles inherent in our presidential system of government. Its functions
cannot be made innocuous or unreasonably diminished to the confirmation of a limited
number of appointees. In the same manner that the President shares in the enactment of laws
which govern the nation, the legislature, through its Commission on Appointments, gives
assurance that only those who can pass the scrutiny of both the President and Congress will
help run the country as officers holding high appointive positions. The third sentence of the
first paragraph " ... 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." specifies only "officers lower in rank" as those who may, by law,
be appointed by the President alone. If as expounded in the majority opinion, only the limited
number of officers in the first sentence of Section 16 require confirmation, the clear intent of
the third sentence is lost. In fact both the second and third sentences become meaningless or
superfluous. Superfluity is not to be read into such an important part of the Constitution.
I agree with the intervenor that all provisions of the Constitution on appointments must be
read together. In providing for the appointment of members of the Supreme Court and judges
of lower courts (Section 9, Article VIII), the Ombudsman and his deputies (Section 9, Article
XI), the Vice President as a member of cabinet (Section 3, Article VII) and, of course, those
who by law the President alone may appoint, the Constitution clearly provides no need for
confirmation. This can only mean that all other appointments need confirmation. Where there
is no need for confirmation or where there is an alternative process to confirmation, the
Constitution expressly so declares. Without such a declaration, there must be confirmation.

The 1973 Constitution dispensed with confirmation by a Commission on Appointments

because the government it set up was supposed to be a parliamentary one. The Prime
Minister, as head of government, was constantly accountable to the legislature. In our
presidential system, the interpretation which Justice Cruz and myself espouse, is more
democratic and more in keeping with the system of government organized under the
Constitution.

I, therefore vote to grant the petition.

CRUZ, J., dissenting:

The view of the respondent, as adopted by the majority opinion, is briefly as follows:
Confirmation is required only for the officers mentioned in the first sentence of Section 16, to
wit: (1) the heads of the executive departments; (2) ambassadors, other public ministers and
consuls; (3) officers of the armed forces from the rank of colonel or naval captain; and (4)
other officers whose appointments are vested in the President in the Constitution. No
confirmation is required under the second sentence for (1) all other officers whose
appointments are not otherwise provided for by law, and (2) those whom the President may
be authorized by law to appoint. Neither is confirmation required by the third sentence for
those other officers lower in rank whose appointment is vested by law in the President alone.

Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his
department, does not have to be confirmed by the Commission on Appointments, but the
ordinary consul, who is under his jurisdiction, must be confirmed. The colonel is by any
standard lower in rank than the Chairman of the Commission on Human Rights, which was
created by the Constitution; yet the former is subject to confirmation but the latter is not
because he does not come under the first sentence. The Special Prosecutor, whose
appointment is not vested by the Constitution in the President, is not subject to confirmation
under the first sentence, and neither are the Governor of the Central Bank and the members
of the Monetary Board because they fall under the second sentence as interpreted by the
majority opinion. Yet in the case of the multi-sectoral members of the regional consultative
commission, whose appointment is vested by the Constitution in the President under Article X,
Section 18, their confirmation is required although their rank is decidedly lower.

I do not think these discrepancies were intended by the framers as they would lead to the
absurd consequences we should avoid in interpreting the Constitution.

There is no question that bureau directors are not required to be confirmed under the first
sentence of Section 16, but that is not the provision we ought to interpret. It is the second
sentence we must understand for a proper resolution of the issues now before us.
Significantly, although there was a long discussion of the first sentence in the Constitutional
Commission, there is none cited on the second sentence either in the Solicitor-General's
comment or in the majority opinion. We can therefore only speculate on the correct
interpretation of this provision in the light of the first and third sentences of Section 16 or by
reading this section in its totality.

The majority opinion says that the second sentence is the exception to the first sentence and
holds that the two sets of officers specified therein may be appointed by the President without
the concurrence of the Commission on Appointments. This interpretation is pregnant with
mischievous if not also ridiculous results that presumably were not envisioned by the framers.

One may wonder why it was felt necessary to include the second sentence at all, considering
the majority opinion that the enumeration in the first sentence of the officers subject to
confirmation is exclusive on the basis ofexpressio unius est exclusio alterius. If that be so, the
first sentence would have been sufficient by itself to convey the Idea that all other
appointees of the President would not need confirmation.

One may also ask why, if the officers mentioned in the second sentence do not need
confirmation, it was still felt necessary to provide in the third sentence that the appointment of
the other officers lower in rank will also not need confirmation as long as their appointment is
vested by law in the President alone. The third sentence would appear to be superfluous, too,
again in view of the first sentence.

More to the point, what will follow if Congress does not see fit to vest in the President alone
the appointment of those other officers lower in rank mentioned in the third sentence?
Conformably to the language thereof, these lower officers will need the confirmation of the
Commission on Appointments while, by contrast, the higher officers mentioned in the second
sentence will not.

Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in
rank than the bureau director, will have to be confirmed if the Congress does not vest their
appointment in the President alone under the third sentence. On the other hand, their superior,
the bureau director himself, will not need to be confirmed because, according to the majority
opinion, he falls not under the first sentence but the second. This is carefulness in reverse,
like checking the bridesmaids but forgetting the bride.

It must be borne in mind that one of the purposes of the Constitutional Commission was to
restrict the powers of the Presidency and so prevent the recurrence of another dictatorship.
Among the many measures taken was the restoration of the Commission on Appointments to
check the appointing power which had been much abused by President Marcos. We are now
told that even as this body was revived to limit appointments, the scope of its original authority
has itself been limited in the new Constitution. I have to disagree.

My own reading is that the second sentence is but a continuation of the Idea expressed in the
first sentence and simply mentions the other officers appointed by the President who are also
subject to confirmation. The second sentence is the later expression of the will of the framers
and so must be interpreted as complementing the rule embodied in the first sentence or, if
necessary, reversing the original intention to exempt bureau directors from confirmation. I
repeat that there were no debates on this matter as far as I know, which simply means that my
humble conjecture on the meaning of Section 16 is as arguable, at least, as the suppositions
of the majority. We read and rely on the same records. At any rate, this view is more
consistent with the general purpose of Article VII, which, to repeat, was to reduce the powers
of the Presidency.
The respondent cites the following exchange reported in page 520, Volume II, of the Record
of the Constitutional Convention:

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.

However, the records do not show what particular part of Section 16 the committee chairman
was referring to, and a reading in its entirety of this particular debate will suggest that the body
was considering the first sentence of the said section, which I reiterate is not the controversial
provision. In any case, although the excerpt shows that the proposed amendment of
Commissioner Foz was accepted by the committee, it is not reflected, curiously enough, in the
final version of Section 16 as a perusal thereof will readily reveal. Whether it was deleted later
in the session or reworded by the style committee or otherwise replaced for whatever reason
will need another surmise on this rather confused Constitution.

I need only add that the records of the Constitutional Commission are merely extrinsic aids
and are at best persuasive only and not necessarily conclusive. Interestingly, some quarters
have observed that the Congress is not prevented from adding to the list of officers subject to
confirmation by the Commission on Appointments and cite the debates on this matter in
support of this supposition. It is true enough that there was such a consensus, but it is equally
true that this thinking is not at all expressed, or even only implied, in the language of Section
16 of Article VII. Which should prevail then the provision as worded or the debates?

It is not disputed that the power of appointment is executive in nature, but there is no question
either that it is not absolute or unlimited. The rule re- established by the new Constitution is
that the power requires confirmation by the Commission on Appointments as a restraint on
presidential excesses, in line with the system of checks and balances. I submit it is the
exception to this rule, and not the rule, that should be strictly construed.

In my view, the only officers appointed by the President who are not subject to confirmation by
the Commission on Appointments are (1) the members of the judiciary and the Ombudsman
and his deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President
when he is appointed to the Cabinet; and (3) "other officers lower in rank," but only when their
appointment is vested by law in the President alone. It is clear that this enumeration does not
include the respondent Commissioner of Customs who, while not covered by the first
sentence of Section 16, comes under the second sentence thereof as I would interpret it and
so is also subject to confirmation.

I vote to grant the petition.

Footnotes

1 66 Phil. 259, at 264.

2 The "other officers" whose appointments are vested in the President in the 1987
Constitution are:
1. Regular members of the Judicial and Bar Council (ART. VIII, Sec. 8(2);

2. Chairman and Commissioners of the Civil Service Commission (ART. IX-B, Sec. 1 (2);

3. Chairman and Commissioners of the Commission on Elections (ART. IX-C, Sec. 1(2);

4. Chairman and Commissioners of the Commission on Audit (ART. IX-D, Sec. 112); and,

5. Members of the regional consultative commission (ART. X, Sec. 18)

3 When Congress creates inferior offices and omits to provide for appointments to them, or
provides in an unconstitutional way for such appointment, the officers are within the meaning
of the clause officers of the Government whose appointments are not otherwise provided for
by law" and the power to appoint such officers devolves on the President. (USC, Const., Par,
II, p. 529, citing Op., Atty. Gen. 213.)

4 The 1935 Constitution says "inferior officers" while the 1987 Constitution states "officers
lower in rank. "

5 Example: Sen. Raul S. Manglapus was first nominated by the President for the position of
Secretary of the Department of Foreign Affairs (an executive department). After his
nomination was confirmed by the Commission on Appointments, the President appointed him
Secretary of Foreign Affairs.

6 66 Phil. 259, at 265.

7 Pp. 384-385, Vol. 11, RECORD OF THE CONSTITUTIONAL COMMISSION OF 1986.

8 Pp. 433-435, Vol. 11, RECORD OF THE 1986 CONSTITUTIONAL COMMISSION.

9 The second sentence of Sec. 16, ART. VII of the 1987 Constitution refers to what this
Decision calls the second and third groups of officers appointed by the President.

10 Pp. 514-521, Vol. 11, RECORD OF THE 1986 CON- CONSTITUTIONAL COMMISSION.

Sarmiento, J.:

1 CONST., art. VII, sec. 16.

2 CONST. (1935), art. VII, sec. 10(3).

3 Sarmiento v. Mison, G.R. No. 79974, 6.

4 As Justice Padilla further notes, Section 16, of Article VII, was originally a verbatim copy of
the 1935 provisions. Upon further deliberations of the Constitutional Commission, however,
the consensus was reached to amend the same to its present form.

5 CONST., art. VII I, sec. 8 (2).

6 Supra, art. IX (B), see. 1 (2).

7 Supra, art. IX (C), sec. 1 (2).

8 Supra, art. IX (D), sec. 1 (2).

9 Sarmiento v. Mison, supra, Cruz., J., Dissenting, 5.

10 Supra, 3.

11 Concepcion v. Paredes, 42 Phil. 599 (1921); Government v. Springer, 50 Phil. 259 (1927);
Springer v. P.I., 277 U.S. 189 (1929). The Supreme Court has been vested with the power to
"[a]ppoint all officials of the Judiciary in accordance with the Civil Service Law" [CONST., art.
VIII, sec. 5(6)] but that is by fiat of the Constitution itself. (See also supra, art. VII, sec. 16.). In
Government v. Springer, supra, we recognized the authority of the legislature to appoint its
officers but only as "an incident to the discharge of its functions." (At 278). When the
Constitution authorizes Congress to vest in the President the appointment of other officers, it
is not Congress being empowered to make the appointments; the President retains his
appointing power, through, however, a procedure established by Congress.

12 Supra, at 603.

13 Supra.

14 Angara v. Electoral Commission, 63 Phil. 139, 156 (1936).

15 Angara v. Electoral Commission, supra.

16 TRIBE, AMERICAN CONSTITUTIONAL LAW, 184-185 (1978), citing Buckley v. Valeo.

424 US 1 (1976).

17 Supra.

18 TRIBE, Id, 184.

19 Id., 184-185, citing Buckley v. Valeo, supra.

20 CONST., art. VII, sec. 5.

21 Buckley v. Valeo, supra.

22 CONST., art, IX (B), sec. 2 (3).

23 Myers v. United States, 272 US 52 (1926).

24 TRIBE, Id, at 188, citing Humphrey's Executor v. United States, 295 US 602 (1935).

25 Id., 11 No. L-20390, November 29, 1968,

26 SCRA 171 (1968).

27 CONST., art. VI, sec. 18.

28 Holmes, J, Dissenting, Springer v. Philippine Islands, supra, 210-212.

29 TRIBE, Id, 18-19; emphasis in original.

30 Sarmiento v. Mison, supra, 6.

31 CONST. (1973), art. IX, sec. 4; art. XII (B), sec. 3.

32 See Free Telephone Workers Union v. Minister of Labor and Employment, No. L-58184,
October 30, 1981,108 SCRA 757 (1981).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 86439 April 13, 1989

MARY CONCEPCION BAUTISTA, petitioner,

vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON
JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R.
MALLILLIN, respondents.

Mary Concepcion Bautista for and in her own behalf.

Christine A.Tomas Espinosa for private respondent Hesiquio R. Mallillin

PADILLA, J.:

The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the
question of which appointments by the President, under the 1987 Constitution, are to be made
with and without the review of the Commission on Appointments. The Mison case was the first
major case under the 1987 Constitution and in construing Sec. 16, Art. VII of the 1987 Constitution
which provides:

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

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

this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission
and the country's experience under the 1935 and 1973 Constitutions, held that only those
appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed
by the Commission on Appointments, namely, "the heads of the executive department,
ambassadors, other public ministers and consuls, or officers of the armed forces from the
rank of colonel or naval captain, and other officers whose appointments are vested in him in
this Constitution." All other appointments by the President are to be made without the
participation of the Commission on Appointments. Accordingly, in the Mison case, the
appointment of therein respondent Salvador M. Mison as head of the Bureau of Customs,
without the confirmation of the Commission on Appointments, was held valid and in
accordance with the Constitution.

The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of
Sec. 16, Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as
construed by this Court in appropriate cases, is the supreme law of the land. And it cannot be
over-stressed that the strength of the Constitution, with all its imperfections, lies in the respect
and obedience accorded to it by the people, especially the officials of government, who are
the subjects of its commands.

Barely a year after Mison, the Court is again confronted with a similar question, this time,
whether or not the appointment by the President of the Chairman of the Commission on
Human Rights (CHR), an "independent office" created by the 1987 Constitution, is to be made
with or without the confirmation of the Commission on Appointments (CA, for brevity). Once
more, as in Mison, the Court will resolve the issue irrespective of the parties involved in the
litigation, mindful that what really matters are the principles that will guide this Administration
and others in the years to come.

Since the position of Chairman of the Commission on Human Rights is not among the
positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation of the Commission on
Appointments, it follows that the appointment by the President of the Chairman of the (CHR),
is to be made without the review or participation of the Commission on Appointments.

To be more precise, the appointment of the Chairman and Members of the Commission on
Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen
and Members of the Civil Service Commission, the Commission on Elections and the
Commission on Audit, whose appointments are expressly vested by the Constitution in the
President with the consent of the Commission on Appointments. 2

The President appoints the Chairman and Members of the Commission on Human Rights
pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the
Commission on Appointments because they are among the officers of government "whom he
(the President) may be authorized by law to appoint." And Section 2(c), Executive Order No.
163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the
Commission on Human Rights. It provides:

(c) The Chairman and the Members of the Commission on Human Rights shall be appointed
by the President for a term of seven years without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor.

The above conclusions appear to be plainly evident and, therefore, irresistible. However, the
presence in this case of certain elements absent in the Mison case makes necessary a
closer scrutiny. The facts are therefore essential.

On 27 August 1987, the President of the Philippines designated herein petitioner Mary
Concepcion Bautista as"Acting Chairman, Commission on Human Rights." The letter of
designation reads:

27 August 1987
M a d a m:

You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN RIGHTS, to

succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes.

Very truly yours,

CORAZON C. AQUINO

HON. MARY CONCEPCION BAUTISTA 3

Realizing perhaps the need for a permanent chairman and members of the Commission on
Human Rights, befitting an independent office, as mandated by the Constitution, 4 the
President of the Philippines on 17 December 1988 extended to petitioner Bautista a permanent
appointment as Chairman of the Commission. The appointment letter is as follows:

17 December 1988

The Honorable
The Chairman
Commission on Human Rights
Pasig, Metro Manila

M a d a m:

Pursuant to the provisions of existing laws, the following are hereby appointed to the positions
indicated opposite their respective names in the Commission on Human Rights:

MARY CONCEPCION BAUTISTA Chairman

ABELARDO L. APORTADERA, JR Member
SAMUEL SORIANO Member
HESIQUIO R. MALLILLIN Member
NARCISO C. MONTEIRO Member

By virtue hereof, they may qualify and enter upon the performance of the duties of the office
furnishing this Office and the Civil Service Commission with copies of their oath of office.

Very truly yours,

CORAZON C. AQUINO 5

It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the
President that she could qualify and enter upon the performance of the duties of the office of
Chairman of the Commission on Human Rights, requiring her to furnish the office of the
President and the Civil Service Commission with copies of her oath of office.

On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan,
petitioner Bautista took her oath of office by virtue of her appointment as Chairman of the
Commission on Human Rights. The full text of the oath of office is as follows:

OATH OF OFFICE
I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal, Makati,
Metro Manila having been appointed to the position of CHAIRMAN of the Commission on
Human Rights, do solemnly swear that I will discharge to the best of my ability all the duties
and responsibilities of the office to which I have been appointed; uphold the Constitution of
the Republic of the Philippines, and obey all the laws of the land without mental reservation or
purpose of evasion.

SO HELP ME GOD.

MARY CONCEPCION BAUTISTA

SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of Our
Lord, 1988 in Manila.

MARCELO B. FERNAN

Chief Justice
Supreme Court of the Philippines 6

Immediately, after taking her oath of office as Chairman of the Commission on Human Rights,
petitioner Bautista discharged the functions and duties of the Office of Chairman of the
Commission on Human Rights which, as previously stated, she had originally held merely in
an acting capacity beginning 27 August 1987.

On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission
on Appointments requesting her to submit to the Commission certain information and
documents as required by its rules in connection with the confirmation of her appointment as
Chairman of the Commission on Human Rights. 7 On 10 January 1989, the Commission on
Appointments' Secretary again wrote petitioner Bautista requesting her presence at a meeting of
the Commission on Appointments Committee on Justice, Judicial and Bar Council and Human
Rights set for 19 January 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I,
Roxas Boulevard, Pasay City that would deliberate on her appointment as Chairman of the
Commission on Human Rights. 8

On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on

Appointments stating, for the reasons therein given, why she considered the Commission on
Appointments as having no jurisdiction to review her appointment as Chairman of the
Commission on Human Rights. The petitioner's letter to the Commission on Appointments'
Chairman reads:

January 13, 1 989

SENATE PRESIDENT JOVITO R. SALONGA

Chairman
Commission on Appointments
Senate, Manila

S i r:

We acknowledge receipt of the communication from the Commission on Appointments

requesting our appearance on January 19, 1989 for deliberation on our appointments.
We respectfully submit that the appointments of the Commission commissioners of the
Human Rights Commission are not subject to confirmation by the Commission on
Appointments.

The Constitution, in Article VII Section 16 which expressly vested on the President the
appointing power, has expressly mentioned the government officials whose appointments are
subject to the confirmation of the Commission on Appointments of Congress. The
Commissioners of the Commission on Human Rights are not included among those.

Where the confirmation of the Commission on Appointments is required, as in the case of the
Constitutional Commissions such as the Commission on Audit, Civil Service Commission and
the Commission on Elections, it was expressly provided that the nominations will be subject to
confirmation of Commission on Appointments. The exclusion again of the Commission on
Human Rights, a constitutional office, from this enumeration is a clear denial of authority to
the Commission on Appointments to review our appointments to the Commission on Human
Rights.

Furthermore, the Constitution specifically provides that this Commission is an independent

officewhich:

a. must investigate all forms of human rights violations involving civil and political rights;

b. shall monitor the government's compliance in all our treaty obligations on human rights. We
submit that, the monitoring of all agencies of government, includes even Congress itself, in
the performance of its functions which may affect human rights;

c. may call on all agencies of government for the implementation of its mandate.

The powers of the Commission on Appointments is in fact a derogation of the Chief

Executive's appointing power and therefore the grant of that authority to review a valid
exercise of the executive power can never be presumed. It must be expressly granted.

The Commission on Appointments has no jurisdiction under the Constitution to review

appointments by the President of Commissioners of the Commission on Human Rights.

In view of the foregoing considerations, as Chairman of an independent constitutional office. I

cannot submit myself to the Commission on Appointments for the purpose of confirming or
rejecting my appointment.

Very truly yours,

MARY CONCEPCION BAUTISTA

Chairman 9

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

1 February 1989

HON. CATALINO MACARAIG, JR.

Executive Secretary
Malacanang, Manila

S i r:

This refers to the ad interim appointment which Her Excellency extended to Atty. Mary
Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human
Rights.

As we conveyed to you in our letter of 25 January 1989, the Commission on Appointments,

assembled in plenary (session) on the same day, disapproved Atty. Bautista's ad
interim appointment as Chairperson of the Commission on Human Rights in view of her
refusal to submit to the jurisdiction of the Commission on Appointments.

This is to inform you that the Commission on Appointments, likewise assembled in plenary
(session) earlier today, denied Senator Mamintal A. J. Tamano's motion for reconsideration of
the disapproval of Atty. Bautista's ad interim appointment as Chairperson of the Commission
on Human Rights.

Very truly yours,

RAOUL V. VICTORINO
Secretary 11

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

1 February 1989

ATTY. MARY CONCEPCION BAUTISTA

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

Dear Atty. Bautista:

Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments, the denial
by the Commission on Appointments, assembled in plenary (session) earlier today, of
Senator Mamintal A.J. Tamano's motion for reconsideration of the disapproval of your ad
interim appointment as Chairperson of the Commission on Human Rights is respectfully
conveyed.

Thank you for your attention.

Very truly yours,

RAOUL V. VICTORINO
Secretary 12

In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news

item appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the
President had designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of
the Commission" pending the resolution of Bautista's case which had been elevated to the
Supreme Court. The news item is here quoted in full, thus

Aquino names replacement for MaryCon

President Aquino has named replacement for Presidential Commission on Human Rights
Chairman Mary Concepcion Bautista whose appointment was rejected anew by the
Congressional commission on appointments.

The President designated PCHR commissioner Hesiquio R. Mallillin as acting chairman of the
Commission pending the resolution of Bautista's case which had been elevated to the
Supreme Court.

The President's action followed after Congressional Commission on Appointments Chairman,

Senate President Jovito Salonga declared Bautista can no longer hold on to her position after
her appointment was not confirmed for the second time.

For all practical purposes, Salonga said Bautista can be accused of usurpation of authority if
she insists to stay on her office.

In effect, the President had asked Bautista to vacate her office and give way to Mallillin (Mari
Villa) 13

On 20 January 1989, or even before the respondent Commission on Appointments had acted
on her "ad interimappointment as Chairman of the Commission on Human Rights" petitioner
Bautista filed with this Court the present petition for certiorari with a prayer for the immediate
issuance of a restraining order, to declare "as unlawful and unconstitutional and without any
legal force and effect any action of the Commission on Appointments as well as of the
Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended
appointment of the petitioner as Chairman of the Commission on Human Rights, on the
ground that they have no lawful and constitutional authority to confirm and to review her
appointment." 14

The prayer for temporary restraining order was "to enjoin the respondent Commission on
Appointments not to proceed further with their deliberation and/or proceedings on the
appointment of the petitioner ... nor to enforce, implement or act on any order, resolution, etc.
issued in the course of their deliberations." 15

Respondents were required to file comment within ten (10) days. 16 On 7 February 1989,
petitioner filed an amended petition, with urgent motion for restraining order, impleading
Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent and
praying for the nullification of his appointment. The succeeding day, a supplemental urgent
ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to
exercise the functions of chairman and to refrain from demanding courtesy resignations from
officers or separating or dismissing employees of the Commission.

Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court
resolved to issue a temporary restraining order directing respondent Mallillin to cease and
desist from effecting the dismissal, courtesy resignation, i removal and reorganization and
other similar personnel actions. 17 Respondents were likewise required to comment on said
amended petition with allowance for petitioner to file a reply within two (2) days from receipt of a
copy thereof.

Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC

and Human Rights filed a comment to the amended petition on 21 February 1989. 18 Petitioner
filed her reply. 19 On 24 February 1989, respondent Mallillin filed a separate comment. 20 The Court
required petitioner to reply to respondent Mallillin's comment . 21Petitioner filed her reply. 22

In deference to the Commission on Appointments, an instrumentality of a co-ordinate and

co-equal branch of government, the Court did not issue a temporary restraining order directed
against it. However, this does not mean that the issues raised by the petition, as met by the
respondents' comments, will not be resolved in this case. The Court will not shirk from its duty
as the final arbiter of constitutional issues, in the same way that it did not in Mison.

As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista
was extended by Her Excellency, the President a permanent appointment as Chairman of the
Commission on Human Rights on 17 December 1988. Before this date, she was merely the
"Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an
appointment that was for the President solely to make, i.e., not an appointment to be
submitted for review and confirmation (or rejection) by the Commission on Appointments. This
is in accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison
which is here reiterated.

The threshold question that has really come to the fore is whether the President, subsequent
to her act of 17 December 1988, and after petitioner Bautista had qualified for the office to
which she had been appointed, by taking the oath of office and actually assuming and
discharging the functions and duties thereof, could extend another appointment to the
petitioner on 14 January 1989, an "ad interim appointment" as termed by the respondent
Commission on Appointments or any other kind of appointment to the same office of
Chairman of the Commission on Human Rights that called for confirmation by the
Commission on Appointments.

The Court, with all due respect to both the Executive and Legislative Departments of
government, and after careful deliberation, is constrained to hold and rule in the negative.
When Her Excellency, the President converted petitioner Bautista's designation as Acting
Chairman to a permanent appointment as Chairman of the Commission on Human Rights on
17 December 1988, significantly she advised Bautista (in the same appointment letter) that,
by virtue of such appointment, she could qualify and enter upon the performance of the duties
of the office (of Chairman of the Commission on Human Rights). All that remained for Bautista
to do was to reject or accept the appointment. Obviously, she accepted the appointment by
taking her oath of office before the Chief Justice of the Supreme Court, Hon. Marcelo B.
Fernan and assuming immediately thereafter the functions and duties of the Chairman of the
Commission on Human Rights. Bautista's appointment therefore on 17 December 1988 as
Chairman of the Commission on Human Rights was a completed act on the part of the
President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of
Marbury vs. Madison. 23

xxx xxx xxx

The answer to this question seems an obvious one. The appointment being the sole act of the
President, must be completely evidenced, when it is shown that he has done everything to be
performed by him.

xxx xxx xxx

Some point of time must be taken when the power of the executive over an officer, not
removable at his will must cease. That point of time must be when the constitutional power of
appointment has been exercised. And this power has been exercised when the last act,
required from the person possessing the power, has been performed. ....

xxx xxx xxx

But having once made the appointment, his (the President's) power over the office is
terminated in all cases, where by law the officer is not removable by him. The right to the
office is then in the person appointed, and he has the absolute, unconditional power of
accepting or rejecting it.

xxx xxx xxx

THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989

It is respondent Commission's submission that the President, after the appointment of 17

December 1988 extended to petitioner Bautista, decided to extend another appointment (14
January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately,
nomination) to the Commission on Appointments for confirmation. And yet, it seems obvious
enough, both in logic and in fact, that no new or further appointment could be made to a
position already filled by a previously completed appointment which had been accepted by
the appointee, through a valid qualification and assumption of its duties.

Respondent Commission vigorously contends that, granting that petitioner's appointment as

Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the
Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is
within the president's prerogative to voluntarily submit such appointment to the Commission
on Appointment for confirmation. The mischief in this contention, as the Court perceives it, lies
in the suggestion that the President (with Congress agreeing) may, from time to time move
power boundaries, in the Constitution differently from where they are placed by the
Constitution.

The Court really finds the above contention difficult of acceptance. Constitutional Law, to
begin with, is concerned with power not political convenience, wisdom, exigency, or even
necessity. Neither the Executive nor the Legislative (Commission on Appointments) can
create power where the Constitution confers none. The evident constitutional intent is to strike
a careful and delicate balance, in the matter of appointments to public office, between the
President and Congress (the latter acting through the Commission on Appointments). To tilt
one side or the other of the scale is to disrupt or alter such balance of power. In other words,
to the extent that the Constitution has blocked off certain appointments for the President to
make with the participation of the Commission on Appointments, so also has the Constitution
mandated that the President can confer no power of participation in the Commission on
Appointments over other appointments exclusively reserved for her by the Constitution. The
exercise of political options that finds no support in the Constitution cannot be sustained.

Nor can the Commission on Appointments, by the actual exercise of its constitutionally
delimited power to review presidential appointments, create power to confirm appointments
that the Constitution has reserved to the President alone. Stated differently, when the
appointment is one that the Constitution mandates is for the President to make without the
participation of the Commission on Appointments, the executive's voluntary act of submitting
such appointment to the Commission on Appointments and the latter's act of confirming or
rejecting the same, are done without or in excess of jurisdiction.

EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON

APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY
BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT
COULD BE MADE ON 14 JANUARY 1989

Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily
allow the Commission on Appointments to exercise the power of review over an appointment
otherwise solely vested by the Constitution in the President. Yet, as already noted, when the
President appointed petitioner Bautista on 17 December 1988 to the position of Chairman of
the Commission on Human Rights with the advice to her that by virtue of such appointment
(not, until confirmed by the Commission on Appointments), she could qualify and enter upon
the performance of her duties after taking her oath of office, the presidential act of
appointment to the subject position which, under the Constitution, is to be made, in the first
place, without the participation of the Commission on Appointments, was then and there a
complete and finished act, which, upon the acceptance by Bautista, as shown by her taking of
the oath of office and actual assumption of the duties of said office, installed her, indubitably
and unequivocally, as the lawful Chairman of the Commission on Human Rights for a term of
seven (7) years. There was thus no vacancy in the subject office on 14 January 1989 to which
an appointment could be validly made. In fact, there is no vacancy in said office to this day.

Nor can respondents impressively contend that the new appointment or re-appointment on 14
January 1989 was an ad interim appointment, because, under the Constitutional design, ad
interim appointments do not apply to appointments solely for the President to make, i.e.,
without the participation of the Commission on Appointments.Ad interim appointments, by
their very nature under the 1987 Constitution, extend only to appointments where the review
of the Commission on Appointments is needed. That is why ad interim appointments are to
remain valid until disapproval by the Commission on Appointments or until the next
adjournment of Congress; but appointments that are for the President solely to make, that is,
without the participation of the Commission on Appointments, can not be ad
interim appointments.

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

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

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

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

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

WHEREAS, the Constitution does not prescribe the term of office of the Chairman and
Members of the Commission on Human Rights unlike those of other Constitutional
Commissions;

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do hereby

order:

SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby amended to
read as follows:

The Chairman and Members of the Commission on Human Rights shall be appointed by the
President. Their tenure in office shall be at the pleasure of the President.

SEC. 2. This Executive Order shall take effect immediately. DONE in the City of Manila, this
30th day of June, in the year of Our Lord, nineteen hundred and eighty-seven.

(Sgd.) CORAZON C. AQUINO

President of the Philippines

By the President:

(Sgd.) JOKER P. ARROYO

Executive Secretary 24

Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25
was
issued by the President, Sec. 2(c) of which provides:

Sec. 2(c). The Chairman and the Members of the Commission on Human Rights shall be
appointed by the President for a term of seven years without reappointment. Appointments to
any vacancy shall be only for the unexpired term of the predecessor.

It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of
the Chairman and Members of the Commission on Human Rights which is seven (7) years
without reappointment the later executive order (163-A) speaks of the tenure in office of
the Chairman and Members of the Commission on Human Rights, which is "at the pleasure of
the President."
Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice)
Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated:

The distinction between "term" and "tenure" is important, for, pursuant to the Constitution, "no
officer or employee in the Civil Service may be removed or suspended except for cause, as
provided by law" (Art. XII, section 4), and this fundamental principle would be defeated if
Congress could legally make the tenure of some officials dependent upon the pleasure of the
President, by clothing the latter with blanket authority to replace a public officer before the
expiration of his term. 27

When Executive Order No. 163 was issued, the evident purpose was to comply with the
constitutional provision that "the term of office and other qualifications and disabilities of the
Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art.
XIII, 1987 Constitution).

As the term of office of the Chairman (and Members) of the Commission on Human Rights, is
seven (7) years, without reappointment, as provided by Executive Order No. 163, and
consistent with the constitutional design to give the Commission the needed independence to
perform and accomplish its functions and duties, the tenure in office of said Chairman (and
Members) cannot be later made dependent on the pleasure of the President.

Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra,
because the power of the President, sustained therein, to replace a previously appointed
vice-mayor of Roxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating
the City of Roxas) stating that the vice-mayor shall serve at the pleasure of the President, can
find no application to the Chairman of an INDEPENDENT OFFICE, created not by statute but
by the Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed
that the Chairman and Members of the Commission on Human Rights shall have a "term of
office."

Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and
created by the Constitution to be independent as the Commission on Human Rights-and
vested with the delicate and vital functions of investigating violations of human rights,
pinpointing responsibility and recommending sanctions as well as remedial measures therefor,
can truly function with independence and effectiveness, when the tenure in office of its
Chairman and Members is made dependent on the pleasure of the President. Executive
Order No. 163-A, being antithetical to the constitutional mandate of independence for the
Commission on Human Rights has to be declared unconstitutional.

The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its
constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly
point to its being plainly at war with the constitutional intent of independence for the
Commission. Thus

MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this body to be
constitutionalized is the fact that regardless of who is the President or who holds the
executive power, the human rights issue is of such importance that it should be safeguarded
and it should be independent of political parties or powers that are actually holding the reins of
government. Our experience during the martial law period made us realize how precious
those rights are and, therefore, these must be safeguarded at all times.

xxx xxx xxx

MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the power of
the Commission on Human Rights to be coterminous with the president, because the
President's power is such that if he appoints a certain commissioner and that commissioner is
subject to the President, therefore, any human rights violations committed under the person's
administration will be subject to presidential pressure. That is what we would like to avoid
to make the protection of human rights go beyond the fortunes of different political parties or
administrations in power. 28

xxx xxx xxx

MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable Chief
Justice Concepcion and retired Justice J.B.L. Reyes and they believe that there should be an
independent Commission on Human Rights free from executive influence because many of
the irregularities on human rights violations are committed by members of the armed forces
and members of the executive branch of the government. So as to insulate this body from
political interference, there is a need to constitutionalize it. 29

xxx xxx xxx

MR. SARMIENTO: On the inquiry on whether there is a need for this to be constitutionalized, I
would refer to a previous inquiry that there is still a need for making this a constitutional body
free or insulated from interference. I conferred with former Chief Justice Concepcion and the
acting chairman of the Presidential Committee on Human Rights, retired Justice J.B.L. Reyes,
and they are one in saying that this body should be constitutionalized so that it will be free
from executive control or interferences, since many of the abuses are committed by the
members of the military or the armed forces. 30

xxx xxx xxx

MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we leave it to
Congress, this commission will be within the reach of politicians and of public officers and that
to me is dangerous. We should insulate this body from political control and political
interference because of the nature of its functions to investigate all forms of human rights
violations which are principally committed by members of the military, by the Armed Forces of
the Philippines. 31

xxx xxx xxx

MR. GARCIA. The critical factor here is political control, and normally, when a body is
appointed by Presidents who may change, the commission must remain above these
changes in political control. Secondly, the other important factor to consider are the armed
forces, the police forces which have tremendous power at their command and, therefore, we
would need a commission composed of men who also are beyond the reach of these forces
and the changes in political administration. 32

xxx xxx xxx

MR MONSOD. Yes, It is the committee's position that this proposed special body, in order to
function effectively, must be invested with an independence that is necessary not only for its
credibility but also for the effectiveness of its work. However, we want to make a distinction in
this Constitution. May be what happened was that it was referred to the wrong committee. In
the opinion of the committee, this need not be a commission that is similar to the three
constitutional commissions like the COA, the COMELEC, and the Civil Service. It need not be
in that article. 33

xxx xxx xxx

MR. COLAYCO. The Commissioners earlier objection was that the Office of the President is
not involved in the project. How sure are we that the next President of the Philippines will be
somebody we can trust? Remember, even now there is a growing concern about some of the
bodies, agencies and commission created by President Aquino. 34

xxx xxx xxx

.... Leaving to Congress the creation of the Commission on Human Rights is giving less
importance to a truly fundamental need to set up a body that will effectively enforce the rules
designed to uphold human rights. 35

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE

To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of
Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the
President on 17 December 1988, and her acceptance thereof, is not to say that she cannot be
removed from office before the expiration of her seven (7) year term. She certainly can be
removed but her removal must be for cause and with her right to due process properly
safeguarded. In the case of NASECO vs. NLRC, 36 this Court held that before a rank-and-file
employee of the NASECO, a government-owned corporation, could be dismissed, she was
entitled to a hearing and due process. How much more, in the case of the Chairman of
a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights.

If there are charges against Bautista for misfeasance or malfeasance in office, charges may
be filed against her with the Ombudsman. If he finds a prima facie case against her, the
corresponding information or informations can be filed with the Sandiganbayan which may in
turn order her suspension from office while the case or cases against her are pending before
said court. 37 This is due process in action. This is the way of a government of laws and not of
men.

A FINAL WORD

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

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

SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes and Regalado, JJ.,
concur.

Fernan, C.J., took no part, having administered petitioner's oath of office.

Sarmiento, J., took no part, respondent Mallillin is my godson.

Separate Opinions

GUTIERREZ, JR., J.: Dissenting Opinion

With all due respect for the contrary view of the majority in the Court, I maintain that it is
asking too much to expect a constitutional ruling which results in absurd or irrational
consequences to ever become settled.

The President and Congress, the appointees concerned, and the general public may in time
accept the Sarmiento III v. Mison ruling because this Court has the final word on what
constitutional provisions are supposed to mean but the incongruity will remain sticking out like
a sore thumb. Serious students of the Constitution will continue to be disturbed until the
meaning of the consent power of the Commission on Appointments is straightened out either
through a re-examination of this Court's decision or an amendment to the Constitution.

Section 16, Article VII of the Constitution consists of only three sentences. The officers
specified in the first sentence clearly require confirmation by the Commission on
Appointments. The officers mentioned in the third sentence just as clearly do not require
confirmation. The problem area lies with those in the second sentence.

I submit that we should re-examine the three groups of presidential appointees under the
three sentences of Section 16.

The first group are the heads of executive departments, ambassadors, other public ministers
and consuls, officers of the armed forces from colonel or naval captain, and other officers
whose appointments are vested in the President by the Constitution. The first sentence of
Section 16 state they must be confirmed by the Commission on Appointments.

The third group are officers lower in rank whose appointments Congress has by law vested in
the President alone. They need no confirmation.

The second group of presidential appointees are "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." To which group do they belong?-Group I requiring confirmation or Group 3
where confirmation is not needed?
No matter how often and how long I read the second sentence of Section 16, I simply cannot
associate the officers mentioned therein as forming part of those referred to in the third
sentence.

Why am I constrained to hold this view?

(1) If the officers in the first group are the only appointees who need confirmation, there would
be no need for the second and third sentences of Section 16. They become superfluous. Any
one not falling under an express listing would need no confirmation. I think the Court is wrong
in treating two carefully crafted and significant provisions of the fundamental law as
superfluities. Except for the most compelling reasons, which do not exist here, no
constitutional provision should be considered a useless surplusage.

(2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority
view results in the absurd consequence where one of several hundred colonels and naval
captains must be confirmed but such important officers as the Governor of the Central Bank
with broad powers over the nation's economy and future stability or the Chairman of the
Commission on Human Rights whose office calls for no less than a constitutional mandate do
not have to be scrutinized by the Commission on Appointments. Why should a minor consul
to Timbuktu, Mali need the thorough scrutiny during the confirmation process while the
Undersecretary of Foreign Affairs who sends him there and who exercises control over his
acts can be appointed by the President alone? Why should we interpret Section 16 in such a
strange and irrational manner when no strained construction is needed to give it a logical and
more traditional and understandable meaning.?

(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we
see the word "also" in a sentence, we associate it with preceding sentences, never with the
different sentence that follows. On the other hand, the third sentence specifies "other officers
lower in rank' who are appointed pursuant to law by the President "alone." This can only mean
that the higher ranking officers in the second sentence must also be appointed with the
concurrence of the Commission on Appointments. When the Constitution requires Congress
to specify who may be appointed by the President alone, we should not add other and higher
ranking officers as also appointed by her alone. The strained interpretation by the Court's
majority makes the word "alone" meaningless if the officers to whom "alone" is not appended
are also included in the third group.

(4) The third sentence of Section 16 requires a positive act of Congress which vests an
appointment in the President alone before such an appointment is freed from the scrutiny of
the Commission on Appointments. By express constitutional mandate, it is Congress which
determines who do not need confirmation. Under the majority ruling of the Court, if Congress
creates an important office and requires the consent of the Commission before a presidential
appointment to that office is perfected, such a requirement would be unconstitutional. I
believe that the Constitution was never intended to so restrict the lawmaking power. The
Court has no jurisdiction to limit the plenary lawmaking power of the people's elected
representatives through an implied and, I must again add, a strained reading of the plain text
of Section 16. Any restriction of legislative power must be categorical, express, and
specific-never implied or forced.

(5) The Constitution specifies clearly the presidential appointees who do not need
confirmation by the Commission. The reason for non-confirmation is obvious. The members
of the Supreme Court and all lower courts and the Ombudsman and his deputies are not
confirmed because the Judicial and Bar Council screens nominees before their names are
forwarded to the President. The Vice-President as a cabinet member needs no confirmation
because the Constitution says so. He or she is chosen by the nation's entire electorate and is
only a breath away from the Presidency. Those falling under the third sentence of Section 16,
Article VII do not have to be confirmed because the Constitution gives Congress the authority
to free lower ranking officials whose positions are created by law from that requirement. I
believe that we in the Court have no power to add by implication to the list of presidential
appointees whom the Constitution in clear and categorical words declares as not needing
confirmation.

(6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is an

important constitutional body which helps give fuller expression to the democratic principles
inherent in our presidential form of government.

There are those who would render innocuous the Commission's power or perhaps even move
for its abolition as a protest against what they believe is too much horsetrading or sectarian
politics in the exercise of its functions. Since the President is a genuinely liked and popular
leader, personally untouched by scandal, who appears to be motivated only by the sincerest
of intentions, these people would want the Commission to routinely rubberstamp those whom
she appoints to high office.

Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another
interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely,
Section 16 was intended to check abuse or ill-considered appointments by a President who
belongs to the latter class.

It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly
represents the people. We should not expect Congress to act only as the selfless Idealists,
the well-meaning technocrats, the philosophers, and the coffee-shop pundits would have it
move. The masses of our people are poor and underprivileged, without the resources or the
time to get publicly involved in the intricate workings of Government, and often ill-informed or
functionally illiterate. These masses together with the propertied gentry and the elite class can
express their divergent views only through their Senators and Congressmen. Even the
buffoons and retardates deserve to have their interests considered and aired by the people's
representatives. In the democracy we have and which we try to improve upon, the
Commission on Appointments cannot be expected to function like a mindless machine without
any debates or even imperfections. The discussions and wranglings, the delays and posturing
are part of the democratic process. They should never be used as arguments to restrict
legislative power where the Constitution does not expressly provide for such a limitation.

The Commission on Human Rights is a very important office. Our country is beset by
widespread insurgency, marked inequity in the ownership and enjoyment of wealth and
political power, and dangerous conflicts arising from Ideological, ethnic and religious
differences. The tendency to use force and violent means against those who hold opposite
views appears irresistible to the holders of both governmental and rebel firepower.

The President is doubly careful in the choice of the Chairman and Members of the
Commission on Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants
the appointments to be a joint responsibility of the Presidency and Congress, through the
Commission on Appointments. She wants a more thorough screening process for these
sensitive positions. She wants only the best to survive the process.

Why should we tell both the President and Congress that they are wrong.?
Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel
concentrations should receive greater scrutiny in his appointment than the Chairman of the
Human Rights Commission who has infinitely more power and opportunity to bring the
rebellion to a just and satisfactory end.

But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the
Chairman of the Human Rights Commission as one of the "other officers whose appointments
are vested in him in this Constitution" under the first sentence of Section 16, Article VII.
Certainly, the chairman cannot be appointed by Congress or the Supreme Court. Neither
should we read Article XIII of the Constitution as classifying the chairman among the lower
ranking officers who by law may be appointed by the head of an executive department,
agency, commission, or board. The Constitution created the independent office. The
President was intended to appoint its chairman.

I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in
the call for a re-examination of its doctrine.

CRUZ, J., dissenting:

This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was
adopted by the Court more than a year ago over two dissents. The President of the
Philippines has taken a second look at it, and so too has the Commission on Appointments
representing both Houses of the Congress of the Philippines. It appears that they are not
exactly certain now that the decision in that case was correct after all. I believe it will not be
amiss for us too, in a spirit of humility, to read the Constitution again on the possibility that we
may have misread it before.

The ponencia assumes that we were right the first time and that the Mison case is settled
there is no need to re-examine it. It therefore approaches the problem at hand from another
perspective and would sustain the petitioner on an additional ground.

The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not
confirmed, conformably to Mison, and could not be replaced with the second appointment on
14 January 1989 because there was no vacancy to fill. By this reasoning, the opinion would
definitely avoid the question squarely presented to the Court, viz., whether or not the
Chairman of the Commission on Human Rights is subject to confirmation as required now by
both the President of the Philippines and the Commission on Appointments. In effect, we are
asked to reconsider the Mison ruling in the light of this supervening significant albeit decidedly
not controlling circumstance.

The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think
we must address the legal question frontally instead of falling back on a legal sleight-of hand
of now-you-see-it-now-you-don't.

As one who never agreed with the bison ruling in the first place, I suspect that the seeming
diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over
its correctness. I think this is the reason another justification had to be offered to bolster
Mison.

In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human

Rights as among the important officers who would not have to be confirmed if the majority
view were to be followed. By contrast, and inexplicably, the colonel in the armed forces would
need confirmation although he is not a constitutional officer with the serious responsibilities of
the former. Also not to be confirmed are the Governor of the Central Bank unlike the relatively
minor multisectoral representative of the regional consultative commission, and the
Undersecretary of Foreign Affairs although the consul, who is his subordinate, would need
confirmation. When I pointed to these incongruous situations, I was told it was not our place to
question the wisdom of the Constitution. What I was questioning was not the wisdom of the
Constitution but the wisdom of our interpretation which I said would lead to absurd
consequences. But only Justice Gutierrez agreed with me.

Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our
own ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a
circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.

As I see it, the submission of the petitioner's appointment to the Commission on

Appointments is a clear indication that the President of the Philippines no longer agrees with
the Mison, ruling, at least insofar as it applies to the present case. Signifi cantly the
Commission on Appointments, which was also aware of Mison, has as clearly rejected it by
acting on the appointment. These meaningful developments must give us pause. We may
have committed an error in Mison, which is bad enough, and may be persisting in it now,
which is worse.

Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent
with my view in Mison, I submit that what President Aquino extended to the petitioner on 17
December 1988 was an ad interim appointment that although immediately effective upon
acceptance was still subject to confirmation. I cannot agree that when the President said the
petitioner could and enter into the performance of her duties, "all that remained for Bautista to
do was to reject or accept the appointment." In fact, on the very day it was extended, the ad
interim appointment was submitted by the President of the Philippines to the Commission on
Appointments "for confirmation."

The ponencia says that the appointment did not need any confirmation, being the sole act of
the President under the Mison ruling. That would have settled the question quite conclusively,
but the opinion goes on to argue another justification that I for one find unnecessary, not to
say untenable. I sense here a palpable effort to bolster Mison because of the apprehension
that it is falling apart.

Of course, there was no vacancy when the nomination was made on 14 January 1989. There
is no question that the petitioner was still validly holding the office by virtue of her ad
interim appointment thereto on 17 December 1988. The nomination made later was
unnecessary because the ad interim appointment was still effective. When the Commission
on Appointments sent the petitioner the letters dated 9 January 1989 and 10 January 1989
requiring her to submit certain data and inviting her to appear before it, it was acting not on the
nomination but on the ad interim appointment. What was disapproved was
the ad interim appointment, not the nomination. The nomination of 14 January 1989 is not in
issue in this case. It is entirely immaterial. At best, it is important only as an affirmation of the
President's acknowledgment that the Chairman of the Commission on Human Rights must be
confirmed under Article VII, Section 16 of the Constitution.

It does not follow, of course, that simply because the President of the Philippines has
changed her mind, and with the expressed support of the Commission on Appointments, we
should docilely submit and reverse Mison. That is not how democracy works. The Court is
independent. I do suggest, however, that the majority could have erred in that case and that
the least we can do now is to take a more careful look at the decision. Let us check our
bearings to make sure we have not gone astray. That is all I ask

I repeat my view that the Chairman of the Commission on Human Rights is subject to
confirmation by the Commission on Appointments, for the reasons stated in my dissent in
Mison Accordingly, I vote to DENY the petition.

GRIO-AQUINO, J.: dissenting:

I believe that the appointments of the chairman and the members of the Commission on
Human Rights by the President require review and confirmation by the Commission on
Appointments in view of the following provision of Section 16, Article VII of the 1987
Constitution:

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....

In my view, the "other officers" whose appointments are vested in the President in the
Constitution are theconstitutional officers, meaning those who hold offices created under the
Constitution, and whose appointments are not otherwise provided for in the Charter. Those
constitutional officers are the chairmen and members of the Constitutional Commissions,
namely: the Civil Service Commission (Art. IX-B), the Commission on Elections (Art. IX-C),
the Commission on Audit Art. IX-D), and the Commission on Human Rights (Sec. 17, XIII).
These constitutional commissions are, without excaption, declared to be "independent," but
while in the case of the Civil Service Commission, the Commission on Elections and the
Commission on Audit, the 1987 Constitution expressly provides that "the Chairman and the
Commissioners shall be appointed by the President with the consent of the Commission on
Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such
clause is found in Section 17, Article VIII creating the Commission on Human Rights. Its
absence, however, does not detract from, or diminish, the President's power to appoint the
Chairman and Commissioners of the said Commission. The source of that power is the first
sentence of Section 16, Article VII of the Constitution for:

(1) the Commission on Human Rights is an office created by the Constitution, and

(2) the appointment of the Chairman and Commissioners thereof is vested in the President by
the Constitution.

Therefore, the said appointments shall be made by the President with the consent of the
Commission on Appointments, as provided in Section 16, Article VII of the Constitution.

It is not quite correct to argue, as the petitioner does, that the power of the Commission on
Appointments to review and confirm appointments made by the President is a "derogation of
the Chief Executive's appointing power." That power is given to the Commission on
Appointments as part of the system of checks and balances in the democratic form of
government provided for in our Constitution. As stated by a respected constitutional authority,
former U.P. Law Dean and President Vicente G. Sinco:
The function of confirming appointments is part of the power of appointment itself. It is,
therefore, executive rather than legislative in nature. In giving this power to an organ of the
legislative department, the Constitution merely provides a detail in the scheme of checks and
balances between the executive and legislative organs of the government. (Phil. Political Law
by Sinco, 11th ed., p. 266).

WHEREFORE, I vote to dismiss the petition.

Medialdea, J., dissenting:

Separate Opinions

GUTIERREZ, JR., J.: Dissenting Opinion

With all due respect for the contrary view of the majority in the Court, I maintain that it is
asking too much to expect a constitutional ruling which results in absurd or irrational
consequences to ever become settled.

The President and Congress, the appointees concerned, and the general public may in time
accept the Sarmiento III v. Mison ruling because this Court has the final word on what
constitutional provisions are supposed to mean but the incongruity will remain sticking out like
a sore thumb. Serious students of the Constitution will continue to be disturbed until the
meaning of the consent power of the Commission on Appointments is straightened out either
through a re-examination of this Court's decision or an amendment to the Constitution.

Section 16, Article VII of the Constitution consists of only three sentences. The officers
specified in the first sentence clearly require confirmation by the Commission on
Appointments. The officers mentioned in the third sentence just as clearly do not require
confirmation. The problem area lies with those in the second sentence.

I submit that we should re-examine the three groups of presidential appointees under the
three sentences of Section 16.

The first group are the heads of executive departments, ambassadors, other public ministers
and consuls, officers of the armed forces from colonel or naval captain, and other officers
whose appointments are vested in the President by the Constitution. The first sentence of
Section 16 state they must be confirmed by the Commission on Appointments.

The third group are officers lower in rank whose appointments Congress has by law vested in
the President alone. They need no confirmation.

The second group of presidential appointees are "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." To which group do they belong?-Group I requiring confirmation or Group 3
where confirmation is not needed?
No matter how often and how long I read the second sentence of Section 16, I simply cannot
associate the officers mentioned therein as forming part of those referred to in the third
sentence.

Why am I constrained to hold this view?

(1) If the officers in the first group are the only appointees who need confirmation, there would
be no need for the second and third sentences of Section 16. They become superfluous. Any
one not falling under an express listing would need no confirmation. I think the Court is wrong
in treating two carefully crafted and significant provisions of the fundamental law as
superfluities. Except for the most compelling reasons, which do not exist here, no
constitutional provision should be considered a useless surplusage.

(2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority
view results in the absurd consequence where one of several hundred colonels and naval
captains must be confirmed but such important officers as the Governor of the Central Bank
with broad powers over the nation's economy and future stability or the Chairman of the
Commission on Human Rights whose office calls for no less than a constitutional mandate do
not have to be scrutinized by the Commission on Appointments. Why should a minor consul
to Timbuktu, Mali need the thorough scrutiny during the confirmation process while the
Undersecretary of Foreign Affairs who sends him there and who exercises control over his
acts can be appointed by the President alone? Why should we interpret Section 16 in such a
strange and irrational manner when no strained construction is needed to give it a logical and
more traditional and understandable meaning.?

(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we
see the word "also" in a sentence, we associate it with preceding sentences, never with the
different sentence that follows. On the other hand, the third sentence specifies "other officers
lower in rank' who are appointed pursuant to law by the President "alone." This can only mean
that the higher ranking officers in the second sentence must also be appointed with the
concurrence of the Commission on Appointments. When the Constitution requires Congress
to specify who may be appointed by the President alone, we should not add other and higher
ranking officers as also appointed by her alone. The strained interpretation by the Court's
majority makes the word "alone" meaningless if the officers to whom "alone" is not appended
are also included in the third group.

(4) The third sentence of Section 16 requires a positive act of Congress which vests an
appointment in the President alone before such an appointment is freed from the scrutiny of
the Commission on Appointments. By express constitutional mandate, it is Congress which
determines who do not need confirmation. Under the majority ruling of the Court, if Congress
creates an important office and requires the consent of the Commission before a presidential
appointment to that office is perfected, such a requirement would be unconstitutional. I
believe that the Constitution was never intended to so restrict the lawmaking power. The
Court has no jurisdiction to limit the plenary lawmaking power of the people's elected
representatives through an implied and, I must again add, a strained reading of the plain text
of Section 16. Any restriction of legislative power must be categorical, express, and
specific-never implied or forced.

(5) The Constitution specifies clearly the presidential appointees who do not need
confirmation by the Commission. The reason for non-confirmation is obvious. The members
of the Supreme Court and all lower courts and the Ombudsman and his deputies are not
confirmed because the Judicial and Bar Council screens nominees before their names are
forwarded to the President. The Vice-President as a cabinet member needs no confirmation
because the Constitution says so. He or she is chosen by the nation's entire electorate and is
only a breath away from the Presidency. Those falling under the third sentence of Section 16,
Article VII do not have to be confirmed because the Constitution gives Congress the authority
to free lower ranking officials whose positions are created by law from that requirement. I
believe that we in the Court have no power to add by implication to the list of presidential
appointees whom the Constitution in clear and categorical words declares as not needing
confirmation.

(6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is an

important constitutional body which helps give fuller expression to the democratic principles
inherent in our presidential form of government.

There are those who would render innocuous the Commission's power or perhaps even move
for its abolition as a protest against what they believe is too much horsetrading or sectarian
politics in the exercise of its functions. Since the President is a genuinely liked and popular
leader, personally untouched by scandal, who appears to be motivated only by the sincerest
of intentions, these people would want the Commission to routinely rubberstamp those whom
she appoints to high office.

Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another
interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely,
Section 16 was intended to check abuse or ill-considered appointments by a President who
belongs to the latter class.

It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly
represents the people. We should not expect Congress to act only as the selfless Idealists,
the well-meaning technocrats, the philosophers, and the coffee-shop pundits would have it
move. The masses of our people are poor and underprivileged, without the resources or the
time to get publicly involved in the intricate workings of Government, and often ill-informed or
functionally illiterate. These masses together with the propertied gentry and the elite class can
express their divergent views only through their Senators and Congressmen. Even the
buffoons and retardates deserve to have their interests considered and aired by the people's
representatives. In the democracy we have and which we try to improve upon, the
Commission on Appointments cannot be expected to function like a mindless machine without
any debates or even imperfections. The discussions and wranglings, the delays and posturing
are part of the democratic process. They should never be used as arguments to restrict
legislative power where the Constitution does not expressly provide for such a limitation.

The Commission on Human Rights is a very important office. Our country is beset by
widespread insurgency, marked inequity in the ownership and enjoyment of wealth and
political power, and dangerous conflicts arising from Ideological, ethnic and religious
differences. The tendency to use force and violent means against those who hold opposite
views appears irresistible to the holders of both governmental and rebel firepower.

The President is doubly careful in the choice of the Chairman and Members of the
Commission on Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants
the appointments to be a joint responsibility of the Presidency and Congress, through the
Commission on Appointments. She wants a more thorough screening process for these
sensitive positions. She wants only the best to survive the process.

Why should we tell both the President and Congress that they are wrong.?
Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel
concentrations should receive greater scrutiny in his appointment than the Chairman of the
Human Rights Commission who has infinitely more power and opportunity to bring the
rebellion to a just and satisfactory end.

But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the
Chairman of the Human Rights Commission as one of the "other officers whose appointments
are vested in him in this Constitution" under the first sentence of Section 16, Article VII.
Certainly, the chairman cannot be appointed by Congress or the Supreme Court. Neither
should we read Article XIII of the Constitution as classifying the chairman among the lower
ranking officers who by law may be appointed by the head of an executive department,
agency, commission, or board. The Constitution created the independent office. The
President was intended to appoint its chairman.

I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in
the call for a re-examination of its doctrine.

CRUZ, J., dissenting:

This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was
adopted by the Court more than a year ago over two dissents. The President of the
Philippines has taken a second look at it, and so too has the Commission on Appointments
representing both Houses of the Congress of the Philippines. It appears that they are not
exactly certain now that the decision in that case was correct after all. I believe it will not be
amiss for us too, in a spirit of humility, to read the Constitution again on the possibility that we
may have misread it before.

The ponencia assumes that we were right the first time and that the Mison case is
settledthere is no need to re-examine it. It therefore approaches the problem at hand from
another perspective and would sustain the petitioner on an additional ground.

The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not
confirmed, conformably to Mison, and could not be replaced with the second appointment on
14 January 1989 because there was no vacancy to fill. By this reasoning, the opinion would
definitely avoid the question squarely presented to the Court, viz., whether or not the
Chairman of the Commission on Human Rights is subject to confirmation as required now by
both the President of the Philippines and the Commission on Appointments. In effect, we are
asked to reconsider the Mison ruling in the light of this supervening significant albeit decidedly
not controlling circumstance.

The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think
we must address the legal question frontally instead of falling back on a legal sleight-of hand
of now-you-see-it-now-you-don't.

As one who never agreed with the bison ruling in the first place, I suspect that the seeming
diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over
its correctness. I think this is the reason another justification had to be offered to bolster
Mison.

In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human

Rights as among the important officers who would not have to be confirmed if the majority
view were to be followed. By contrast, and inexplicably, the colonel in the armed forces would
need confirmation although he is not a constitutional officer with the serious responsibilities of
the former. Also not to be confirmed are the Governor of the Central Bank unlike the relatively
minor multisectoral representative of the regional consultative commission, and the
Undersecretary of Foreign Affairs although the consul, who is his subordinate, would need
confirmation. When I pointed to these incongruous situations, I was told it was not our place to
question the wisdom of the Constitution. What I was questioning was not the wisdom of the
Constitution but the wisdom of our interpretation which I said would lead to absurd
consequences. But only Justice Gutierrez agreed with me.

Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our
own ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a
circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.

As I see it, the submission of the petitioner's appointment to the Commission on

Appointments is a clear indication that the President of the Philippines no longer agrees with
the Mison, ruling, at least insofar as it applies to the present case. Signifi cantly the
Commission on Appointments, which was also aware of Mison, has as clearly rejected it by
acting on the appointment. These meaningful developments must give us pause. We may
have committed an error in Mison, which is bad enough, and may be persisting in it now,
which is worse.

Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent
with my view in Mison, I submit that what President Aquino extended to the petitioner on 17
December 1988 was an ad interim appointment that although immediately effective upon
acceptance was still subject to confirmation. I cannot agree that when the President said the
petitioner could and enter into the performance of her duties, "all that remained for Bautista to
do was to reject or accept the appointment." In fact, on the very day it was extended, the ad
interim appointment was submitted by the President of the Philippines to the Commission on
Appointments "for confirmation."

The ponencia says that the appointment did not need any confirmation, being the sole act of
the President under the Mison ruling. That would have settled the question quite conclusively,
but the opinion goes on to argue another justification that I for one find unnecessary, not to
say untenable. I sense here a palpable effort to bolster Mison because of the apprehension
that it is falling apart.

Of course, there was no vacancy when the nomination was made on 14 January 1989. There
is no question that the petitioner was still validly holding the office by virtue of her ad
interim appointment thereto on 17 December 1988. The nomination made later was
unnecessary because the ad interim appointment was still effective. When the Commission
on Appointments sent the petitioner the letters dated 9 January 1989 and 10 January 1989
requiring her to submit certain data and inviting her to appear before it, it was acting not on the
nomination but on the ad interim appointment. What was disapproved was
the ad interim appointment, not the nomination. The nomination of 14 January 1989 is not in
issue in this case. It is entirely immaterial. At best, it is important only as an affirmation of the
President's acknowledgment that the Chairman of the Commission on Human Rights must be
confirmed under Article VII, Section 16 of the Constitution.

It does not follow, of course, that simply because the President of the Philippines has
changed her mind, and with the expressed support of the Commission on Appointments, we
should docilely submit and reverse Mison. That is not how democracy works. The Court is
independent. I do suggest, however, that the majority could have erred in that case and that
the least we can do now is to take a more careful look at the decision. Let us check our
bearings to make sure we have not gone astray. That is all I ask

I repeat my view that the Chairman of the Commission on Human Rights is subject to
confirmation by the Commission on Appointments, for the reasons stated in my dissent in
Mison Accordingly, I vote to DENY the petition.

GRIO-AQUINO, J.: dissenting:

I believe that the appointments of the chairman and the members of the Commission on
Human Rights by the President require review and confirmation by the Commission on
Appointments in view of the following provision of Section 16, Article VII of the 1987
Constitution:

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....

In my view, the "other officers" whose appointments are vested in the President in the
Constitution are theconstitutional officers, meaning those who hold offices created under the
Constitution, and whose appointments are not otherwise provided for in the Charter. Those
constitutional officers are the chairmen and members of the Constitutional Commissions,
namely: the Civil Service Commission (Art. IX-B), the Commission on Elections (Art. IX-C),
the Commission on Audit Art. IX-D), and the Commission on Human Rights (Sec. 17, XIII).
These constitutional commissions are, without excaption, declared to be "independent," but
while in the case of the Civil Service Commission, the Commission on Elections and the
Commission on Audit, the 1987 Constitution expressly provides that "the Chairman and the
Commissioners shall be appointed by the President with the consent of the Commission on
Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such
clause is found in Section 17, Article VIII creating the Commission on Human Rights. Its
absence, however, does not detract from, or diminish, the President's power to appoint the
Chairman and Commissioners of the said Commission. The source of that power is the first
sentence of Section 16, Article VII of the Constitution for:

(1) the Commission on Human Rights is an office created by the Constitution, and

(2) the appointment of the Chairman and Commissioners thereof is vested in the President by
the Constitution.

Therefore, the said appointments shall be made by the President with the consent of the
Commission on Appointments, as provided in Section 16, Article VII of the Constitution.

It is not quite correct to argue, as the petitioner does, that the power of the Commission on
Appointments to review and confirm appointments made by the President is a "derogation of
the Chief Executive's appointing power." That power is given to the Commission on
Appointments as part of the system of checks and balances in the democratic form of
government provided for in our Constitution. As stated by a respected constitutional authority,
former U.P. Law Dean and President Vicente G. Sinco:
The function of confirming appointments is part of the power of appointment itself. It is,
therefore, executive rather than legislative in nature. In giving this power to an organ of the
legislative department, the Constitution merely provides a detail in the scheme of checks and
balances between the executive and legislative organs of the government. (Phil. Political Law
by Sinco, 11th ed., p. 266).

WHEREFORE, I vote to dismiss the petition.

Medialdea, J., dissenting:

Footnotes

1 G.R. No. 79974, 17 December 1987, 156 SCRA 549.

2 See Section 2 (B), Section 2(C), and Section 2(D), Article IX, 1987 Constitution.

3 Annex A, Petition, Rollo, p. 8.

4 Sec. 17(l), Art. XIII, 1987 Constitution.

5 Annex B, Petition, Rollo, p. 9.

6 Annex C, Petition, Rollo, p. 10.

7 Annex D, Petition, Rollo, p. 11-1 3.

8 Annex D-1, Petition, Rollo, p. 14.

9 Annex E, Petition, Rollo, pp. 15-16.

10 Emphasis supplied.

11 Annex 1, Commission's comment, Rollo, p. 53.

12 Annex 2, Commission's comment, Rollo, p. 54.

13 Annex 3, Commission's comment, Rollo, p. 55.

14 Rollo, p. 5.

15 Rollo, pp. 5-6.

16 Resolution of 2 February 1989, Rollo, p. 17.

17 Resolution of 9 February 1989, Rollo, p. 92.

18 Rollo, pp. 145-150.

19 Rollo, pp. 100-144.

20 Rollo, pp. 153-183.

21 Resolution of 28 February 1989, Rollo, p. 183-A.

22 Rollo, pp. 189-201.

23 1 Cranch 60, 2 Law Ed., U.S. 5-8.

24 Official Gazette, Vol. 83, July 29, 1987, p. 3307.

25 Official Gazette, Vol. 83, May 11, 1987, p. 2270.

26 100 Phil. at 683.

27 100 Phil. at 694.

28 Record of the 1986 Constitutional Commission, Vol. 3, August 26,1986, p. 718.

29 Ibid., P. 728.

30 Ibid., P. 730.

31 Ibid., P. 734.

32 Ibid., P. 737.

33 Ibid., p. 743.

34 Ibid., p. 747.

35 Ibid., p. 748.

36 G.R. No. 69870, Naseco vs. NLRC: G.R. No. 70295, Eugenia C. Credo vs. NLRC, 29
November 1988.

37 Sec. 13, Rep. Act No. 3019; People of the Philippines vs. Hon. Rodolfo B. Albano , G.R.
No. L-45376-77, July 26, 1988; Luciano vs, Provincial Governor, 20 SCRA 516.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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
Manila

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.

Footnotes

* It appears that on August 4, 1987, President Aquino initially appointed four sectoral
representatives, namely: Romeo Angeles,Ramon Jabar, Estelita Juco and Dionisio S. Ojeda,
to represent the Peasants, Labor, Disabled and Women and Veterans and Elders sectors,
respectively. Said sectoral representatives, after taking their oaths of office, assumed the
functions and duties of their offices without having been required to undergo confirmation
process by the Commission on Appointments.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 106677 July 23, 1993

HERMOGENES P. POBRE, petitioner,

vs.

MARIANO E. MENDIETA and HON. CORONA IBAY-SOMERA in her capacity as Presiding

Judge of Branch 26, Regional Trial Court of Manila, respondents.

G.R. No. L-106696 July 23, 1993

HERMOGENES P. POBRE, petitioner,

vs.

HON. CORONA IBAY-SOMERA her capacity as Presiding Judge of the Regional Trial Court,
Branch 26, Manila and MARIANO A. MENDIETA, respondents.

Lino M. Patajo for petitioner.

GRIO-AQUINO, J.:

These consolidated petitions under Rules 45 and 65 of the Rules of Court were filed by
Hermogenes Pobre to set aside the decision dated August 5, 1992 and writ of prohibitory
injunction dated August 19, 1992 issued by Judge (now Court of Appeals Justice) Corona
Ibay-Somera, in Civil Case No. 92-60272 entitled, "Mariano A. Mendieta, petitioner vs.
Hermogenes P. Pobre, respondent," annulling the appointment extended by President
Corazon C. Aquino to the petitioner, Hermogenes Pobre, as Commissioner/Chairman of the
Professional Regulation Commission (hereafter PRC for brevity) and enjoining him from
discharging the duties and functions of that office.

The controversy began on January 2, 1992, when the term of office of Honorable Julio B.
Francia as PRC Commissioner/Chairman expired. At that time, Mariano A. Mendieta was the
senior Associate Commissioner and Hermogenes P. Pobre was the second Associate
Commissioner of the PRC.

On January 6, 1992, Executive Secretary Franklin M. Drilon sought the opinion of Acting
Secretary of Justice Silvestre H. Bello, III on whether the President's power to appoint the
Commissioner of the Professional Regulation Commission is restricted by Section 2 of P.D.
No. 223, as amended, which provides:

Sec. 2. Composition. The Commission shall be headed by one fulltime Commissioner and
two fulltime Associate Commissioners, all to be appointed by the President for a term of nine
(9) years without reappointment to start from the time they assume the office, except the first
two Associate Commissioners who shall be appointed, one for six (6) years and the other for
three (3) years, and thereafter, any vacancy in the Commission shall be filled for the
unexpired term only with the most senior of the Associate Commissioner succeeding the
Commissioner at the expiration of his term, resignation or removal. No person shall be
appointed chairman or member of the Commission unless he is at lease forty (40) years of
age, familiar with the principles and methods of professional regulation and/or licensing and
has at lease five (5) years of executive or managerial experience.

The Executive Secretary wanted to know whether the President may appoint as
Commissioner/Chairman of the PRC another Associate Commissioner or any person other
than the Senior Associate Commissioner.

In a Memorandum dated January 22, 1991, Acting Secretary of Justice Silvestre H. Bello, III
answered the queries as follows:

Based on the foregoing premises, it is our view that Section 2 of P.D. No. 223 does not limit or
restrict the appointing power of the President. A contrary interpretation would taint the
provision with unconstitutionality since it would countenance a usurpation by the legislature of
a power which does not belong to it but pertains to the executive. It has been said that "those
matters which the Constitution specifically confides to the executive, the legislative cannot
directly or indirectly take from his control" (Gov't. of P.I. vs. Springer, 50 Phil. 259, citing
Cooley's Constitutional Limitations, 7th Ed., pp. 126-131; l57-162). (p. 50, Rollo of 106696).

On February 15, 1992, President Corazon C. Aquino appointed the petitioner, then an
Associate Commissioner, as the PRC Commissioner/ Chairman. He took his oath of office on
February 17, 1992.

Even before Commissioner Pobre's appointment, the private respondent, Mariano A.

Mendieta, as the Senior Associate Commissioner, filed a petition for declaratory relief against
Commissioner Pobre, Executive Secretary Drilon, and Acting Secretary of Justice Eduardo
Montenegro, praying that they be enjoined from appointing, or recommending the
appointment of Associate Commissioner Pobre as Chairman of the PRC because under
Section 2 of P.D. No. 223, he (Mendieta), as the senior Associate Commissioner, was legally
entitled to succeed Francia as Chairman of the PRC. His prayer for a restraining order was
set for hearing on February 19, 1992 at 2:30 o'clock in the afternoon.

Pobre opposed the issuance of a restraining order because President Aquino had already
appointed him PRC Chairman and he had, in fact, already taken his oath of office on February
17, 1992. Judge Somera denied the prayer for a restraining order as well as the petition for
declaratory relief for being moot and academic.

Consequently, Mendieta filed a petition for quo warranto contesting Pobre's appointment as
chairman of the PRC because he (Mendieta) allegedly succeeded Francia as PRC Chairman
by operation of law.

In his answer to the petition for quo warranto, Pobre disputed Mendieta's claim on the ground
that only the President of the Philippines, in whom the appointing power is vested by law and
the Constitution, may name the successor of retired PRC Commissioner/Chairman Francia
upon the expiration of the latter's term of office.

At the pre-trial of the case, the parties agreed to file simultaneous memoranda and to submit
the case for decision on their pleadings.
On August 5, 1992 Judge Somera rendered a decision in favor of Mendieta which she
rationalized as follows:

The clear intent of Sec. 2 of P.D. 223 is to systematically provide a law allowing succession to
the Office of the Commissioner. More so, the Court could not take credence on the claim of
respondent to the effect that the most senior Associate Commissioner may only succeed to
the Office of the Commissioner of the PRC only for unexpired portion. The unexpired
portion emphasized under P.D. 223 merely pertains to that of the Associate Commissioner's
term and has precisely nothing to do with the term of office of the Commissioner. Hence, if the
law does not distinguish neither the Court should distinguish nor may any other person be
allowed to do so.

The purpose of the law in providing that any vacancy in the Professional Regulation
Commission, not just the Office of the Commissioner, shall be filled "for the unexpired term
only" is to ensure that the staggering of terms will occur every three (3) years as intended to
prevent the President from making more than one or two appointments during his term
(Visarra vs. Miraflor, 8 SCRA 1). A similar purpose can be found in Presidential Decree No.
223.

The Court finds it necessary to reiterate its findings regarding the reason and spirit of the law
in enacting P.D. 223. A careful perusal of Sec. 2 of said decree would reveal that the then
President Ferdinand E. Marcos issued this Decree with intent to give no room for
unreasonable vacancies in Commission. This is clearly emphasized by mere cursory reading
of Sec. 22, P.D. 223. The Presidential Decree, however, had by mere implication, intended
that vacancies in the position of Associate Commissioners may only be filled up by means of
a Presidential appointment. (pp. 39-40,Rollo of G.R. No. 106677; Emphasis supplied.)

On August 19, 1992, she issued a writ of prohibitory injunction directing the Deputy Sheriff of
Manila to stop Pobre from discharging the functions and duties of the
Chairman/Commissioner of the PRC, and from enjoying the rights and privileges of that office.

In due time, Pobre came to this Court for relief by a petition for certiorari with a prayer for the
issuance of a temporary restraining order which the Court issued on September 5, 1992,
ordering respondent Judge to cease and desist from enforcing and/or implementing the
decision dated August 5, 1992 and the writ of prohibitory injunction dated August 19, 1992;
and respondent Mariano A. Mendieta to cease and desist from exercising the powers and
duties of the Office of the PRC Chairman/Commissioner (G.R. No. 106696).

The petition raises an issue regarding the proper construction of the provision in Section 2 of
P.D. No. 223 that: ". . . any vacancy in the Commission shall be filled for the unexpired term
only with the most Senior of the Associate Commissioners succeeding the Commissioner at
the expiration of his term, resignation or removal," whereby the legality of Pobre's
appointment as PRC Chairman may be determined.

In interpreting this section of P.D. No. 223, consideration should be accorded the provision of
the Constitution vesting the power of appointment in the President of the Philippines.

Section 10, Article VII of the 1973 Constitution which took effect on January 17, 1973 (per
Proclamation No. 1102) was the source of former President Ferdinand E. Marcos' authority to
issue P.D. No. 223 on June 22, 1973, because under that constitutional provision, the
President was empowered to "appoint the heads of bureaus and offices." The chairman of the
PRC is the head of an office.
Sec. 10. The President shall appoint the heads of bureaus 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 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.

Section 10, Article VII of the 1973 Constitution was modified by Section 16, Article 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
appoint all other officers of the Government whose appointments are not otherwise provided
for by law, and those whom he may 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.

This provision empowers the President to appoint "those whom he may be authorized by law
to appoint." The law that authorizes him to appoint the PRC Commissioner and Associate
Commissioners, is P.D. 223, Section 2, which provides that the Commissioner and Associate
Commissioners of the PRC are "all to be appointed by the President for a term of nine (9)
years, without reappointment, to start from the time they assume office . . . .

In holding that Mendieta, as the senior PRC associate commissioner, has a valid claim to the
office of chairman/commissioner vacated by Francia, Judge Somera relied on what she called
the "succession clause" (p. 38, Rollo) in Section 2, P.D. No. 223 which provides that:

. . . any vacancy in the Commission shall be filled for the unexpired term only with the most
Senior of the Associate Commissioners succeeding the Commissioner at the expiration of his
term, resignation or removal. (Sec. 2, P.D. 223.)

She rejected Pobre's theory that said provision refers to a vacancy in the office of
Commissioner/Chairman caused by the latter's retirement, resignation or removal (also death
or incapacity) before the expiration of his 9-year term, thereby leaving "an unexpired term"
which shall be served by "the most senior among the Associate Commissioners."

We do not agree with Judge Somera's opinion that the filling up of the vacancy "for the
unexpired portion of the term only" refers to the unexpired portion of the term of the successor
(the "most senior Associate Commissioner") rather than the unexpired portion of the
Chairman's term. The Court holds that the succession clause operates only when there is an
"unexpired term" of the Chairman/Commissioner to be served. Otherwise, if the Chairman's
term had expired or been fully served, the vacancy must be filled by appointment of a new
chairman by the President.

It may be candidly admitted that the language of Section 2, P.D. 223 leaves such to be
desired for clarity. For instance, the provision speaks of "any vacancy in the Commission" but
it obviously refers only to a vacancy in the position of Commissioner or Chairman for it is only
he (or she) who may be succeeded by the "most senior of the Associate Commissioner."
Furthermore, the same section speaks of "the most senior of the Associate Commissioners
succeeding the Commissioner." Only the Chairman of the Commission bears the title of
"Commissioner;" the others are "Associate Commissioner."

The Court finds unacceptable the view that every vacancy in the Commission (except the
position of "junior" Associate Commissioner) shall be filled by "succession" or by "operation of
law" for that would deprive the President of his power to appoint a new PRC Commissioner
and Associate Commissioners "all to be appointed by the President" under P.D. No. 223.
The absurd result would be that the only occasion for the President to exercise his appointing
power would be when the position of junior (or second) Associate Commissioner becomes
vacant. We may not presume that when the President issued P.D. No. 223, he deliberately
clipped his prerogative to choose and appoint the head of the PRC and limited himself to the
selection and appointment of only the associate commissioner occupying the lowest rung of
the ladder in that agency. Since such an absurdity may not be presumed, the Court should so
construe the law as to avoid it.

The duty devolves on the court to ascertain the true meaning where the language of a statute
is of doubtful meaning, or where an adherence to the strict letter would lead to
injustice, absurdity, or contradictory provisions, since an ambiguity calling for construction
may arise when the consequence of a literal interpretation of the language is an
unjust, absurd, unreasonable, or mischievous result, or one at variance with the policy of the
legislation as a whole; and the real meaning of the statute is to be ascertained and declared,
even though it seems to conflict with the words of the statute. (82 CJS 589-590; Emphasis
supplied.)

As a matter of fact, the history of the PRC disproves Judge Somera's

"succession-by-operation-of-law" theory, for when the first PRC chairman, Eric Nubla,
stepped down on June 16, 1986 (after more than 12 years in office 1) he was not automatically
succeeded by the senior Associate Commissioner Numeriano Tanopo (who served as such up to
March 23, 1987) but by Julio Francia, Jr., an outsider, whom the President appointed as the new
PRC chairman.

When Luis Tomacruz's term as senior Associate Commissioner expired on January 1, 1989,
he was not automatically succeeded by the Associate Commissioner Domiciano Natividad.
Instead, the President appointed Mariano Mendieta as senior Associate Commissioner on
March 9, 1990. On February 13, 1991, Hermogenes Pobre was appointed junior Associate
Commissioner vice Domiciano Natividad.

Apparently, during the past 19 years that the PRC has existed (since January 2, 1974), it has
not been the practice to fill the unexpired term of a departing PRC Commissioner or Associate
Commissioner by "automatic succession." Instead, the incumbent was allowed to "hold over"
beyond his 9-year term until someone (not necessarily the next-in-rank) was appointed by the
President to succeed him.

What then is the meaning of the underlined portion of the provision that:

. . . any vacancy in the Commission shall be filled for the unexpired term only with the most
Senior of the Associate Commissioners succeeding the Commissioner at the expiration of his
term, resignation or removal. (Sec. 2, P.D. 223; emphasis supplied.)

In view of our ruling that said provision of P.D. 223 applies only to the unexpired term of the
Chairman/Commissioner, the underlined clause: "at the expiration of his term, resignation or
removal" can not possibly refer to the Chairman/Commissioner for it would contradict the first
clause providing that he will be succeeded by the senior Associate Commissioner "for
the unexpired portion of his term only." There can be no more "unexpired term" to speak of if
the Chairman stepped down "at the expiration of his term." It is more logical to assume that
the underlined clause refers to the senior Associate Commissioner who should serve only up
to "the expiration of his term, resignation or removal." Hence, the preposition "at," which
appears to have been used inadvertently, should be understood to mean "until" so that the
provision will read thus:

. . . any vacancy in the Commission shall be filled for the unexpired term only with the most
Senior of the Associate Commissioners succeeding the Commissioner until the expiration of
his term, resignation or removal. (Sec. 2. P.D. 223)

The substitution of a word in the statute is allowed to avoid an absurdity or contradiction.

The rule of construction according to the spirit of the law is especially applicable where
adherence to the letter would result in absurdity or injustice or where adherence to the letter of
the law would lead to contradictions or defeat the plain purpose of the act, or where the
provision was inserted through inadvertence. In following this rule, words may be modified or
rejected and others substituted, or words and phrases may be transposed. So the meaning of
general language may be restrained by the spirit or reason of the statute, and may be
construed to admit implied exceptions. Apparent inaccuracies and mistakes in the mere
verbiage or phraseology will be overlooked to give effect to the spirit of the law. (82 CJS
618-621.)

The substitution of "until" for "at" in this case is justified for the following reasons:

(1) the term of the commissioner and associate commissioners is fixed at nine (9) years
without reappointment. Hence, the senior Associate Commissioner who serves the unexpired
term of the chairman, may not exceed his own 9-year term.

(2) to preserve the staggering of the 9-year term of the Commissioner and Associate
Commissioners so that the president need not appoint a Commissioner or Associate
Commissioner except once every three (3) years.

(3) to fix the "expiration of the term" of the Commissioner and Associate Commissioner on a
definite date which is January 2nd every three (3) years, beginning January 2, 1974 when the
PRC was first organized.

Since the appointment of the petitioner as PRC Chairman/Commissioner to succeed Julio B.

Francia, Jr. at the expiration of his term did not violate any provision of P.D. No. 223 and in
fact conforms with the Chief Executive's interpretation and implementation of the law, the
legality of said appointment should be upheld.

WHEREFORE, the petition for certiorari is GRANTED. The questioned decision dated August
5, 1992 and the writ of prohibitory injunction dated August 19, 1992 issued by respondent
Judge in Civil Case No. 92-60272 are hereby ANNULLED and SET ASIDE. The appointment
of petitioner Hermogenes P. Pobre as Commissioner/Chairman of the Professional
Regulation Commission is declared lawful and in order. No costs.

SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon,
Bellosillo, Melo and Quiason, JJ., concur.

Puno and Vitug, JJ., took no part.

# Footnotes

1 Nine (9) years as his regular term and three (3) years in a hold-over capacity.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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 appointiveofficial 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 expressly provided 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.

# Footnotes

1 An Act Accelerating the Conversion of Military Reservations into Other Productive Uses,
Creating the Bases Conversion and Development Authority for this Purpose, Providing Funds
Therefor and for Other Purposes," approved 13 March 1992, to take effect upon its
publication in a newspaper of general circulation.

2 See "Action to Declare Unconstitutional Provisions of R.A. 7227 with Prohibition and
Application for a Writ of Preliminary Injunction," dated 7 April 1992, p. 6; Rollo p. 7.
3 Sec. 7, Art. IX-B, 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."

4 Sec. 16, Art. VII, provides: "The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are not 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, commission, 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."

5 Petitioners allege that the proviso constitutes a "limitation to the power of appointment of the
President and therefore violates the separation of powers" and that "Congress cannot create
the position and at the same time specify the person to fill up such position" (Petition, pp.
4-5; Rollo, pp. 5-6).

6 G.R. Nos. 83896 and 83815 were consolidated and decided jointly on 22 February 1991,
194 SCRA 317, 339.

7 Record of the Constitutional Commission, Vol. 1, p. 546.

8 Sec. 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in an
Election. (a) No elective or appointive local 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 elective or
appointive local 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.

"(b) Except for losing candidates in barangay elections, no candidate who lost in any election
shall, within one (1) year after such election, be appointed to any office in the government or
any government-owned or controlled corporations or in any of their subsidiaries."

9 Sec. 9, Art. XII, of the Constitution.

10 Sec. 3, second par., Art. VII, of the Constitution.

11 Sec. 8, par. (1), Art. VIII, of the Constitution. This particular provision was approved in
anticipation of a unicameral legislature. However, as it turn out, we adopted instead a
bicameral form of government so that the seat allocated to the representative of Congress
has to be split between a member of the Senate and a member of the House of
Representative. Each being entitled to one-half vote in the deliberations in the Judicial and
Bar Council.

12 Record of the Constitutional Commission, Vol. 5, p. 156.

Section 4 of the Proposed Resolution No. 468, the precursor of the first paragraph of Sec. 7,
read: "Unless otherwise provided by law, no elective official shall be eligible for appointment
or designation in a temporary or acting capacity to any public office or position during his
term" (Record of the Constitutional Commission, Vol. 1, p. 524).

The following were reactions on the floor:

FR. BERNAS. On page 3, Section 4, line 5, the provision begins with the phrase "Unless
otherwiseprovided by law" which does not exist in the 1973 Constitution. This was inserted in
a 1981 amendment. We know the reason why this was put here. It practically renders the
provision useless because the whole matter becomes discretionary with the legislature. It is
one of those instance in the 1973 Constitution, as amended and constantly reamended,
where they threw in the phrase "Unless otherwise provided by law" precisely to give the
President a free hand in his decree-making power.

xxx xxx xxx

MR. FOZ. As presently worded now, the provision would allow the legislature to really provide
otherwise, meaning, to allow an elective official to be appointed to an executive office. (Ibid.,
Vol. 1, p. 539.)

xxx xxx xxx

MR. COLAYCO . . . . The way I understand this is that we are giving the legislature the power
to authorize the appointment or designation in a temporary or acting capacity of an elective
official to any public office or position during his term, Am I right?

MR. FOZ. If a law is passed regarding this matter, then such law may reverse this provision
as worded, but we have said earlier that we will entertain suggestions from the floor.

MR. COLAYCO. Personally, I find the policy established in this provision meritorious. To
make it a firm policy, I suggest that we delete the prefatory phrase "Unless
otherwise provided by law.

MR. FOZ. We agree with the Commissioner (Ibid., Vol. 1, p. 549).

As revised, known later as Sec. 4 of Resolution No. 10, and approved on third reading, the
subject section read: "No elective official shall be eligible for appointment or designation in
any capacity to any public office or position during his tenure" (Ibid., Vol. II, p. 788).

13 Supra, p. 335.
14 . . . . When, in the exigencies of government, it is necessary to create and define new
duties, the legislative department has the discretion to determine whether additional offices
shall be created, or these duties shall be attached to and become ex officio duties of existing
offices. The power extends to the consolidation of offices resulting in abolishing one and
attaching its powers and duties to the other. It matters not that the name commission or board
is given to the body created . . . ." (Tayloe v. Davis, 212 Ala 282, 102 So. 433, 40 ALR 1052,
1057).

15 Transcripts of Session Proceedings, Senate, 6 February 1992, p. 57.

16 Sec. 8, Art. IX-B, provides: "No elective or appointive public officer or employee shall
receive additional, double, or indirect compensation, unless specifically authorized by law, nor
accept without the consent of the Congress, any present, emolument, office, or title of any
kind from any foreign government.

"Pensions or gratuities shall not be considered as additional, double, or indirect

compensation."

17 Black's Law Dictionary, 4th ed., p. 128 citing In re Nicholson's Estate, 104 Colo, 561, 93 P.
2d 880, 884.

18 Ibid., citing State v. Braman, 173 Wis. 596, 181 N.W. 729, 730.

19 1987 ed., p. 180.

20 Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers (1890), p. 48, citing
In Johnston v. Wilson, 2 N.H. 205, 9 Am. Dec. 50.

21 Mechem, ibid., citing Marbury v. Madison, I Cranch (U.S.) 137; Craig v. Norfolk, I Mod.
122.

22 Concepcion v. Paredes, No. 17539, 23 December 1921; 42 Phil. 599, 603, citing Keim vs.
U.S. (1900), 177 U.S., 290.

23 G.R. No. 65439, 13 November 1985; 140 SCRA 22, 35.

24 While it is inarguable that Congress has plenary authority to prescribe qualifications to a

public office, it "may not however prescribe qualifications such that the President is entirely
stripped of discretion, thus converting appointment to a mere ministerial act" (Gonzales,
Neptali A.,Administrative Law, Law on Public Officers and Election Law, 1966 ed., p. 173,
citing Manalang v. Quitoriano, No. L-6898, 30 April 1954; 94 Phil. 903).

25 Record of the Constitutional Commission, vol. 1, p. 591.

26 63 Am Jur 2d 678-679.

27 67 CJS 295.

28 Lino Luna v. Rodriguez and De los Angeles, No. 12647, 26 November 1917, 37 Phil, 186,
192 (emphasis supplied).
29 Transcripts of Session Proceedings, Senate, 29 January 1992, pp. 89-90.

30 Vanhorne v. Dorrance, 1 L. ed. 391, cited in Cruz, Isagani A., Constitutional Law, 1987 ed.,
p. 7.

31 Cruz, Isagani A., Constitutional Law, supra.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 139554 July 21, 2006

ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR.,

and FREDDIE GARCIA, petitioners,
vs.
BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA
PONCE-ENRILE POTENCIANO, and DOREEN FERNANDEZ, respondents.

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

G.R. No. 139565 July 21, 2006

BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA

PONCE-ENRILE POTENCIANO, and DOREEN FERNANDEZ, petitioners,
vs.
ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR.,
and FREDDIE GARCIA, respondents.

DECISION

CARPIO, J.:

Presidential Decree No. 15 (PD 15) created the Cultural Center of the Philippines (CCP) for
the primary purpose of propagating arts and culture in the Philippines.1 The CCP is to awaken
the consciousness of the Filipino people to their artistic and cultural heritage and encourage
them to preserve, promote, enhance, and develop such heritage.2

PD 15 created a Board of Trustees ("Board") to govern the CCP. PD 15 mandates the Board
to draw up programs and projects that (1) cultivate and enhance public interest in, and
appreciation of, Philippine art; (2) discover and develop talents connected with Philippine
cultural pursuits; (3) create opportunities for individual and national self-expression in cultural
affairs; and (4) encourage the organization of cultural groups and the staging of cultural
exhibitions.3 The Board administers and holds in trust real and personal properties of the CCP
for the benefit of the Filipino people.4 The Board invests income derived from its projects and
operations in a Cultural Development Fund set up to attain the CCP's objectives.5

The consolidated petitions in the case at bar stem from a quo warranto proceeding involving
two sets of CCP Boards. The controversy revolves on who between the contending groups,
both claiming as the rightful trustees of the CCP Board, has the legal right to hold office. The
resolution of the issue boils down to the constitutionality of the provision of PD 15 on the
manner of filling vacancies in the Board.

The Case
Before us are two consolidated Petitions for Review on Certiorari under Rule 45 of the 1997
Rules of Civil Procedure. In G.R. No. 139554, petitioners Armita B. Rufino ("Rufino"), Zenaida
R. Tantoco ("Tantoco"),6 Lorenzo Calma ("Calma"), Rafael Simpao, Jr. ("Simpao"), and
Freddie Garcia ("Garcia"), represented by the Solicitor General and collectively referred to as
the Rufino group, seek to set aside the Decision7 dated 14 May 1999 of the Court of Appeals
in CA-G.R. SP No. 50272 as well as the Resolution dated 3 August 1999 denying the motion
for reconsideration. The dispositive portion of the appellate court's decision reads:

WHEREFORE, judgment is hereby rendered

1) Declaring petitioners [the Endriga group] to have a clear right to their respective offices to
which they were elected by the CCP Board up to the expiration of their 4-year term,

2) Ousting respondents [the Rufino group], except respondent Zenaida R. Tantoco, from their
respective offices and excluding them therefrom, and

3) Dismissing the case against respondent Zenaida R. Tantoco.

SO ORDERED.8

In G.R. No. 139565, petitioners Baltazar N. Endriga ("Endriga"), Ma. Paz D. Lagdameo
("Lagdameo"), Patricia C. Sison ("Sison"), Irma Ponce-Enrile Potenciano ("Potenciano"), and
Doreen Fernandez ("Fernandez"), collectively referred to as the Endriga group, assail the
Resolution dated 3 August 1999 issued by the Court of Appeals in the same case insofar as it
denied their Motion for Immediate Execution of the Decision dated 14 May 1999.

The Antecedents

On 25 June 1966, then President Ferdinand E. Marcos issued Executive Order No. 30 (EO 30)
creating the Cultural Center of the Philippines as a trust governed by a Board of Trustees of
seven members to preserve and promote Philippine culture. The original founding trustees,
who were all appointed by President Marcos, were Imelda Romualdez-Marcos, Juan
Ponce-Enrile, Andres Soriano, Jr., Antonio Madrigal, Father Horacio Dela Costa, S.J., I.P.
Soliongco, and Ernesto Rufino.

On 5 October 1972, or soon after the declaration of Martial Law, President Marcos issued PD
15,9 the CCP's charter, which converted the CCP under EO 30 into a non-municipal public
corporation free from the "pressure or influence of politics."10 PD 15 increased the members of
CCP's Board from seven to nine trustees. Later, Executive Order No. 1058, issued on 10
October 1985, increased further the trustees to 11.

After the People Power Revolution in 1986, then President Corazon C. Aquino asked for the
courtesy resignations of the then incumbent CCP trustees and appointed new trustees to the
Board. Eventually, during the term of President Fidel V. Ramos, the CCP Board included
Endriga, Lagdameo, Sison, Potenciano, Fernandez, Lenora A. Cabili ("Cabili"), and Manuel T.
Maosa ("Maosa").

On 22 December 1998, then President Joseph E. Estrada appointed seven new trustees to
the CCP Board for a term of four years to replace the Endriga group as well as two other
incumbent trustees. The seven new trustees were:
1. Armita B. Rufino - President, vice Baltazar N. Endriga

2. Zenaida R. Tantoco - Member, vice Doreen Fernandez

3. Federico Pascual - Member, vice Lenora A. Cabili

4. Rafael Buenaventura - Member, vice Manuel T. Maosa

5. Lorenzo Calma - Member, vice Ma. Paz D. Lagdameo

6. Rafael Simpao, Jr. - Member, vice Patricia C. Sison

7. Freddie Garcia - Member, vice Irma Ponce-Enrile Potenciano

Except for Tantoco, the Rufino group took their respective oaths of office and assumed the
performance of their duties in early January 1999.

On 6 January 1999, the Endriga group filed a petition for quo warranto before this Court
questioning President Estrada's appointment of seven new members to the CCP Board. The
Endriga group alleged that under Section 6(b) of PD 15, vacancies in the CCP Board "shall be
filled by election by a vote of a majority of the trustees held at the next regular meeting x x x."
In case "only one trustee survive[s], the vacancies shall be filled by the surviving trustee
acting in consultation with the ranking officers of the [CCP]." The Endriga group claimed that it
is only when the CCP Board is entirely vacant may the President of the Philippines fill such
vacancies, acting in consultation with the ranking officers of the CCP.

The Endriga group asserted that when former President Estrada appointed the Rufino group,
only one seat was vacant due to the expiration of Maosa's term. The CCP Board then had 10
incumbent trustees, namely, Endriga, Lagdameo, Sison, Potenciano, Fernandez, together
with Cabili, Father Bernardo P. Perez ("Fr. Perez"), Eduardo De los Angeles ("De los
Angeles"), Ma. Cecilia Lazaro ("Lazaro"), and Gloria M. Angara ("Angara"). President Estrada
retained Fr. Perez, De los Angeles, Lazaro, and Angara as trustees.

Endriga's term was to expire on 26 July 1999, while the terms of Lagdameo, Sison,
Potenciano, and Fernandez were to expire on 6 February 1999. The Endriga group
maintained that under the CCP Charter, the trustees' fixed four-year term could only be
terminated "by reason of resignation, incapacity, death, or other cause." Presidential action
was neither necessary nor justified since the CCP Board then still had 10 incumbent trustees
who had the statutory power to fill by election any vacancy in the Board.

The Endriga group refused to accept that the CCP was under the supervision and control of
the President. The Endriga group cited Section 3 of PD 15, which states that the CCP "shall
enjoy autonomy of policy and operation x x x."

The Court referred the Endriga group's petition to the Court of Appeals "for appropriate action"
in observance of the hierarchy of courts.

On 14 May 1999, the Court of Appeals rendered the Decision under review granting the quo
warranto petition. The Court of Appeals declared the Endriga group lawfully entitled to hold
office as CCP trustees. On the other hand, the appellate court's Decision ousted the Rufino
group from the CCP Board.
In their motion for reconsideration, the Rufino group asserted that the law could only delegate
to the CCP Board the power to appoint officers lower in rank than the trustees of the Board.
The law may not validly confer on the CCP trustees the authority to appoint or elect their
fellow trustees, for the latter would be officers of equal rank and not of lower rank. Section
6(b) of PD 15 authorizing the CCP trustees to elect their fellow trustees should be declared
unconstitutional being repugnant to Section 16, Article VII of the 1987 Constitution allowing
the appointment only of "officers lower in rank" than the appointing power.

On 3 August 1999, the Court of Appeals denied the Rufino group's motion for reconsideration.
The Court of Appeals also denied the Endriga group's motion for immediate execution of the
14 May 1999 Decision.

Hence, the instant consolidated petitions.

Meanwhile, Angara filed a Petition-in-Intervention before this Court alleging that although she
was not named as a respondent in the quo warranto petition, she has an interest in the case
as the then incumbent CCP Board Chairperson. Angara adopted the same position and
offered the same arguments as the Rufino group.

The Ruling of the Court of Appeals

The Court of Appeals held that Section 6(b) of PD 15 providing for the manner of filling
vacancies in the CCP Board is clear, plain, and free from ambiguity. Section 6(b) of PD 15
mandates the remaining trustees to fill by election vacancies in the CCP Board. Only when
the Board is entirely vacant, which is not the situation in the present case, may the President
exercise his power to appoint.

The Court of Appeals stated that the legislative history of PD 15 shows a clear intent "to
insulate the position of trustee from the pressure or influence of politics by abandoning
appointment by the President of the Philippines as the mode of filling"11 vacancies in the CCP
Board. The Court of Appeals held that until Section 6(b) of PD 15 is declared unconstitutional
in a proper case, it remains the law. The Court of Appeals also clarified that PD 15 vests on
the CCP Chairperson the power to appoint all officers, staff, and personnel of the CCP,
subject to confirmation by the Board.

The Court of Appeals denied the Rufino group's motion for reconsideration for failure to raise
new issues except the argument that Section 6(b) of PD 15 is unconstitutional. The Court of
Appeals declined to rule on the constitutionality of Section 6(b) of PD 15 since the Rufino
group raised this issue for the first time in the motion for reconsideration. The Court of
Appeals also held, "Nor may the President's constitutional and/or statutory power of
supervision and control over government corporations restrict or modify the application of the
CCP Charter."12

The Court of Appeals, moreover, denied the Endriga group's motion for immediate execution
of judgment on the ground that the reasons submitted to justify execution pending appeal
were not persuasive.

The Issues

In G.R. No. 139554, the Rufino group, through the Solicitor General, contends that the Court
of Appeals committed reversible error:
 I

x x x in holding that it was "not actuated" to pass upon the constitutionality of Section 6(b) of
PD 15 inasmuch as the issue was raised for the first time in [Rufino et al.'s] motion for
reconsideration;

II

x x x in not holding that Section 6(b) of PD 15 is unconstitutional considering that:

A. x x x [it] is an invalid delegation of the President's appointing power under the Constitution;

B. x x x [it] effectively deprives the President of his constitutional power of control and
supervision over the CCP;

III

x x x in declaring the provisions of PD 15 as clear and complete and in failing to apply the
executive/administrative construction x x x which has been consistently recognized and
accepted since 1972;

IV

x x x in finding that [Endriga et al.] have a clear legal right to be the incumbent trustees and
officers of the CCP considering that:

A. Endriga et al. are estopped from instituting the quo warranto action since they recognized
and benefited from the administrative construction regarding the filling of vacancies in the
CCP Board of Trustees x x x;

B. x x x [Endriga et al.'s] terms did not legally commence as [they] were not validly elected
under PD 15;

C. assuming that [Endriga et al.] were validly elected, they lost their right to retain their offices
because their terms as trustees expired on 31 December 1998;

D. [Endriga et al.] assumed positions in conflict x x x with their offices in the CCP and were
thus not entitled to retain the same;

x x x in not dismissing the quo warranto petition for being moot x x x;

VI

x x x in holding that [Rufino et al.'s] prayer [that the] disputed offices [be declared] entirely as
vacant is bereft of basis and amounts to "an admission of their lack of right to the office they
claim."13

In G.R. No. 139565, the Endriga group raises the following issue:
whether a writ of quo warranto involving a public office should be declared a self-executing
judgment and deemed immediately executory under Rule 39, Section 4 of the Rules of
Court.14

The Court's Ruling

The petition in G.R. No. 139554 has merit.

The battle for CCP's leadership between the Rufino and Endriga groups dealt a blow to the
country's artistic and cultural activities. The highly publicized leadership row over the CCP
created discord among management, artists, scholars, employees, and even the public
because of the public interest at stake.

Subsequently, the assumption to office of a new President in 2001 seemingly restored

normalcy to the CCP leadership. After then Vice-President Gloria Macapagal-Arroyo
assumed the Presidency on 20 January 2001, the Rufino group tendered their respective
resignations on 24-29 January 2001 as trustees of the CCP Board. On 12 July 2001,
President Macapagal-Arroyo appointed 11 trustees to the CCP Board with the corresponding
positions set opposite their names:

1. Baltazar N. Endriga - Chairman

2. Nestor O. Jardin - President

3. Ma. Paz D. Lagdameo - Member

4. Teresita O. Luz - Member

5. Irma P.E. Potenciano - Member

6. Eduardo D. De los Angeles - Member

7. Patricia C. Sison - Member

8. Benjamin H. Cervantes - Member

9. Sonia M. Roco - Member

10. Ruperto S. Nicdao, Jr. - Member

11. Lina F. Litton - Member

In its special meeting on 13 July 2001, the CCP Board elected these 11 newly-appointed
trustees to the same positions and as trustees of the CCP Board. In the same meeting, the
Board also elected the Chairman and President.

On 21 December 2001, the Solicitor General submitted to this Court a manifestation stating
that the "election of the trustees was made without prejudice to the resolution of the
constitutional issues before this Honorable Court in G.R. Nos. 139554 and 139565, x x x."15
 The Issue of Mootness

We first consider the Rufino group's contention that the Endriga group's quo warranto suit
should have been dismissed for being moot. The Rufino group argued that when the Endriga
group's terms subsequently expired, there was no more actual controversy for the Court to
decide.

For the Court to exercise its power of adjudication, there must be an actual case or
controversy one that involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial resolution.16 The case must not be moot or based on extra-legal or other
similar considerations not cognizable by courts of justice.17 A case becomes moot when its
purpose has become stale.18

The purpose of the quo warranto petition was to oust the Rufino group from the CCP Board
and to declare the Endriga group as the rightful trustees of the CCP Board. It may appear that
supervening events have rendered this case moot with the resignation of the Rufino group as
well as the expiration of the terms of the Endriga group based on their appointments by then
President Ramos. A "new" set of CCP trustees had been appointed by President
Macapagal-Arroyo and subsequently elected by the CCP Board.

However, there are times when the controversy is of such character that to prevent its
recurrence, and to assure respect for constitutional limitations, this Court must pass on the
merits of a case. This is one such case.

The issues raised here are no longer just determinative of the respective rights of the
contending parties. The issues pertaining to circumstances personal to the Endriga group
may have become stale. These issues are (1) whether the Endriga group is estopped from
bringing the quo warranto for they themselves were appointed by the incumbent President; (2)
whether they were validly elected by the remaining CCP trustees; (3) whether their terms
expired on 31 December 1998 as specified in their appointment papers; and (4) whether they
are entitled to immediate execution of judgment.

However, the constitutional question that gave rise to these issues will continue to spawn the
same controversy in the future, unless the threshold constitutional question is resolved the
validity of Section 6(b) and (c) of PD 15 on the manner of filling vacancies in the CCP Board.
While the issues may be set aside in the meantime, they are certain to recur every four years,
especially when a new President assumes office, generating the same controversy all over
again. Thus, the issues raised here are capable of repetition, yet evading review if
compromises are resorted every time the same controversy erupts and the constitutionality of
Section 6(b) and (c) of PD 15 is not resolved.

The Court cannot refrain from passing upon the constitutionality of Section 6(b) and (c) of PD
15 if only to prevent a repeat of this regrettable controversy and to protect the CCP from being
periodically wracked by internecine politics. Every President who assumes office naturally
wants to appoint his or her own trustees to the CCP Board. A frontal clash will thus
periodically arise between the President's constitutional power to appoint under Section 16,
Article VII of the 1987 Constitution and the CCP trustees' power to elect their fellow trustees
under Section 6(b) and (c) of PD 15.

This Court may, in the exercise of its sound discretion, brush aside procedural barriers19 and
take cognizance of constitutional issues due to their paramount importance. It is the Court's
duty 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.20 This Court has the final word
on what the law means.21 The Court must assure respect for the constitutional limitations
embodied in the 1987 Constitution.

Interpreting Section 6(b) and (c) of PD 15

At the heart of the controversy is Section 6(b) of PD 15, as amended, which reads:

Board of Trustees. The governing powers and authority of the corporation shall be vested
in, and exercised by, a Board of eleven (11) Trustees who shall serve without compensation.

xxxx

(b) Vacancies in the Board of Trustees due to termination of term, resignation, incapacity,
death or other cause as may be provided in the By-laws, shall be filled by election by a
vote of a majority of the trustees held at the next regular meeting following occurrence
of such vacancy. The elected trustee shall then hold office for a complete term of four years
unless sooner terminated by reason of resignation, incapacity, death or other cause. Should
only one trustee survive, the vacancies shall be filled by the surviving trustee acting in
consultation with the ranking officers of the Center. Such officers shall be designated in the
Center's Code of By-Laws. Should for any reason the Board be left entirely vacant, the same
shall be filled by the President of the Philippines acting in consultation with the
aforementioned ranking officers of the Center. (Emphasis supplied)

Inextricably related to Section 6(b) is Section 6(c) which limits the terms of the trustees, as
follows:

(c) No person may serve as trustee who is not a resident of the Philippines, of good moral
standing in the community and at least 25 years of age: Provided, That there shall always be
a majority of the trustees who are citizens of the Philippines. Trustees may not
be reelected for more than two (2) consecutive terms. (Emphasis supplied)

The clear and categorical language of Section 6(b) of PD 15 states that vacancies in the CCP
Board shall befilled by a majority vote of the remaining trustees. Should only one trustee
survive, the vacancies shall be filled by the surviving trustee acting in consultation with
the ranking officers of the CCP. Should the Board become entirely vacant, the
vacancies shall be filled by the President of the Philippines acting in consultation with the
same ranking officers of the CCP. Thus, the remaining trustees, whether one or more, elect
their fellow trustees for a fixed four-year term. On the other hand, Section 6(c) of PD 15 does
not allow trustees to reelect fellow trustees for more than two consecutive terms.

The Power of Appointment

The source of the President's power to appoint, as well as the Legislature's authority to
delegate the power to appoint, is found in Section 16, Article VII of the 1987 Constitution
which provides:

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

The power to appoint is the prerogative of the President, except in those instances when the
Constitution provides otherwise. Usurpation of this fundamentally Executive power by the
Legislative and Judicial branches violates the system of separation of powers that inheres in
our democratic republican government.22

Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of
officers. The first group refers to 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 the President by the
Constitution. The second group refers to those whom the President may be authorized by law
to appoint. The third group refers to all other officers of the Government whose appointments
are not otherwise provided by law.

Under the same Section 16, there is a fourth group of lower-ranked officers whose
appointments Congress may by law vest in the heads of departments, agencies, commissions,
or boards. The present case involves the interpretation of Section 16, Article VII of the 1987
Constitution with respect to the appointment of this fourth group of officers.23

The President appoints the first group of officers with the consent of the Commission on
Appointments. The President appoints the second and third groups of officers without the
consent of the Commission on Appointments. The President appoints the third group of
officers if the law is silent on who is the appointing power, or if the law authorizing the head of
a department, agency, commission, or board to appoint is declared unconstitutional. Thus, if
Section 6(b) and (c) of PD 15 is found unconstitutional, the President shall appoint the
trustees of the CCP Board because the trustees fall under the third group of officers.

The Scope of the Appointment Power of the Heads of

Departments, Agencies, Commissions, or Boards

The original text of Section 16, Article VII of the 1987 Constitution, as written in Resolution No.
51724 of the Constitutional Commission, is almost a verbatim copy of the one found in the
1935 Constitution. Constitutional Commissioner Father Joaquin Bernas, S.J., explains the
evolution of this provision and its import, thus:

The last sentence of the first paragraph of Section 16 x x x is a relic from the 1935 and 1973
Constitutions, x x x.

Under the 1935 Constitution, the provision was: "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." As already seen, it meant that, while the general rule was that all presidential
appointments needed confirmation by the Commission on Appointments, Congress could
relax this rule by vesting the power to appoint "inferior officers" in "the President alone, in the
courts, or in the heads of departments." It also meant that while, generally, appointing
authority belongs to the President, Congress could let others share in such authority.
And the word "inferior" was understood to mean not petty or unimportant but lower in
rank than those to whom appointing authority could be given.

Under the 1973 Constitution, according to which the power of the President to appoint was
not limited by any other body, the provision read: "However, the Batasang Pambansa may by
law vest in members of the Cabinet, courts, heads of agencies, commissions, and boards the
power to appoint inferior officers in their respective offices." No mention was made of the
President. The premise was that the power to appoint belonged to the President; but the
Batasan could diffuse this authority by allowing it to be shared by officers other than
the President.

The 1987 provision also has the evident intent of allowing Congress to give to officers other
than the President the authority to appoint. To that extent therefore reference to the President
is pointless. And by using the word "alone," copying the tenor of the 1935 provision, it implies,
it is submitted, that the general rule in the 1935 Constitution of requiring confirmation by the
Commission on Appointments had not been changed. Thereby the picture has been blurred.
This confused text, however, should be attributed to oversight. Reference to the President
must be ignored and the whole sentence must be read merely as authority for Congress to
vest appointing power in courts, in heads of departments, agencies, commissions, or boards
after the manner of the 1973 text.

Incidentally, the 1987 text, in order to eschew any pejorative connotation, avoids the phrase
"inferior officers" and translates it instead into "officers lower in rank," that is, lower in rank
than the courts or the heads of departments, agencies, commissions, or
boards.25 (Emphasis supplied)

The framers of the 1987 Constitution clearly intended that Congress could by law vest the
appointment of lower-ranked officers in the heads of departments, agencies, commissions,
or boards. The deliberations26 of the 1986 Constitutional Commission explain this intent
beyond any doubt.27

The framers of the 1987 Constitution changed the qualifying word "inferior" to the less
disparaging phrase "lower in rank" purely for style. However, the clear intent remained
that these inferior or lower in rank officers are the subordinates of the heads of
departments, agencies, commissions, or boards who are vested by law with the power
to appoint. The express language of the Constitution and the clear intent of its framers point
to only one conclusion the officers whom the heads of departments, agencies,
commissions, or boards may appoint must be of lower rank than those vested by law with
the power to appoint.

Congress May Vest the Authority to Appoint

Only in the Heads of the Named Offices

Further, Section 16, Article VII of the 1987 Constitution authorizes Congress to vest "in the
heads of departments, agencies, commissions, or boards" the power to appoint lower-ranked
officers. Section 16 provides:

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)
In a department in the Executive branch, the head is the Secretary. The law may not authorize
the Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the
Executive department. In an agency, the power is vested in the head of the agency for it
would be preposterous to vest it in the agency itself. In a commission, the head is the
chairperson of the commission. In a board, the head is also the chairperson of the board. In
the last three situations, the law may not also authorize officers other than the heads of the
agency, commission, or board to appoint lower-ranked officers.

The grant of the power to appoint to the heads of agencies, commissions, or boards is a
matter of legislative grace. Congress has the discretion to grant to, or withhold from, the
heads of agencies, commissions, or boards the power to appoint lower-ranked officers. If it so
grants, Congress may impose certain conditions for the exercise of such legislative delegation,
like requiring the recommendation of subordinate officers or the concurrence of the other
members of the commission or board.

This is in contrast to the President's power to appoint which is a self-executing power vested
by the Constitution itself and thus not subject to legislative limitations or conditions.28 The
power to appoint conferred directly by the Constitution on the Supreme Court en banc29 and
on the Constitutional Commissions30 is also self-executing and not subject to legislative
limitations or conditions.

The Constitution authorizes Congress to vest the power to appoint lower-ranked officers
specifically in the "heads" of the specified offices, and in no other person.31 The word "heads"
refers to the chairpersons of the commissions or boards and not to their members, for several
reasons.

First, a plain reading of the last sentence of the first paragraph of Section 16, Article VII of the
1987 Constitution shows that the word "heads" refers to all the offices succeeding that term,
namely, the departments, agencies, commissions, or boards. This plain reading is consistent
with other related provisions of the Constitution.

Second, agencies, like departments, have no collegial governing bodies but have only chief
executives or heads of agencies. Thus, the word "heads" applies to agencies. Any other
interpretation is untenable.

Third, all commissions or boards have chief executives who are their heads. Since the
Constitution speaks of "heads" of offices, and all commissions or boards have chief
executives or heads, the word "heads" could only refer to the chief executives or heads of the
commissions or boards.

Fourth, the counterpart provisions of Section 16, Article VII of the 1987 Constitution in the
1935 and 1973 Constitutions uniformly refer to "heads" of offices. The 1935 Constitution
limited the grant of the appointment power only to "heads of departments."32 The 1973
Constitution expanded such grant to other officers, namely, "members of the Cabinet, x x x,
courts, heads of agencies, commissions, and boards x x x."33

If the 1973 Constitution intended to extend the grant to members of commissions or boards, it
could have followed the same language used for "members of the Cabinet" so as to state
"members of commissions or boards." Alternatively, the 1973 Constitution could have placed
the words commissions and boards after the word "courts" so as to state "members of the
Cabinet, x x x, courts, commissions and boards." Instead, the 1973 Constitution used "heads
of agencies, commissions, and boards."
Fifth, the 1935, 1973, and 1987 Constitutions make a clear distinction whenever granting the
power to appoint lower-ranked officers to members of a collegial body or to the head of that
collegial body. Thus, the 1935 Constitution speaks of vesting the power to appoint "in the
courts, or in the heads of departments." Similarly, the 1973 Constitution speaks of "members
of the Cabinet, courts, heads of agencies, commissions, and boards."

Also, the 1987 Constitution speaks of vesting the power to appoint "in the courts, or in the
heads of departments, agencies, commissions, or boards." This is consistent with Section
5(6), Article VIII of the 1987 Constitution which states that the "Supreme Court shall x x x
[a]ppoint all officials and employees of the Judiciary in accordance with the Civil Service Law,"
making the Supreme Court en banc the appointing power. In sharp contrast, when the 1987
Constitution speaks of the power to appoint lower-ranked officers in the Executive branch, it
vests the power "in the heads of departments, agencies, commissions, or boards."

In addition, the 1987 Constitution expressly provides that in the case of the constitutional
commissions, the power to appoint lower-ranked officers is vested in the commission as a
body. Thus, Section 4, Article IX-A of the 1987 Constitution provides, "The Constitutional
Commissions shall appoint their officials and employees in accordance with law."

Sixth, the last clause of the pertinent sentence in Section 16, Article VII of the 1987
Constitution is anenumeration of offices whose heads may be vested by law with the power
to appoint lower-ranked officers. This is clear from the framers' deliberations of the 1987
Constitution, thus:

THE PRESIDENT: Commissioner Davide is recognized.

MR. DAVIDE: On page 8, line 3, change the period (.) after "departments" to a comma (,) and
add AGENCIES, COMMISSIONS, OR BOARDS. This is just to complete the enumeration in
the 1935 Constitution from which this additional clause was taken.

THE PRESIDENT: Does the Committee accept?

xxxx

MR. SUMULONG: We accept the amendment.

MR. ROMULO: The Committee has accepted the amendment, Madam President.

THE PRESIDENT: Is there any objection to the addition of the words "AGENCIES,
COMMISSIONS, OR BOARDS" on line 3, page 8? (Silence) The Chair hears none; the
amendment is approved.34 (Italicization in the original; boldfacing supplied)

As an enumeration of offices, what applies to the first office in the enumeration also applies
to the succeeding offices mentioned in the enumeration. Since the words "in the heads of"
refer to "departments," the same words "in the heads of" also refer to the other offices listed
in the enumeration, namely, "agencies, commissions, or boards."

The Chairperson of the CCP Board is the Head of CCP

The head of the CCP is the Chairperson of its Board. PD 15 and its various amendments
constitute the Chairperson of the Board as the head of CCP. Thus, Section 8 of PD 15
provides:

Appointment of Personnel. The Chairman, with the confirmation of the Board, shall have
the power to appoint all officers, staff and personnel of the Center with such compensation as
may be fixed by the Board, who shall be residents of the Philippines. The Center may elect
membership in the Government Service Insurance System and if it so elects, its officers and
employees who qualify shall have the same rights and privileges as well as obligations as
those enjoyed or borne by persons in the government service. Officials and employees of the
Center shall be exempt from the coverage of the Civil Service Law and Rules.

Section 3 of the Revised Rules and Regulations of the CCP recognizes that the head of the
CCP is the Chairman of its Board when it provides:

CHAIRMAN OF THE BOARD. The Board of Trustees shall elect a Chairman who must be
one of its members, and who shall be the presiding officer of the Board of Trustees, with
power among others, to appoint, within the compensation fixed by the Board, and subject to
confirmation of the Board, remove, discipline all officers and personnel of the Center, and to
do such other acts and exercise such other powers as may be determined by the Board of
Trustees. The Chairman shall perform his duties and exercise his powers as such until such
time as the Board of Trustees, by a majority vote, shall elect another Chairman. The
Chairman shall be concurrently President, unless the Board otherwise elects another
President.

Thus, the Chairman of the CCP Board is the "head" of the CCP who may be vested by law,
under Section 16, Article VII of the 1987 Constitution, with the power to appoint lower-ranked
officers of the CCP.

Under PD 15, the CCP is a public corporation governed by a Board of Trustees. Section 6 of
PD 15, as amended, states:

Board of Trustees. The governing powers and authority of the corporation shall be vested
in, and exercised by, a Board of eleven (11) Trustees who shall serve without compensation.

The CCP, being governed by a board, is not an agency but a board for purposes of Section 16,
Article VII of the 1987 Constitution.

Section 6(b) and (c) of PD 15 Repugnant to

Section 16, Article VII of the 1987 Constitution

Section 6(b) and (c) of PD 15 is thus irreconcilably inconsistent with Section 16, Article VII of
the 1987 Constitution. Section 6(b) and (c) of PD 15 empowers the remaining trustees of the
CCP Board to fill vacancies in the CCP Board, allowing them to elect their fellow trustees. On
the other hand, Section 16, Article VII of the 1987 Constitution allows heads of departments,
agencies, commissions, or boards to appoint only "officers lower in rank" than such "heads
of departments, agencies, commissions, or boards." This excludes a situation where the
appointing officer appoints an officer equal in rank as him. Thus, insofar as it authorizes the
trustees of the CCP Board to elect their co-trustees, Section 6(b) and (c) of PD 15 is
unconstitutional because it violates Section 16, Article VII of the 1987 Constitution.
It does not matter that Section 6(b) of PD 15 empowers the remaining trustees to "elect" and
not "appoint" their fellow trustees for the effect is the same, which is to fill vacancies in the
CCP Board. A statute cannot circumvent the constitutional limitations on the power to appoint
by filling vacancies in a public office through election by the co-workers in that office. Such
manner of filling vacancies in a public office has no constitutional basis.

Further, Section 6(b) and (c) of PD 15 makes the CCP trustees the independent appointing
power of their fellow trustees. The creation of an independent appointing power inherently
conflicts with the President's power to appoint. This inherent conflict has spawned recurring
controversies in the appointment of CCP trustees every time a new President assumes office.

In the present case, the incumbent President appointed the Endriga group as trustees, while
the remaining CCP trustees elected the same Endriga group to the same positions. This has
been the modus vivendi in filling vacancies in the CCP Board, allowing the President
to appoint and the CCP Board to elect the trustees. In effect, there are two appointing
powers over the same set of officers in the Executive branch. Each appointing power
insists on exercising its own power, even if the two powers are irreconcilable. The Court must
put an end to this recurring anomaly.

The President's Power of Control

There is another constitutional impediment to the implementation of Section 6(b) and (c) of
PD 15. Under our system of government, all Executive departments, bureaus, and offices are
under the control of the President of the Philippines. Section 17, Article VII of the 1987
Constitution provides:

The President shall have control of all the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed. (Emphasis supplied)

The presidential power of control over the Executive branch of government extends to all
executive employees from the Department Secretary to the lowliest clerk.35 This constitutional
power of the President is self-executing and does not require any implementing law.
Congress cannot limit or curtail the President's power of control over the Executive branch.36

The 1987 Constitution has established three branches of government the Executive,
Legislative and Judicial. In addition, there are the independent constitutional bodies like the
Commission on Elections, Commission on Audit, Civil Service Commission, and the
Ombudsman. Then there are the hybrid or quasi-judicial agencies,37exercising jurisdiction in
specialized areas, that are under the Executive branch for administrative supervision
purposes, but whose decisions are reviewable by the courts. Lastly, there are the local
government units, which under the Constitution enjoy local autonomy38 subject only to
limitations Congress may impose by law.39 Local government units are subject to general
supervision by the President.40

Every government office, entity, or agency must fall under the Executive, Legislative, or
Judicial branches, or must belong to one of the independent constitutional bodies, or must be
a quasi-judicial body or local government unit. Otherwise, such government office, entity, or
agency has no legal and constitutional basis for its existence.

The CCP does not fall under the Legislative or Judicial branches of government. The CCP is
also not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body
nor a local government unit. Thus, the CCP must fall under the Executive branch. Under the
Revised Administrative Code of 1987, any agency "not placed by law or order creating them
under any specific department" falls "under the Office of the President."41

Since the President exercises control over "all the executive departments, bureaus, and
offices," the President necessarily exercises control over the CCP which is an office in the
Executive branch. In mandating that the President "shall have control of all executive x x x
offices," Section 17, Article VII of the 1987 Constitution does not exempt any executive office
one performing executive functions outside of the independent constitutional bodies
from the President's power of control. There is no dispute that the CCP performs executive,
and not legislative, judicial, or quasi-judicial functions.

The President's power of control applies to the acts or decisions of all officers in the Executive
branch. This is true whether such officers are appointed by the President or by heads of
departments, agencies, commissions, or boards. The power of control means the power to
revise or reverse the acts or decisions of a subordinate officer involving the exercise of
discretion.42

In short, the President sits at the apex of the Executive branch, and exercises "control of all
the executive departments, bureaus, and offices." There can be no instance under the
Constitution where an officer of the Executive branch is outside the control of the President.
The Executive branch is unitary since there is only one President vested with executive power
exercising control over the entire Executive branch.43 Any office in the Executive branch that
is not under the control of the President is a lost command whose existence is without any
legal or constitutional basis.

The Legislature cannot validly enact a law that puts a government office in the Executive
branch outside the control of the President in the guise of insulating that office from politics or
making it independent. If the office is part of the Executive branch, it must remain subject to
the control of the President. Otherwise, the Legislature can deprive the President of his
constitutional power of control over "all the executive x x x offices." If the Legislature can do
this with the Executive branch, then the Legislature can also deal a similar blow to the Judicial
branch by enacting a law putting decisions of certain lower courts beyond the review power of
the Supreme Court. This will destroy the system of checks and balances finely structured in
the 1987 Constitution among the Executive, Legislative, and Judicial branches.

Of course, the President's power of control does not extend to quasi-judicial bodies whose
proceedings and decisions are judicial in nature and subject to judicial review, even as such
quasi-judicial bodies may be under the administrative supervision of the President. It also
does not extend to local government units, which are merely under the general supervision of
the President.

Section 6(b) and (c) of PD 15, which authorizes the trustees of the CCP Board to fill vacancies
in the Board, runs afoul with the President's power of control under Section 17, Article VII of
the 1987 Constitution. The intent of Section 6(b) and (c) of PD 15 is to insulate the CCP from
political influence and pressure, specifically from the President.44 Section 6(b) and (c) of PD
15 makes the CCP a self-perpetuating entity, virtually outside the control of the President.
Such a public office or board cannot legally exist under the 1987 Constitution.

Section 3 of PD 15, as amended, states that the CCP "shall enjoy autonomy of policy and
operation x x x."45 This provision does not free the CCP from the President's control, for if it
does, then it would be unconstitutional. This provision may give the CCP Board a free hand in
initiating and formulating policies and undertaking activities, but ultimately these policies and
activities are all subject to the President's power of control.

The CCP is part of the Executive branch. No law can cut off the President's control over the
CCP in the guise of insulating the CCP from the President's influence. By stating that the
"President shall have control of all the executive x x x offices," the 1987 Constitution
empowers the President not only to influence but even to control all offices in the
Executive branch, including the CCP. Control is far greater than, and subsumes,
influence.

WHEREFORE, we GRANT the petition in G.R. No. 139554. We

declare UNCONSTITUTIONAL Section 6(b) and (c) of Presidential Decree No. 15, as
amended, insofar as it authorizes the remaining trustees to fill by election vacancies in the
Board of Trustees of the Cultural Center of the Philippines. In view of this ruling in G.R. No.
139554, we find it unnecessary to rule on G.R. No. 139565.

SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,

Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia,
Velasco, Jr., J.J., concur.

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

G.R. No. 139554

(Armita B. Rufino, Zenaida R. Tantoco, Lorenzo Calma, Rafael Simpao, Jr., and Freddie
Garcia, petitioners, v.Baltazar N. Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison, Irma
Ponce-Enrile Potenciano, and Doreen Fernandez, respondents)

G.R. No. 139565

(Baltazar N. Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison, Irma Ponce-Enrile Potenciano,
and Doreen Fernandez, petitioners, v. Armita B. Rufino, Zenaida R. Tantoco, Lorenzo Calma,
Rafael Simpao, Jr., and Freddie Garcia, respondents.)

Promulgated:
July 21, 2006

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

DISSENTING OPINION

TINGA, J.:

The majority's ruling is not as innocuous as it may seem. It is of monumental but disturbing
consequence. It upsets the delicate balance ordained by our constitutional system, which
reposes on the three equal branches of government different inherent functions augmented
by specifically chartered duties. In one fell swoop, it expands executive power in
unprecedented fashion while diminishing the inherent plenary power of Congress to
make laws as explicitly guaranteed by the Constitution. It gives license to the President
to disregard the laws enacted by Congress although it is the Chief Executive's sworn
constitutional duty to faithfully execute the laws of the land, an intolerable notion
under the democratic order. With all due respect, I must dissent.

The majority has voted to uphold the power of the President to appoint the members of the
Board of Trustees (CCP board) of the Cultural Center of the Philippines (CCP), a government
owned or controlled corporation (GOCC) established by P.D. No. 15 as amended (CCP
Charter)1 as a "non-municipal public corporation."2 A brief reference to the key facts is
necessary to illustrate the seriousness of the problem.

The petitioners in G.R. No. 139565 (Endriga Group) were members of the CCP board who sat
in such capacity beginning in 1995. Then President Ramos issued appointment papers to the
members of the Endriga Group in 1995, qualifying that their appointment would extend only
until 31 December 1998. At the same time, the Endriga Group was likewise elected by the
CCP board as members of the board, with Endriga himself elected as President.

On 22 December 1998, President Estrada advised Endriga through a letter advising him of
seven (7) new appointees (the Rufino Group) to the CCP board replacing the Endriga Group.
The Endriga Group resisted these new appointments by filing a quo warranto petition, the
resolution of which by the Court of Appeals spawned the present petitions.

In main, the Endriga Group posited that they could not have been replaced by President
Estrada as they had not yet completed their four-year term of office as provided in the CCP
Charter. The Court of Appeals3 agreed with the basic position of the Endriga Group,
notwithstanding the proviso made by President Ramos in his appointment papers. The Court
of Appeals compelled obeisance instead to Section 6 of the CCP Charter which reads:

Sec. 6. Board of Trustees. The governing powers and authority of the corporation shall be
vested in, and exercised by, a Board of eleven (11) trustees who shall serve without
compensation.

(a) The trustees appointed by the President of the Philippines pursuant to Executive Order No.
30 dated 25 June 1966, and currently holding office shall be the first trustees to serve on the
Board of the new Center and shall be known as Founding Trustees. They shall elect the
remaining trustees for a complete [Board]. Elected trustees shall hold office for a period of
four (4) years.

(b) Vacancies in the Board of Trustees due to termination of term, resignation, incapacity,
death or other cause as may be provided in the By-laws, shall be filled by election by a vote of
a majority of the trustees held at the next regular meeting following occurrence of such
vacancy. The elected trustee shall then hold office for a complete term of four years unless
sooner terminated by reason of resignation, incapacity, death or other cause. Should only one
trustee survive, the vacancies shall be filled by the surviving trustee acting in consultation with
the ranking officers of the Center. Such officers shall be designated in the Center's Code of
By-Laws. Should for any reason the Board be left entirely vacant, the same shall be filled by
the President of the Philippines acting in consultation with the aforementioned ranking officers
of the Center.4

The CCP Charter clearly states that the trustees appointed by the President in 1966 shall
elect the remaining trustees to complete the board, and such electees shall hold office for a
period of four (4) years. Subsequent vacancies in the board shall be filled by the Board of
Trustees, through a majority vote, with the new appointee serving for a four (4)-year term. The
power to select the members of the Board of Trustees is always vested in the board, no
matter the number of persons who are serving therein at a particular time, except when all the
positions in the board without exception are vacant. It is only then that the President may
exercise the power to appoint the members of the board, subject to the condition that the
appointments be made in consultation with the ranking officers of the CCP.

The majority, reversing the Court of Appeals, holds this setup prescribed by Section 6 of the
CCP Charter, unconstitutional. Two grounds are offered for this holding. First, Section
16,5 Article VII of the Constitution (Appointments Clause) limits the authority of Congress to
vest the power of appointment over lower-ranked officials only to "heads of departments,
agencies, commissions or boards." In the majority's estimation, the CCP should be
considered as a "board" for purposes of the Appointments Clause, and thus, only the
chairperson of the CCP could be authorized by law to exercise the right to appoint.6

Second, the presidential power of control over the executive branch, as provided in Section
17,7 Article VII of the Constitution (Executive Control Clause), grants the President control
over the CCP. The authority of the CCP board of Trustees to fill vacancies in the Board
renders the CCP a "self-perpetuating entity [outside] the control of the President," and is thus
unconstitutionally drawn.8

It is not readily apparent from the ponencia whether it maintains that executive control, as
contemplated in the Constitution, empowers the President to make all appointments of
officers and officials within the executive branch. If that were the position, such view is clearly
inconsistent with the Appointments Clause which categorically authorizes Congress to
empower officials other than the President to make such appointments, in the case of
lower-ranked officials. To sustain the expansive view that "executive control" extends to the
power of the President to make all appointments in the executive branch would render the
Appointments Clause inutile. It would then be senseless to acknowledge that Congress has
the right to authorize the heads of departments, agencies, commissions or boards to appoint
their junior officers, since executive control would indubitably vest that right to the President
anyway. It is nonetheless cold comfort that the majority does not expressly frame such a view,
and I hope that the ponencia does not lay the groundwork for such a radical notion.

Notwithstanding, I prefer to delineate the critical issues in the following manner. The
Appointments Clause, being complete in itself, is the sole constitutional provision governing
the authority of the President to make appointments to the executive branch, as well as the
authority of Congress to provide otherwise in certain instances. The Executive Control Clause
does not extend to the presidential power of appointments. Thus, in ruling on whether or not
the President or the CCP Board of Trustees has the power to appoint members of the board,
it is the Appointments Clause alone that should govern.

At the same time, due consideration of the Executive Control Clause is also warranted in the
present cases, but for a different purpose. It is clear from the petitions that assailed also are
the acts of President Ramos in limiting below four (4) years the term of his appointees to the
CCP board, and the subsequent act of President Estrada in appointing new appointees to the
board despite the fact that the four(4)-year term of those persons who purportedly vacated
their seats had not yet expired. Thus, a second critical issue arises: whether the holder of a
statutory term of office in the executive branch may be removed from office by the
President on the basis of the power of executive control.
 The Power of Appointment in Relation to the CCP Board of Trustees

Constitutional authority to make appointments within the executive branch is governed solely
by the Appointments Clause of the Constitution, which is broad enough to cover all possible
appointment scenarios. The provision states:

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

The first sentence of the Appointments Clause enumerates the officers whom only the
President may appoint, subject to the consent of the Commission of Appointments. There is
no doubt that no official of the CCP, or any GOCC for that matter, is included in this first
category of appointees.9

The second and third sentences must be examined together. The second
sentence authorizes the President to appoint all other officers whose appointments are not
otherwise provided for by law, or those whom he may be authorized to appoint by law. This
authority must be appreciated with the third sentence, which authorizes Congress to vest
the appointment of other officers lower in rank to the President, the courts, or in the heads of
departments, agencies, commissions, or boards.

Thus, as regards the officials in the executive branch other than those enumerated in the first
sentence of the Appointments Clause, or those who do not belong to the first category, the
following valid scenarios are authorized: (1) the law may expressly authorize the President to
make the appointment; (2) the law may expressly authorize the courts or the heads of
departments, agencies, commissions or boards to appoint those officers lower in rank; (3) the
law may remain silent on the power of appointment, thus enabling the President to make the
appointment on the basis of the Appointments Clause itself. Implicitly, it can also be argued
that other than the case of "other officers lower in rank," Congress may authorize a person or
entity other than the President to appoint all such other officers, or provide for a modality
through which such appointment may be made. I am aware that this last point may be a
source of controversy, yet for reasons I shall explain later, it is not an issue in the particular
cases at bar and, hence, need not be settled for now.

From the same provision, the majority formulates two premises: that the CCP is considered a
"board" or "Board" for purposes of the Appointments Clause,10 and, that only the President or
the chairperson of the CCP Board of Trustees, may be authorized by law to appoint officials of
the CCP.11 I respectfully disagree with both premises.

CCP an Agency under the Appointments Clause

I submit that "boards," as used in the Appointments Clause, does not pertain to the boards of
directors of government or public corporations such as the CCP. Such GOCCs are properly
considered as agencies which nonetheless fall within the same classification in the
Appointments Clause.
The term "board" or "Board,"12 as utilized in the administrative bureaucracy, may pertain to
different entities performing different functions under different mandates. There are several
prominent government agencies which use the nomenclature "Board," such as the Monetary
Board (MB), the Housing Land Use and Regulatory Board (HLURB), the Department of
Agrarian Reform Adjudication Board (DARAB), the Movie and Television Review and
Classification Board (MTRCB), and the former Energy Regulatory Board, among others.
Collegial bodies such as the Boards just mentioned have long formed part of the executive
superstructure, along with departments, agencies and commissions. Hence, it came as no
surprise that all four (4) entities were lumped together in the Appointments Clause.

However, the board of directors or board of trustees of a government corporation should be

appreciated in a different context. Unlike the Boards enumerated above, the board of
directors/trustees does not constitute a unit that operates by itself as an agency of the
government. Instead, such board of directors/trustees, as a general rule, operates as the
body that exercises the corporate powers of the government corporations concerned. The
Constitution itself authorizes the creation of government-owned or controlled corporations
through special charters,13 and the CCP was established as a public corporation through
Presidential Decree No. 15, its charter.

The majority believes differently, stating that since the CCP is governed by a board, it is not
an agency but a Board for purposes of the Appointments Clause. The majority explains this
away by merely noting that there is such an entity as the CCP Board of Trustees. The bother
of explaining why the CCP is a board, as distinguished from a department, agency or
commission is altogether avoided. Instead, it is assumed as self-evident that since there is a
CCP Board of Trustees, the CCP is consequently a board.

For one, the CCP itself may be considered as an agency since under the Administrative Code,
an agency includes a government-owned or controlled corporation.14 The term "Board," used
in a general sense, has been defined as a representative body organized to perform a trust or
to execute official or representative functions,15or a group of persons with managerial,
supervisory or investigatory functions.16 There is no doubt that sovereign executive functions
can be delegated through duly constituted Boards, such as the HLURB or MTRCB, and it is
commonly understood that the Boards in those cases refer to a group of individuals vested
with the exercise of governmental functions. However, boards do not normally have
independent juridical personality, unlike corporations.

Indeed, whatever governmental functions are exercised by the members of the CCP Board of
Trustees are not derived from their formation as a board but from its installation by charter as
the governing authority of a GOCC. The Board of Trustees is not vested with any sort of
independent juridical personality under the CCP charter; such personality is imbued instead in
the CCP itself. The Board of Trustees may be the governing authority of the CCP, but it is the
CCP itself as the legislative creation that is tasked to perform the mandate of its charter. The
latest performances of the prima ballerinas are sponsored and presented not by the panel
known as the "CCP Board of Trustees," but by the entity that is the CCP itself.

Assuming for the nonce that there is ambiguity in how the term "board" in the Appointments
Clause should be construed, the rule is that the correct meaning may be made clear and
specific by considering the company of words in which the term is found or with which it is
associated.17 Departments, agencies, commissions orboards (Boards) all pertain to segregate
units within the executive branch performing with particular competence unique and
specialized functions. Departments, agencies, commissions or boards (Boards) refer to
offices of different nomenclatures within the executive department, each performing functions
that are independent of each other.

Furthermore, that the use of the disjunctive term "or" in the enumeration "departments,
agencies, commissions orboards (Boards)" signifies that these four entities, though lumped
together, are under constitutional contemplation disassociated or distinct from each
other.18 Given the degree of fluidity within administrative practice, it is standard that a
particular government office would create subdivided groupings to which functions would be
delegated. Considering the paucity of available terms, these groupings could very well be
named as "departments," "agencies," "commissions," or "boards" (Boards). Thus, Agency X
could have an Accounting Department, a Board of Merit Review, and Employee Health and
Welfare Commission. With the majority's reasoning, these three aggrupments would fall
within the same constitutional class under the Appointments Clause as Agency X itself.
Worse, the appointing power of the head of the Accounting Department would be treated
separately and accorded equal constitutional weight as that of the head of Agency X.

The example may border on the absurd, but that is the implication of the majority's holding
that the CCP Board of Trustees is considered as a "Board" for purposes of the Appointments
Clause, even if the CCP itself is properly an agency. The enumeration "departments,
agencies, commissions or boards (Boards)," highlighted by the use of the disjunctive word
"or" positively implies that the

items are treated singly, and not one at the same time.19 The CCP board cannot be
disassociated from the CCP itself for the former was constituted as the governing authority of
the CCP and not as an independent entity on its own.

In short, within the enumeration the CCP is more akin to an "agency" rather than a "Board."
Under the Appointments Clause, agencies and Boards are accorded similar treatment and in
both cases, Congress may vest the power to appoint officers in the "head" of such agency or
Board. In CCP's case, the appointment power may be delegated to the "head" of the CCP.

Board of Trustees is the Head of the CCP

Who then is the "head" of the CCP? The majority suggests that it is the Chairperson of the
CCP board. I respectfully differ but maintain that it is the CCP board itself that is the "head" of
the CCP or acts as such head.

The majority's conclusion is predicated on the premise that the CCP should be classified as a
board (Board) and not an agency. However, as I pointed out, the CCP as a GOCC should
instead be considered as an agency. Indeed, the CCP Board of Trustees cannot exercise any
function or power outside the context of its mandate as the governing authority of the CCP.

Certainly, the answer to the query as to who or which is the head of the CCP should be
discerned primarily from its charter.

As earlier stated, Section 6 of the CCP Charter expressly provides that "the governing
powers and authority of the corporation shall be vested in, and exercised by, a Board
[of] Trustees."20 Even the Rufino Group concedes that the CCP Board of Trustees itself is the
"head" of the CCP, owing to the fact that is the governing body of the CCP.21
Section 8 of the CCP Charter provides the Chairperson with a power of appointment which
nonetheless is limited, incomplete, and subject to confirmation by the CCP Board.

Sec. 8. Appointment of Personnel. The Chairman, with the confirmation of the Board,
shall have the power to appoint all officers, staff and personnel of the Center with such
compensation as may be fixed by the Board, who shall be residents of the Philippines. xxx22

The Revised Rules and Regulations of the CCP provides the Chairperson with additional
powers not found in the charter, particularly the power to remove and discipline all officers
and personnel of the CCP. Section 3 of the Revised Rules states:

Sec. 3. Chairman of the Board. The Board of Trustees shall elect a Chairman who must be
one of its members, and who shall be the presiding officer of the Board of Trustees, with
power among others, to appoint, within the compensation fixed by the Board, and subject
to confirmation of the Board, remove, discipline all officers and personnel of the Center,
and to do such other acts and exercise such other powers as may be determined by the
Board of Trustees. The Chairman shall perform his duties and exercise his powers as
such until such time as the Board of Trustees, by a majority vote, shall elect another
Chairman. The Chairman shall be concurrently President unless the Board otherwise elects
another President.23

Even as these Revised Rules and Regulations emanate from the CCP Board itself, the
limitations contained therein on the powers to be exercised by the Chairperson highlight,
rather than diminish, the stature of the board as the governing power and authority over the
CCP.

This relationship between the CCP Chairperson and the CCP board is aligned with the theory
and practice of corporations. Generally, corporate acts and powers are exercised by the
board of directors of stock corporations or the board of trustees of non-stock
corporations.24 Such corporate powers may be delegated by charter or by-laws, or even by
the board, to particular corporate officers. However, the authority of officers to bind the
corporation is usually not considered inherent in their office, but is derived from law, the
corporate by-laws, or by delegation from the board, either expressly or impliedly by habit,
custom or acquiescence in the general course of business.25

In the case of the CCP, whatever powers are delegated to the CCP Chairperson, even if
incidental to the exercise of the corporate powers of the CCP, are still subject to confirmation
by the Board of Trustees. The Chairperson cannot by himself/herself enter into contractual
relations unless previously authorized by the Board of Trustees. On the other hand, the Board
may, without prior authority from any other person or entity, enter into such contractual
relations. Even those powers expressly granted to the Chairperson, such as appointment of
officers, staff and personnel, are qualified with the phrase, "subject to/with confirmation of the
Board."

Evidently, the powers of the CCP Chairperson are especially circumscribed while the Board of
Trustees is vested with latitude to overturn the discretion of the CCP Chairperson.

In short, for all the prestige that comes with chairing the CCP board, the Chairperson
has limited powers, and his/her acts are subject to confirmation, if not reversal, by the
board. The Chairperson is not the final authority as he/she lacks the final say within the
CCP system itself. It is the Board of Trustees that is the duly constituted governing
authority of the CCP, the statutory delegate vested with the last word over the acts of
the CCP itself.

I feel that the majority has succumbed to the temptation in regarding the term "head" as
exclusively referring to a singular personality. Such a reading, I respectfully submit, is unduly
formalistic. The proper construction of "head" should be functional in approach, focusing on
the entity that exercises the actual governing authority rather than searching for a single
individual who could be deemed by reason of title as representative of the CCP. For the
objective of the Appointments Clause is to allow the power to appoint to be exercised
by the final governing authority of a department, agency, commission or board (Board)
over its junior officers. It would be patently absurd to insist that the constitutional
intent is to authorize the repose of such appointing power instead to an individual
officer whose acts are still subject to confirmation by a higher authority within that
office. Interpretatio talis in ambiguis semper freinda est, ut eviatur inconveniens et
absurdum.26

Thus, pursuant to the Appointments Clause, Congress may vest on the CCP board, as the
head of the CCP, the power to appoint officers of the CCP. The controversy in this case lies
though in the appointment of the members of the Board of Trustees themselves, and not the
particular officers of the CCP. Thus, the question is this: Can the Board of Trustees be validly
empowered by law to appoint its own members, as it is so under the CCP Charter?

CCP Board Superior in Rank

Over the Individual Trustees

As stated earlier, the Rufino Group concedes that it is the CCP board that is the "head" of the
CCP.27 At the same time, it argues that the law could not validly give unto the members of the
CCP board the authority to appoint their fellow trustees, for the latter would be officers of
equal rank, and not lower rank.28 The majority adopts this latter position of the Rufino Group.29

I respectfully submit that the CCP board may validly appoint its own trustees, as provided for
in Section 6(b) of the CCP Charter, and under the authority of Section 16, Article VII of the
Constitution. In doing so, I recognize that the Board of Trustees as a body, the head of
the CCP, remains superior in rank than any particular member of the board.

Certainly, there can be no argument that an individual member of the CCP board is an entity
separate from the board itself, and that he, the board member, remains under the governing
authority of the CCP board. Generally speaking, the term "inferior officer" connotes a
relationship with some higher ranking officer or officers.30 A board member by himself/herself
cannot speak for or act in behalf of the board as a whole, unless the board authorizes that
member to do so. When the Board of Trustees elects to fill a vacancy in the board, it cannot
be said that it exercises the power appointment to a co-equal office. As stated before, the
Board of Trustees is an entity separate from and superior to any one of its members.

Under Section 6(d) of the CCP Charter, "majority of the Trustees holding office shall
constitute a quorum to do business." The CCP board is thus able to operate and exercise its
corporate powers irrespective of the number of persons sitting on the board at a particular
time. In fact, it is possible that at a given time, the entire CCP board would consist of only one
member, who until such time the vacancies are filled, wields the powers of the Board of
Trustees. This possibility is precisely recognized under Section 6(b) of the CCP Charter,
which authorizes the single remaining board member to fill the remaining vacancies in the
board. Unusual as it may seem, it precisely aligns with the theories behind corporate
personality. The remaining board member is authorized to fill the remaining vacancies for at
that moment said member is the Board of Trustees, the governing authority of the CCP.

The Court has recognized that collective or collegiate bodies outweigh or outrank the
individual members, even if the member is the presiding officer of the body. In GMCR, Inc. v.
Bell Telecommunications,31 the Court upheld a ruling of the Court of Appeals invalidating an
order and other issuances signed solely by the Chairman of the National Telecommunications
Commission (NTC). The Chairman had maintained that he had the exclusive authority to sign,
validate and promulgate all orders, resolutions and decisions of the NTC. The Court
disagreed, holding that the NTC is a collegial body "requiring a majority vote out of the three
members of the commission in order to validly decide a case or any incident therein."32 It was
further noted that the NTC Chairman "is not the [NTC]. He alone does not speak for and in
behalf of the NTC. The NTC acts through a three-man body, and the three members of the
commission each has one vote to cast in every deliberation concerning a case or any incident
therein that is subject to the jurisdiction of the NTC."33

Even the collegial bodies established under the Constitution exercise their powers collectively,
and not through their presiding officer. Thus, it is the Supreme Court, not the Chief Justice,
which has the power to appoint all officials and employees of the judiciary.34 The Commission
on Elections (COMELEC) and the Commission on Audit (COA) exercise their constitutional
powers as a body, and not through their Chairpersons.35

Even if not denominated as such, the CCP board takes on the same attributes as any collegial
body, and could be recognized as such in the same way that the Court has recognized the
Integrated Bar of the Philippines Board of Governors as a collegial body. The CCP board
makes decisions as a collective body during its regular meetings, presumably after
deliberation, the exchange of views and ideas, and the concurrence of the required majority
vote.36

Still, the majority's theory that Section 6 of the CCP Charter is unconstitutional is anchored in
part on the assumed predicate that it is the only the Chairperson of the CCP board, as "head"
of the CCP, who may be empowered by law to appoint the members of the CCP board. If this
premise is adopted, it would operate as the rule not only in the CCP, but in all GOCCs.
Following the majority, the following kinds of appointment would consequently be
unconstitutional:

1) Appointments to the Board of Directors/Trustees of any GOCC by authorities other than the
President of the Philippines or the chairperson of the board. The power to appoint members of
the Board of Directors/Trustees of GOCCs would exclusively belong to the President or the
Chairperson of the Board, notwithstanding any statutory mandate through a charter providing
the contrary.

2) Appointments of other officers and officials of GOCCs by authorities other than the
President of the Philippines or the chairperson of the board. Even if the Board of Directors or
Trustees is duly constituted by charter as the governing authority of the GOCC, the majority
would deprive such governing authority any appointing power, as such power could
purportedly be vested only in the President or the chairperson of the board.

3) Ex-officio appointments to the boards of GOCCs. The charters of several GOCCs mandate
that certain persons sit in the Board of Directors/Trustees by reason of their office, or in
an ex-officio capacity. Such ex-officioappointments are not expressly provided for in the
Constitution. Following the majority's literalist reading of the Appointments
Clause, ex-officio appointments are similarly invalid as they do not derive from the exclusive
appointment power of the President or the chairperson of the board.

Again, with all due respect, the rationale is predicated on a flawed interpretation of the terms
"head" and "board" (Board) as used in Section 16, Article VII, a reading that is alien to the
common understanding of corporate personality, as well as actual corporate practice. On the
contrary, the procedure outlined in Section 6 of the CCP Charter, vesting in the CCP Board of
Trustees the authority to appoint the members of the board, is congruent with constitutional
order. It should be stressed anew that the CCP Board itself is the head of the CCP and that
any individual member of the board is lower in rank than the board itself.

It is de rigueur for directors of a corporation to fill vacancies in their own Board where such
power is conferred upon them by statute or charter or by by-law.37 Modern statutes typically
provide that vacancies in the Board, regardless of the cause, may be filled up by the Board
itself, side by side with an identical power vested in the shareholders.38 Among them is the
U.S. Model Corporation Business Act of 1984 which acknowledges that vacancies in the
board of directors may be properly filled by the Board itself.39 The CCP precisely has that
power conferred to it by statute, the CCP charter that is.

Perhaps this question may arise: if the CCP board, as head of the CCP, may be legally
authorized to appoint its own members, they being officers lower in rank than the board, who
then may appoint the CCP board itself, as distinguished from individual vacancies therein? It
should be noted though that it is settled rule that the term "appointment" is in law equivalent to
"filling a vacancy."40 A vacancy exists when there is no person lawfully authorized to assume
and exercise at present the duties of the office.41 Accordingly the appointment power cannot
be validly exercised unless there is a vacancy to be filled. In the case of the CCP, its charter
provides that the Board of Trustees subsists even if there is only one remaining board
member left.42 Hence, the CCP board can only be considered as truly vacant if there is not
even one member left sitting on the board. In that case, the CCP Charter authorizes the
President to appoint the new CCP board to replace the board that no longer exists,43by filling
the vacancies in the board.

Yet pursuant to the CCP Charter, it still is the President that appoints the Board of Trustees
when such board is vacant. The statutory impediment to such appointing authority is the
recognition of very limited circumstances under which the CCP board may be considered as
truly vacant.

During deliberations on these petitions, some distress was raised over the prospect that in
case only one person remained on the CCP Board of Trustees, that one person is
empowered to appoint the other members of the Board. Perhaps the notion may strike as
counterintuitive, yet it is perfectly valid under legal consideration considering that this sole
remaining member stands as the Board itself, and not just an individual member thereof. This
setup adheres to sound theory that a Board of Directors/Trustees retains collective force, no
matter the number of persons sitting thereon, so long as the quorum requirements are
satisfied.

Indeed, the idea of a one-person board of directors is hardly a flight of whimsy under modern
corporation law. Consider the U.S. state of Delaware, the state most associated with
incorporation. With over half of publicly traded American corporations and over 60% of
all Fortune 500 companies incorporated in Delaware[44], it among all the American
states, has the greatest public interest in the oversight or regulation of corporations.Yet the
Delaware General Corporation Law expressly authorizes a corporation to constitute a
board of directors consisting of only one (1) member.[45] The choice, as expressed in
the by-laws or the certificate of incorporation, is up to the corporation. When a board of 1
director is so authorized, "the 1 director shall constitute a quorum."46Certainly, there is
nothing so forlorn with the statutory prescription of the CCP charter that admits to the
possibility of only one trustee acting as the Board. The law of Delaware, the corporate hub of
America, sufficiently defeats any supposition that the possibility of a one-person CCP Board
of Trustees offends good customs, morals, law or public policy.

Our own Corporation Code does not permit one-person Board of Directors for private
corporations,47 yet it concedes that corporations created by special laws or charters are
governed primarily by the provisions of the charter creating them.48 The determination of the
quorum requirement for chartered corporations is exclusively the prerogative of the legislature,
which can very well impose a one-person board of directors or, as in the case of CCP, permit
a situation whereby a lone remaining director would be empowered to act as the board.

The majority states that this statutory setup of the CCP "makes [it] a self-perpetuating entity."
But the CCP is really no different from private corporations whose boards of directors are,
under the Corporation Code, permitted to fill vacancies in the Board themselves for as long as
the remainder of the board still constitute a quorum.49Considering the clear legislative intent to
accord the CCP with a significant degree of independence, with its chartered guarantee of
"autonomy of policy and operation,"50 the notion should give no offense at all. Yet even if there
is wisdom or cause in preventing the "self-perpetuation" of the CCP Board, the solution lies in
legislative amendment. The majority cannot supplant legislative prerogatives by merely doing
away with provisions of law that meet its aversion. Moreover, short of amending the CCP
Charter there are enough anti-graft laws, government audit controls and other administrative
safeguards to check abuse in office and ensure accountable governance.

My own conclusion is that the means prescribed by the CCP Charter in the appointment of the
members of the CCP board is in accordance with the Appointments Clause, specifically the
provision therein that authorizes Congress to empower the President, the courts and the
heads of departments, agencies, commissions or boards (Boards) to appoint officers of lower
rank. The CCP is an agency, not a Board, and its head is its Board of Trustees. The CCP
board is superior in rank than any of its particular members, and it may thus be authorized by
law to fill vacancies by appointing new members of the board. Should the CCP board be
totally vacant, owing to the fact that no person sits on the board at a given time, then the
President is authorized by law to fill the vacant CCP board by appointment.

While the members of the Endriga Group were "appointed" by President Ramos, who had no
authority to do so, it is also uncontested that the Endriga Group were subsequently elected by
the CCP board to sit on the Board. For that reason, not their "appointment" by President
Ramos, they could be deemed as having validly assumed their office upon their election to
the board in 1995, for the statutory term of four (4) years.

Executive Control and Statutory Restrictions Thereon

There is an even more disturbing implication to the present ruling which the majority barely
touches upon. By ruling against the Endriga Group, and sanctioning their replacement by
President Estrada even though their statutory term had yet to expire, the majority in effect
has ruled that the President may remove officials whose terms have been fixed by law
even prior to the cessation of the terms in office. The legal rationale for this precipitate
new rule is not precisely explained. Pointedly though, the majority refers to the power of the
President of executive control to bolster its conclusion, characterizing such power as "another
constitutional impediment to the implementation of Section 6(b) and (c)" of the CCP Charter.

The power of the President to maintain executive control over executive departments,
bureaus and offices is constitutionally mandated by the Executive Control Clause.51 Yet as
earlier stressed, the power of the President to make appointments is governed by a different
provision, the Appointments Clause which is complete by itself. If executive control is
extended to bear on the power of the President to make appointments in the executive branch
by further expanding it, then the Appointments Clause would be rendered useless. Clearly,
the Constitution authorizes Congress to vest the power to appoint lower-ranked officials to the
heads of departments, agencies, commissions or boards, (Boards). To insist that such power
of appointment so vested in an agency head is nonetheless circumscribed by executive
control would render the provision nugatory.

Yet, may executive control be utilized to justify the removal of public officers within the
executive department notwithstanding statutory restrictions thereon, such as the prescription
of a fixed term of office? To declare that it does would be equivalent to saying that executive
control authorizes the President to violate the laws passed by Congress. And that is not
what the Constitution says.

The Executive Control Clause, which enshrines the presidential power of executive control,
actually prescribes two (2) functions to the President.

Sec. 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.

While the majority understandably lays emphasis on the first sentence of the Executive
Control Clause, the second sentence is of equal importance. It emphasizes the cardinal
principle that the President is not above the laws enacted by Congress and is obliged to obey
and execute these laws. The duty of faithful execution of laws is enshrined not only in the
Constitution, but also in the oath of office of the President and Vice-President.52

It is clear that the twin duties prescribed under the Executive Control Clause are of equal
value. At very least, they should be construed in harmony, not antagonism, to each other, so
that the power of control that the President may exercise over executive departments,
bureaus and offices should still stay within the ambit of faithful execution of the Constitution
and the laws of the land which the Constitution itself ordains.

I submit that the members of the CCP board are shielded by law from arbitrary removal by the
President, even if is sought to be justified under the aegis of executive control. The traditional
view that "the power of removal of executive officers [is] incident to the power of
appointment"53 has since been severely undercut by the U.S. Supreme Court,54 and is of
limited application in this jurisdiction in light of the constitutional guarantee to the security of
tenure of employees in the civil service.55 The notion that executive control authorizes the
President to remove the members of the CCP board at his pleasure contravenes not only the
CCP Charter but the Constitution itself, not to mention our civil service laws.

CCP Embraced Under the Civil Service

Section 2(1), Article IX-B of the Constitution states that "[t]he civil service embraces all
branches, subdivisions, instrumentalities, and agencies of the Government,
including government owned or controlled corporations with original charters". It
appears to have been the deliberate intent of the framers of the 1987 Constitution, in
specifying the phrase "with original charters," to exclude from civil service coverage those
GOCCs without original charters, meaning those incorporated under the general corporation
law.56 Yet undoubtedly, the CCP was created through an original charter, and is hence
covered by the civil service by mandate of the Constitution. This point has significant impact
on the resolution of this case.

It can be advanced that Ang-Angco v. Castillo57 settles the question in favor of the Endriga
Group. In that case, President Garcia, through his Executive Secretary, rendered a ruling
finding a Collector of Customs guilty of prejudicial conduct and considering him "resigned
effective from the date of notice."58 The action was justified by virtue of the President's power
of control over all executive departments, bureaus and offices as provided for in the 1935
Constitution. Ang-Angco countered that the Civil Service Act of 1959, a legislative enactment,
vests in the Commissioner of Civil Service the original and exclusive jurisdiction to decide
administrative cases against officers and employees in the classified service such as himself;
and that his subsequent removal by order of the President violated the Civil Service Act. The
Court agreed with Ang-angco, holding that such "law which governs the action to be taken
against officers and employees in the classified civil service is binding upon the President."59

The Court explained why the power of executive control could not supersede a statutory
enactment such as the Civil Service Act of 1959:

Let us now take up the power of control given to the President by the Constitution over all
officers and employees in the executive department which is now invoked by respondents as
justification to override the specific provisions of the Civil Service Act. This power of control is
couched in general terms for it does not set in specific manner its extent and scope. Yes, this
Court in the case of Hebron vs. 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" , 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.60

xxx

Further, the Court in Ang-Angco chose to avoid the ungainly clash between the constitutional
power of executive control and the constitutional guarantee of security of tenure to those in
the civil service, thus:

[T]he 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 provision 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 be given 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 vs. 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 vs. Romero, 84 Phil., 740, 754)61

At the same time, the Court considered the difference between the power of control exercised
by President Garcia over his direct appointees vis--vis that over employees belonging to the
classified service.

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 vs. Romero, supra), but not with regard to those officers and
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.62

Evidently, Ang-Angco lays the precedent for distinguishing between officials whose tenure
are protected under the civil service law, and those who enjoy no such statutory protection.
The 1987 Constitution likewise makes it explicit that GOCCs with original charters such as the
CCP are embraced under the civil service. Reference is thus necessary to the provisions of
the present civil service law, particularly the Administrative Code of 1987.

The Administrative Code restates that GOCCs with original charters are within the scope of
the civil service.63 It further classifies positions in the civil service into career service and
non-career service.64 Generally, personnel of GOCCs are classified as career service,
provided that they do not fall under the non-career service. On the other hand, the
Administrative Code provides that non-career service employees under the Administrative
Code are characterized by:

The Non-Career Service shall be characterized by (1) entrance on bases other than those of
the usual tests of merit and fitness utilized for the career service; and (2) tenure which is
limited to a period specified by law, or which is coterminous with that of the appointing
authority or subject to his pleasure, or which is limited to the duration of a particular project for
which purpose employment was made.

Included in the non-career service are:

1. Elective officials and their personal or confidential staff;

2. Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of
the President and their personal confidential staff(s);

3. Chairman and Members of Commissions and boards with fixed terms of office and their
personal or confidential staff;

4. Contractual personnel or those whose employment in the government is in accordance with

a special contract to undertake a specific work or job requiring special or technical skills not
available in the employing agency, to be accomplished within a specific period, which in no
case shall exceed one year and performs or accomplishes the specific work or job, under his
own responsibility with a minimum of direction and supervision from the hiring agency;

5. Emergency and seasonal personnel.65

Since the members of the CCP board are appointed to a fixed tenure, the four (4)-year period
specified by the CCP Charter, they may be properly considered as non-career service. Yet,
even if these members fall within non-career service, their right to security of tenure is
guaranteed both by the Constitution and by law.

Section 2. xxx

(3) No officer or employee of the civil service shall be removed or suspended except for cause
provided by law.66

xxx

Sec. 46. Discipline: General Provisions. (a) No officer or employee in the Civil Service shall
be suspended or dismissed except for cause as provided by law and after due process.67

What are thus the implications of the constitutionally guaranteed right to security of
tenure to non-career service officials of GOCCs with original charter, particularly those
whose appointments are for a fixed term? Simply put, these officials cannot be
removed from office before the expiration of their term without cause, or for causes
other than those specified by either the GOCC's charter, the Administrative Code, or
other relevant civil service laws. Otherwise, their removal is unconstitutional.

An appointing power cannot arbitrarily remove an officer if the tenure is fixed by law, or if the
officer is appointed to hold during the pleasure of some officer or board other than that
appointing him.68 In the absence of any provision for summary removal, an individual
appointed to a post for a fixed term may be removed prior to the term's expiration only for
cause. It is the fixity of the term that destroys the power of removal at pleasure.69

Under the CCP Charter, the term of a trustee may be terminated "due to termination of term,
resignation, incapacity, death or other cause as may be provided in the By-laws."70 These are
the causes by law which may cause the dismissal of a member of the CCP board. In this case,
the right of the Rufino Group to sit on the CCP board is premised on the claim that the
members of the Endriga Group vacated their seats before the expiration of the four (4)-year
term owing to the conditionalities made by President Ramos to their appointment. I have
already pointed out that President Ramos did not have the authority to appoint the Endriga
Group, but that they still were validly elected to the Board upon vote by the CCP board.
Evidently, the conditionality restricting the Endriga Group to serve for a period less than the
statutory term of four (4) years is invalid, whether or not it was attached to a valid appointing
authority.

Clearly then, the power of the President to remove appointed officials of GOCCs with original
charters, grounded as it could be in the power of "executive control" in the Constitution, is
circumscribed by another constitutional provision. There is no showing that the Endriga Group
was validly removed for legal cause before the expiration of their four (4)-year term. Hence,
their removal is unconstitutional, as is the appointment of the Rufino Group to fill seats to the
CCP board that had not yet become vacant.

CCP Governed by its Statutory Charter

Special considerations must likewise be appreciated owing to the fact that the CCP is a
GOCC with an original charter. The Constitution authorizes the creation or establishment of
GOCCs with original charters.71 Section 6 of the Corporation Code states that "[c]orporations
created by special laws or charters shall be governed primarily by the provisions of the special
law or charter creating them or applicable to them."72

Obviously, since the CCP Charter mandates a four (4)-year term for the members of the CCP
board, such condition is binding as a law governing the CCP. Hence, any measure
diminishing a duly elected trustee's right to serve out the four (4)-year term solely on the basis
of the President's discretion or pleasure runs contrary to law. This is a simple way to look at
the issue, and its starkness does not detract from its inherent validity. Still, a deeper
examination into the question supports the same conclusion.

There is no question that a GOCC with original charter falls within the executive department,
hence generally subject to executive control. At the same time, the fact that its creation is
sourced from legislative will should give cause for pause. GOCCs may be created by the
State either through the legislative routethe enactment of its original charter, or the
executive routeits incorporation with the Securities and Exchange Commission. The
discretion to incorporate unchartered government units falls solely with the executive branch,
but the discretion in chartering GOCCs is purely legislative. In theory, a chartered GOCC can
come into being even against the will of the Chief Executive, as is done if Congress overrides
an executive veto of a bill chartering a particular GOCC.

Our laws similarly sustain the theoretical underpinning that a chartered GOCC is a creature of
the legislative branch of government, even as it falls within the executive branch. As noted
earlier, Section 6 of the Corporation Code states that "[c]orporations created by special laws
or charters shall be governed primarily by the provisions of the special law or charter creating
them or applicable to them"73 Thus, it is Congress, and not the executive branch, which
determines a chartered GOCC's corporate structure, purposes and functions. This basic point
should be beyond controversy. Yet, the majority implies that Congress cannot limit or curtail
the President's power of control over the Executive branch, and from that context, declares
that a law authorizing the CCP Board of Trustees to appoint its own members runs afoul with
the President's power of control. Evidently, there is a looming clash between the prerogative
of the President to exercise control over the executive branch, and the prerogative of
Congress to dictate through legislation the metes and bounds of a government corporation
with original charter.

The scope of the potential controversy could also extend not only to GOCCs with original
charters, but also to other public offices created by law. Outside of those offices specifically
created by the Constitution itself, the creation and definition of the bureaucracy that
constitutes the executive branch of government is an incident of the legislative power to make
laws. The power to create public offices is inherently legislative,74 and generally
includes the power to modify or abolish it.75

Laws that create public offices or GOCCs are no different from other statutes in that they are
all binding on the Chief Executive. Indeed, while Congress is vested with the power to enact
laws, the President executes the law, executive power generally defined as the power to
enforce and administer the laws.76 The corresponding task of the Chief Executive is to see
that every government office is managed and maintained properly by the persons in charge of
it in accordance with pertinent laws and regulations. Corollary to these powers is the power to
promulgate rules and issuances that would ensure a more efficient management of the
executive branch, for so long as such issuances are not contrary to law.77

Since the creation of public offices involves an inherently legislative power, it necessarily
follows that the particular characteristics of the public office, including eligibility requirements
and the nature and length of the term in office, are also for legislative determination. Hence,
laws creating public offices generally prescribe the necessary qualifications for appointment
to the public office and the length of their terms. The wisdom of such matters is left up to the
legislative branch. At the same time, the power of appointment is executive in character, and
the choice of whom to appoint is within the discretion of the executive branch of government.
This setup aligns with traditional notions of checks and balances the choice whom to
appoint resting with the executive branch, but proscribed by the standards enacted by the
legislative. Persons to be appointed to a public office should possess the prescribed
qualifications as may be mandated by Congress.

The same setup governs the removal of officers from public office. The power to remove a
public officer is again executive in nature, but also subject to limitations as may be provided
by law. Ordinarily, where an office is created by statute, it is wholly within the power of
Congress, its legislative power extends to the subject of regulating removals from the office.78

Even the very definition of "executive control" under the Administrative Code concedes that
the general definition of control may yield to a different prescription under a specific law
governing particular agencies.

SECTION 38. Definition of Administrative Relationships. Unless otherwise expressly

stated in the Code or in other laws defining the special relationships of particular agencies,
administrative relationships shall be categorized and defined as follows:

(1) Supervision and Control. Supervision and control shall include authority to act directly
whenever a specific function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve, reverse or modify acts
and decisions of subordinate officials or units; determine priorities in the execution of plans
and programs. Unless a different meaning is explicitly provided in the specific law
governing the relationship of particular agencies the word "control" shall encompass
supervision and control as defined in this paragraph.79

The charters of GOCCs are specific laws with specific application to the GOCCs they govern.
The Administrative Code itself affirms that "control," as defined by a particular charter,
supersedes the general definition under the Code with respect to the GOCC governed by the
charter. This concession is recognition of the primacy of legislative enactments in the
constitution and definition of public offices within the executive branch of government.
 The Authority of Congress to Impose Limitations
On the Exercise of Executive Control

There is another worrisome implication in the majority's reliance on executive control. It

connotes that the legislative branch of government has no power to legislate any form of
controls on executive action, thus effectively authorizing the President to ignore the laws of
Congress. This significant diminution of the plenary power of the legislature to make laws guts
the power of Congress to check and balance the executive branch of government.

The duty of the President "to faithfully execute the laws of the land" places the Chief
Executive under the rule of law.80 The President cannot refuse to carry out a law for the simple
reason that in his/her judgment it will not be beneficial to the people.81 Indeed, the exercise of
every aspect of executive power, whether residual, express, or delegated, is governed by one
principle beyond compromisethat such powers be in accordance with law. Executive control,
taken to its furthest extreme that it warrants the unchecked exercise of executive power, can
be used to justify the President or his/her subalterns in ignoring the law, or disobeying the law.

I submit that as a means of checking executive power, the legislature is empowered to

impose reasonable statutory limitations in such exercise, over such areas wherein the
legislative jurisdiction to legislate is ceded. As stated earlier, among such areas within the
province of Congress is the creation of public offices or GOCCs. Even as such public offices
or GOCCs may fall within the control and supervision of the executive branch, Congress has
the power, through legislation, to enact whatever restrictions it may deem fit to prescribe for
the public good.

Indeed, there are appreciable limits to what restrictions Congress may impose on public
offices within the Executive Branch. For example, a law prescribing a fixed term for a Cabinet
Secretary which may extend beyond the President's term of office is of dubious constitutional
value, since Cabinet departments are recognized by law and tradition as extensions of the
President, and their heads as alter egos thereof. This concession likewise finds constitutional
enshrinement in the fact that the Appointments Clause vests solely in the President the power
to appoint members of the cabinet, subject only to confirmation by the Commission on
Appointments. I likewise recognize that in the absence of statutory restrictions, the President
should be given wide latitude in the selection and termination of presidential appointees, and
discretion to review, reverse or modify the acts of these officials.

GOCCs with original charters pose special considerations. The very fact that they were
created by legislative enactments denotes the presence of statutory restrictions. At the same
time, while remaining agencies of the State, they are in possession of independent juridical
personality segregate from that of the Government. Indeed, the very corporate character of
GOCCs implies a legislative intent to delegate sovereign functions to an entity that, in legal
contemplation, is endowed with a separate character from the Government. The
congressional charter of a GOCC should be recognized as legislative expression of some
degree of independence from the Government reposed in the GOCC. The charter itself is an
assertion of a GOCC's statutory independence from the other offices in the executive branch.

The comments of Constitutional Commissioner Fr. Joaquin Bernas on the power of control
over GOCCs warrant consideration:

It is submitted [that] the Executive's power of control over government-owned corporations,

which in legal category are not on the same level as executive departments, bureaus, or
offices, is not purely constitutional but largely statutory. The legislature may place them under
the control of the Executive where their functions "partake of the nature of government
bureaus and offices." Unlike executive departments, bureaus or offices, however, which by
constitutional mandate must be under the Executive's control, government-owned
corporations may be removed by the legislature from the Executive's control when the nature
of their functions is changed.82

Even with respect to other public offices, if Congress deems it necessary to vest such a
particular public office with a degree of independence from the executive branch, then the
legislative prescription of conditions to the appointment/removal, including the fixing of a term
of office, should generally be upheld. Indeed, Congress has the right to create public offices.
While falling under the executive branch of government, the legislature may find in its creation
such a significant public purpose as to be accorded a degree of independence from the
executive department. This may especially hold true for quasi-judicial agencies tasked with
determining competing claims lodged by private persons against the executive department. In
the United States, the Supreme Court has upheld the authority of Congress "in creating
quasi-legislative or quasi-judicial agencies, to require them to act in the discharge of their
duties independently of executive control and that the authority includes, as an appropriate
incident, power to fix the period during which they shall continue in office, and to forbid their
removal except for cause in the meantime."83

Unlike the "necessary and proper" clause of the U.S. Constitution,84 there is no express
characterization in our Constitution as to what laws our legislature should enact. This should
not dissuade the Court from recognizing that Congress has the right to enact laws that are for
the public good, even if they impair the comfort of private citizens or the officials of
government. There are valid legislative purposes for insulating certain agencies of the State
from unfettered executive interference. Congress may create agencies under the executive
branch tasked with investigatory or fact-finding functions, and accord them a necessary
degree of independence by assuring tenure to its members, for example. I submit that such
prerogative of Congress is aligned with the principle of checks and balances, under which the
legislature is empowered to prescribe standards and impose limitations in the exercise of
powers vested or delegated to the President. The ruling in the majority would sadly impair the
right of the legislature to impart public offices it creates with safeguards that ensure
independence from executive interference should Congress deem that such independence
serves a necessary public purpose.

The implications are similarly ruinous to the independent corporate personality of GOCCs as
determined and fleshed out by Congress. Their charters are legislative enactments beyond
the pale of the President to amend or repeal. In effect, there is a seeming new rule that
the President may ignore or countermand statutory limitations contained in the
charters of GOCCs. The President may thus abolish chartered GOCCs at whim, appoint
persons Congress may have deemed as unqualified to positions in the GOCC, alter the
corporate purposes for which the GOCC was established, all in the guise of executive
control. Executive control may similarly be justified to alter or deprive statutory rights
which may have been vested by Congress to private persons via the corporate charter.
The power of Congress to charter government corporations would be rendered
worthlessan intent hardly justified by the Constitution, which allocated the power to
create GOCCs to Congress.85

CCP Charter a Means of Promoting

An Autonomous Policy on the Arts
Odd as the structure of the CCP may be, its atypical nature was not enacted for the sake of
uniqueness, but for laudable public purposes which the Court should acknowledge. The CCP
Charter, apart from recognizing the CCP's corporate personality, goes as far as mandating
that the CCP "enjoy[s] autonomy of policy and operation."86 While the inherent right of
Congress to create public offices in general, and specifically to charter GOCCs sufficiently
justifies the constitutionality of Section 6 of the CCP Charter. Still, if it is necessary to inquire
into the public purpose for prescribing the unique setup of the CCP, I submit that the
mandated autonomy of the CCP is in accord with constitutional principles that should be
upheld and promoted.

The Constitution provides that "arts and letters shall enjoy the patronage of the State"87 and
"[t]he state shall foster the preservation, enrichment, and dynamic evolution of a Filipino
national culture based on the principle of unity in diversity in a climate of free artistic and
intellectual expression."88 More crucially, artistic and intellectual expression is
encompassed in free expression guaranteed by the Bill of Rights.89 Clearly, art and culture, in
constitutional contemplation, is not the product of collectivist thought like the prescribed social
realism in Stalin's Soviet Union, but of free individual expression consonant to the democratic
ideal.

The assurance of policy and operational autonomy on the CCP is aligned with these
constitutional purposes. Government-sponsored art is susceptible to executive diktat,
especially to countermand unpopular art or to dilute its potency to the point of innocuousness.
Indeed, executive control left unhampered could allow the executive branch to impose its own
notions of what art and culture should be, and to block the art forms that do not conform to its
vision. Given the paramount constitutional protection guaranteed to artistic expression, such
executive interference would contravene constitutional rights. Such interference could be
enforced by the executive through a Board of Directors whose subservience could be
guaranteed by their staying in office solely by pleasure of the President. Even without the
autonomy granted to the CCP in its charter, the CCP as a government agency would still be
precluded from denigrating any person's right to free expression. But the fact that the
legislative charter did put into operation safeguards that promote a climate of artistic
independence should be lauded and upheld as within the prerogative of the legislature to
enact. There is no higher public purpose in the formulation of laws than to promote
constitutional values.

I could not improve on the following disquisition of Justice Puno on the important role the CCP
has played in our development as a nation:

The CCP Complex is the only area in the Philippines that is fully devoted to the growth and
propagation of arts and culture. It is the only venue in the country where artists, Filipino and
foreign alike, may express their art in its various forms, be it in music, dance, theater, or in the
visual arts such as painting, sculpture and installation art or in literature such as prose, poetry
and the indigenous oral and written literary forms. The theaters and facilities of the Complex
have been utilized for the staging of cultural presentations and for the conduct of lectures and
demonstrations by renowned visiting artists. The wide open spaces of the Complex are the
only open spaces in Metropolitan Manila that have been used to accommodate huge crowds
in cultural, artistic and even religious events.

But the fulfillment of CCP's mandate did not start and end in Manila Bay. The CCP, through its
Board of Trustees, has reached out to the provinces through programs, scholarships and
national competitions for young artists. It has helped young artists hone their craft and
develop their creativity and ingenuity. It has also exposed the Filipino artists to foreign art and
advanced instruction, and thereby develop world-class artists, earning for the Philippines the
respect and admiration of other countries. The CCP has likewise exposed the ordinary
Filipino to the national culture. It has enhanced public interest in Philippine art in various forms,
in our history, in our indigenous and modern culture, and at the same time, enriched us with
the culture of other countries. The CCP has indeed emerged as a dynamic force in the
promotion of the country's artistic and cultural heritage and the development of new and
modern art forms. Through the years, it has helped raise the Filipino consciousness to our
nationhood, and in the process, inculcated love for our country The state recognizes the
vital role arts and culture play in national development. Indeed, a nation that would give up its
cultural patrimony in exchange for economic and material pursuits cannot but be doomed as a
"people without a soul."90 The Cultural Center of the Philippines has helped us capture this
"soul."91

Art thrives within an atmosphere of free thought. The CCP Charter, by ensuring political and
operational autonomy, ferments expression free from prior restraint or subsequent
punishment from the executive department. There is a constitutional purpose to the
independence attendant to the unique corporate structure of the CCP. There is constitutional
authority for the legislature to charter a government corporation with reasonable safeguards
of independence from the executive branch. And there is a constitutional duty for the
President to obey and execute the laws enacted by Congress.

Conclusion

The ruling of the Court today is boon for those quarters which wish to concede to the
presidency as much power as there can be. Sadly, it comes at the expense of the
time-honored prerogative of Congress to legislate laws. The power of Congress to enact
legislative charters with any sort of restrictions that would be enforced is now severely put in
doubt. The power of Congress to fix the terms of the offices it creates is now controvertible.
The President has been given the green light to remove at will officials whose terms of offices
are set by law, without regard to the constitutional guarantee of security of tenure to these
officials. All these wrought simply because for the majority, the CCP Board of Trustees
somehow transubstantiated itself into the CCP itself.

I have consistently advocated a generous interpretation of presidential authority, owing to my

firm belief in the potency of the inherent and residual powers implicit in the highest office of
the land.92 Still, the Constitution is allergic to an omnipotent presidency, and thus, the law is
the limit. This is a live tiger that the majority has set loose today, one utterly capable of
inflicting great pain on the delicate balance that safeguards the separation of powers.

DANTE O. TINGA
Associate Justice

Footnotes

1
See Section 2 of PD 15.

2
PD 15, Sec. 2(b).

3
Id., Sec. 2(c) to (e).
4
Id., Sec. 3 in relation to Sec. 6.

5
Id.

6
Zenaida R. Tantoco had expressed "utter lack of interest" in the case since she did not take
her oath of office or assumed the position of CCP trustee at any time.

7
Penned by Associate Justice Conchita Carpio Morales (now Associate Justice of this Court),
with Associate Justices Artemon D. Luna and Bernardo P. Abesamis, concurring.

8
Rollo (G.R. No. 139554), pp. 100-101.

9
Later amended by Presidential Decree Nos. 179, 1444, 1815, 1825, and Executive Order No.
1058 dated 10 October 1985.

10
CA rollo, p. 331-A.

11
Id.

12
Id.

13
Rollo (G.R. No. 139554), pp. 28-31.

14
Rollo (G.R. No. 139565), p. 19.

15
Rollo (G.R. No. 139554), p. 714

16
Joya v. Presidential Commission on Good Government, G.R. No. 96541, 24 August 1993,
225 SCRA 568.

17
Id.

18
Id.

19
The requisites before courts will assume jurisdiction over a constitutional question are (1)
there must be an actual case or controversy involving a conflict of rights susceptible of judicial
determination; (2) the constitutional question must be raised by a proper party; (3) the
constitutional question must be raised at the earliest opportunity; and (4) the resolution of the
constitutional question must be necessary to the resolution of the case. (Board of Optometry v.
Hon. Colet, 328 Phil. 1187 [1996])

20
See Calderon v. Carale, G.R. No. 91636, 23 April 1992, 208 SCRA 254.

21
Endencia v. David, 93 Phil. 696 (1953).

22
See Santos v. Macaraig, G.R. No. 94070, 10 April 1992, 208 SCRA 74.

23
There is a fifth group of officers whose appointments are vested by the Constitution in the
Supreme Court and the Constitutional Commissions. (Constitution, Art. VIII, Sec. 5[6] and Art.
IX-A, Sec. 4)
24
It reads:

The President shall nominate and, with the consent of a 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 colonel or naval captain
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 departments. (Emphasis supplied)

25
II J. Bernas, The Constitution of the Republic of the Philippines, A Commentary 194-195
(1988).

26
THE PRESIDENT. Commissioner Bennagen is recognized.

MR. BENNAGEN. Anterior amendment on page 8, line 1, Madam President, which I indicated
during the period of interpellations regarding the use of the word "inferior." I understand from
the Commissioners that we can delete "inferior" without sacrificing its meaning.

MR. REGALADO. So line 1 would now read: "of OTHER officers LOWER IN RANK."

MR. BENNAGEN. Thank you, Madam President.

MR. REGALADO. The Committee accepts the amendment.

THE PRESIDENT. The Committee has accepted the amendment.

Is there any objection to change "inferior" to "OTHER officers "LOWER IN RANK"?

(Silence) The Chair hears none; the amendment is approved.

Let us go back to the amendment of Commissioner de los Reyes.

MR. DE LOS REYES. Does the Committee accept my proposed amendment?

MR. REGALADO. The amendment of Commissioner de los Reyes is to change "courts" to

"MEMBERS OF THE JUDICIARY."

FR. BERNAS. It is a little vague if we just say "in the MEMBERS OF THE JUDICIARY"
because we have collegiate and noncollegiate bodies. So for instance, if we take the case of
the Supreme Court when we say "MEMBERS OF THE JUDICIARY," which of the members of
the Supreme Court would have the appointing authority?

MR. DE LOS REYES. But the point is that the first sentence refers to the President alone; it
does not say "executive." And the last portion refers to "the heads of departments" because
these are persons who appoint, but the middle portion refers to "courts" which do not appoint.
How can the courts appoint?

FR. BERNAS. How about "in the HEADS OF courts"?

THE PRESIDENT. Commissioner Concepcion is here now, may we seek his opinion on this
matter? May we ask Commissioner Regalado to kindly inform Commissioner Concepcion of
the issue.

Commissioner Concepcion is recognized.

MR. CONCEPCION. I suppose that insofar as collegiate courts are concerned, certain rules
will be adopted by the Supreme Court. Under the present setup, court employees are actually
appointed by the Chief Justice of the Supreme Court. I suppose in this case, when we speak
of courts, it refers to the judges presiding in courts. After all, the presiding judge acts in behalf
of the court. These are court employees, and whoever presides performs the administrative
functions corresponding to his particular station. Insofar as clerks of courts are concerned,
generally, they are appointed by the Supreme Court in agreement with collegiate courts
through the passage of a resolution that is deemed to be an appointment by the court
concerned. So I think we can retain the word "courts" since it has been used for so long in the
past, and it has an established connotation.

MR. DE LOS REYES. I submit if that is the explanation, although I find the wordings
inconsistent. It refers to the President and heads of departments as officers, but it does not
say "or in the Executive Department." The middle portion refers to courts, and I do not think
the courts can appoint. But if the Committee wants to retain this in this particular Article, I
submit.

Thank you, Madam President.

THE PRESIDENT. Thank you.

Is Commissioner de los Reyes insisting on his amendment?

MR. DE LOS REYES. I am not insisting, Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. On page 8, line 3, change the period (.) after "departments" to a comma (,) and
add AGENCIES, COMMISSIONS, OR BOARDS. This is just to complete the enumeration in
the 1935 Constitution from which this additional clause was taken.

THE PRESIDENT. Does the Committee accept?

MR. SARMIENTO. Just a point of clarification, Madam President. I think this was taken from
the 1973 Constitution. The 1935 Constitution speaks only of "heads of departments."

MR. DAVIDE. Yes, it is the 1973 Constitution rather.

THE PRESIDENT. Does the Committee need time to consider?

MR. SUMULONG. We accept the amendment.

MR. ROMULO. The Committee has accepted the amendment, Madam President.
THE PRESIDENT. Is there any objection to the addition of the words "AGENCIES,
COMMISSIONS, OR BOARDS" on line 3, page 8? (Silence) The Chair hears none; the
amendment is approved. (II Record, Constitutional Commission 522-523 [31 July 1986])

27
For the role of the deliberations of the Constitutional Commission in determining the
framers' intent, see Development Bank of the Philippines v. COA, 424 Phil. 411 (2002).

28
Bermudez v. Executive Secretary Torres, 370 Phil. 769 (1999).

29
Section 5, Article VIII of the 1987 Constitution provides:

The Supreme Court shall have the following powers:

xxxx

(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service
Law.

30
Section 4, Article IX-A of the 1987 Constitution provides: "The Constitutional Commissions
shall appoint their officials and employees in accordance with law."

31
See note 26.

32
Constitution (1935), Art. VII, Sec. 10(3).

33
Constitution (1973), Art. VII, Sec. 10.

34
Supra note 26 at 523.

35
National Electrification Administration v. COA, 427 Phil. 464 (2002).

36
Id.

37
Department of Agrarian Reform Adjudication Board (DARAB) v. Lubrica, G.R. No. 159145,
29 April 2005, 457 SCRA 800; San Miguel Corporation v. Secretary of Labor, No. L-39195, 16
May 1975, 64 SCRA 56.

38
Constitution, Art. X, Sec. 2.

39
Id., Secs. 3 and 5.

40
Id., Sec. 4.

41
Administrative Code, Book III, Title II, Chapter 8, Section 23.

Mondano v. Silvosa, 97 Phil. 143 (1955); Section 38, paragraph 1, Chapter 7, Book IV of the
42

Administrative Code of 1987 provides:

Supervision and Control. Supervision and control shall include authority to act directly
whenever a specific function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve, reverse or modify acts
and decisions of subordinate officials or units; determine priorities in the execution of plans
and programs; and prescribe standards, guidelines, plans and programs. Unless a different
meaning is explicitly provided in the specific law governing the relationship of particular
agencies, the word "control" shall encompass supervision and control as defined in this
paragraph. (Emphasis supplied)

43
Constitution, Art. VII, Sec. 1; Villena v. Secretary of the Interior, 67 Phil. 451 (1939).

44
Supra note 10.

45
"Nature. The corporation hereby created shall be a non-municipal public corporation. Its
property, real and personal, shall belong to and be managed exclusively by the corporation for
the benefit of the Filipino people. Any income that may be derived from its projects and
operations and any contributions it may receive shall be invested in a Cultural Development
Fund set up to attain the objectives of this Act, or utilized for such purposes as its governing
board may decide upon, consistent with the purposes herein provided. It shall enjoy
autonomy of policy and operation but may seek the assistance and cooperation of various
government offices in pursuit of its objectives." (Emphasis supplied)

TINGA, J.

1
Issued by President Ferdinand Marcos on 5 October 1972 in the exercise of his legislative
powers during martial law. The legislative character of the CCP charter is beyond dispute,
even by the majority.

2
See Sec. 3, P.D No. 15, as amended (CCP Charter).

3
Per Decision dated 14 May 1999 in CA G.R. SP No. 50272, penned by Justice (now
Supreme Court Justice) Conchita Carpio-Morales, concurred in by Justices Artemon Luna
and Bernardo Abesamis.

4
Section 6, CCP Charter.

5
Infra.

6
Decision, infra.

7
Section 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.

8
Decision, infra.

9
Those officers whose appointment is vested to the President by the Constitution include the
Chairman and Commissioners of the three constitutional commissions (Section 1(2), Article
IX-B; Section 1(2), Article IX-C; Section 1(2), Article IX-D), the members of the Judicial and
Bar Council (Section 8(2), Article VIII), the Ombudsman and his Deputies (Section 9, Article
XI), members of the regional consultative commissions (Section 18, Article X), and formerly,
sectoral representatives (Section 7, Article XVIII). See also Sarmiento v. Mison, G.R. No.
L-79974, 17 December 1987, 156 SCRA 549.
10
Decision, infra.

11
Decision, infra.

12
For emphasis and contrast, in this disquisition the term board used in the Appointments
Clause is spelled with a capital letter "B" (Board) while the board of trustees/directors in
government corporations is spelled with a small letter "b" (board).

13
See Section 16, Article XII, Constitution.

14
See Section 2(4), Administrative Code of 1987.

Black's Law Dictionary, p. 618; citing Commissioners of State Ins. Fund v. Dinowitz, 179
15

Misc. 278, 39 N.Y.S.2d 34, 38.

16
Ibid.

17
Nosictur a sociis.

18
"The rule is too well-settled to require any citation of authorities that the word "or" is a
disjunctive term signifying dissociation and independence of one thing from each of the other
things enumerated unless the context requires a different interpretation." People v. Martin,
G.R. No. 33487, 31 May 1971, 39 SCRA 340, 346.

19
"It is to be remembered that the law makes the proprietor, lessee or operator, of the
amusement place liable for the amusement tax, the three tax payers being connected by the
disjunctive conjunction "or," thereby positively implying that the tax should be paid either by
the proprietor, the lessee, or the operator, as the case may be, singly and not by all at one
and the same time." CIR v. Manila Jockey Club, Inc., 99 Phil. 289, 296 (1956).

20
Supra note 4.

21
G.R. No. 139554 rollo, p. 39.

22
Section 8, CCP Charter. Emphasis supplied.

23
See G.R. No. 139554, rollo, p. 211. Emphasis supplied.

See J. Campos, Jr. and M.C. Campos, I The Corporation Code: Comments, Notes and
24

Selected Cases, 1990 ed., at 340.

25
See Vicente v. Geraldez, L-32473 & 32483, 31 July 1973, 52 SCRA 210, 227; citing Board
of Liquidators v. Kalaw, L-18805, Aug. 14, 1967, 20 SCRA 987.

26
"Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is
to be adopted." See CIR v. TMX Sales, G.R. No. 83736, 15 January 1992, 205 SCRA 184,
188; Cosico, Jr. v. NLRC, 338 Phil. 1080, 1089; Southern Cross Cement Corporation v.
PHILCEMCOR, G.R. No. 158540, 8 July 2004, 434 SCRA 65, 89.

27
Supra note 21.
28
Ibid.

29
Decision, infra. I agree with the Decision that the authority of Congress to authorize
appointments by the heads of departments, commissions, agencies or bureaus pertain only to
those junior officers within their respective enclaves. Thus, the Chairperson of the National
Police Commission cannot be authorized by law to appoint junior officials of the Dangerous
Drugs Board.

30
Edmond v. U.S., 520 U.S. 651 (1997).

31
338 Phil. 507 (1997).

32
Id. at 520.

33
Ibid.

34
See Section 5(6), Article VIII, Constitution.

35
See Section 2, Article IX-C and Section 2, Article IX-D, Constitution.

36
See Malonso v. Principe, A.C. No. 6289, 16 December 2004, 447 SCRA 1, 12-13; which
discussed the collegial nature of the IBP Board of Governors:

"Relevantly, Sec. 6, Rule 139-A of the Rules of Court provides in part:

Sec. 6. Board of Governors. the Integrated Bar shall be governed by a Board of Governors.
Nine Governors shall be elected by the House of Delegates from the nine Regions on the
representation basis of one Governor from each Region. . . .

xxx xxx xxx

The Board shall meet regularly once every three months, on such date and at such time and
place as it shall designate. A majority of all the members of the Board shall constitute a
quorum to do business. . . .

From these provisions, it is clear that before a lawyer may be suspended from the practice of
law by the IBP, there should be (1) a review of the investigator's report; (2) a formal voting;
and (3) a vote of at least five (5) members of the Board. The rationale for this rule is simple:
a decision reached by the Board in compliance with the procedure is the official
decision of the Board as a body and not merely as the collective view of the individual
members thereof. This is in keeping with the very nature of a collegial body which
arrives at its decisions only after deliberation, the exchange of views and ideas, and
the concurrence of the required majority vote. (Ibid, at 12-13; citing Consing v. Court of
Appeals, G.R. No. 78272, 29 August 1989, 177 SCRA 14, 22. Emphasis supplied)

19 C.J.S. 33 (1940 ed.), citing Mcwhirter v. Washington Royalties Co., 152 A. 220, 17 Del.
37

Ch. 243; In re: Vicksburg Bridge & Terminal Co., D.C. Miss., 22 F. Supp. 490.

38
S. Bainbridge, Corporation Law and Economics (2002 ed.), p. 230.

39
See 8.08, Model Corporation Business Act.
40
See Conde v. National Tobacco Corp., 110 Phil. 717, 721 (1961); citing 6 C.J.S. 89. See
also H. de Leon and H. de Leon Jr., The Law on Public Officers and Election Law, 3rd.ed.,
1997, at 48.

41
F. MechEm, A Treatise on the Law of Public Offices and Officers, 1890 ed., at 61; citing
Stocking v. State, 7 Ind. 326.

42
Supra note 4.

43
Ibid.

44
See "Division of Corporations, State of Delaware," http://www.state.de.us/corp/
default.shtml (Last visited, 18 July 2006).

See 141(b), Subchapter IV. Directors and Officers, Chapter 1. General Corporation, Title 8.
45

Corporations, Delaware Code.

46
Id.

47
See Section 14, Corporation Code, which fixes the number of directors or trustees as not
less than five (5), and not more than fifteen (15).

48
See Section 4, Corporation Code.

49
See Section 29, Corporation Code.

50
See Section 3, CCP Charter.

51
See Section 17, Article VII, Constitution; infra.

52
See Section 5, Article VII.

53
Myers v. United States, 272 U.S. 52, 119 (1926)

54
See Humphrey's Executor v. United States, 295 U.S. 602 (1935); Wiener v. United States,
357 U.S. 349 (1958)

55
See Section 2(3), Article IX-B, Constitution.

56
See J. Bernas, The Intent of the 1986 Constitution Writers, 1995 ed., at 596-98. The
exclusion of unchartered GOCCs from civil service coverage was in apparent adverse
reaction to the Court's ruling inNational Housing Authority v. Juco, G.R. No. 64313, 17
January 1985, 134 SCRA 172, that the Civil Service covered all GOCCs irrespective of the
manner of their creation. NHA v. Juco, id., at 182.

57
118 Phil. 1468. (1963)

58
Id. at 1472.

59
Id. at 1477.
60
Id. at 1478. Emphasis supplied.

61
Id. at 1479-80. Emphasis supplied.

62
Id. at 1480.

63
See Section 6, Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987.

64
Section 6(2), Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987.

65
Section 9, Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987. A similar
provision may be found in Section 6, Pres. Decree No. 807.

66
Section 2(2), Article IX(B), Constitution.

67
Section 46, Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987.

68
Mechem, supra note 41, at 284.

69
H. de Leon and H. de Leon Jr., supra note 40, at 338; citing 63 Am. Jur. 2d at 826-827.

70
Section 6(b), CCP Charter.

71
See Section 16, Article XII, Constitution.

72
See Sec. 6, Corporation Code.

73
See Sec. 6, Corporation Code.

74
Castillo v. Pajo, 103 Phil. 515, 519 (1958); Llanto v. Dimaporo, et al., G.R. No. L-21905, 31
March 1966, 16 SCRA 599, 604; U.P. Board of Regents v. Razul, G.R. No. 91551, 16 August
1991, 200 SCRA 685, 693.

75
De la Llana v. Alba, G.R. No. L-57883, 12 March 1982, 112 SCRA 294, 345, J. Barredo,
concurring.

76
Ople v. Torres, G.R. No. 127685, 23 July 1998, 293 SCRA 141, 150.

77
Phividec v. Capitol Steel, G.R. No. 155692, 23 October 2003, 414 SCRA 327, 332-333.

78
See H. de Leon and H. de Leon Jr., supra note 40, at 337.

79
Section 38, paragraph 1, Chapter 7, Book IV, Administrative Code of 1987.

80
See Gonzales v. Henchanova, 118 Phil. 1065, 1089, J. Barrerra, concurring.

81
J. Bernas, The Constitution of the Republic of the Philippines, 2003 ed., at 864.

82
Id. at 863.
83
Humphrey's Executor v. United States, 295 U.S. 602, 629. (1935).

84
See Section 8(18), Article I, U.S. Constitution.

85
See Section 16, Article XII, which reads: "Government owned or controlled corporations
may be created or established by special charters in the interest of the common good and
subject to the test of economic viability." A charter has been defined as an act of legislature
creating a business corporation, or creating and defining the franchise of a corporation." See
Black's Law Dictionary, p. 236.

86
See Section 3, CCP Charter.

87
See Section 15, Article XIV, Constitution.

88
See Section 14, Article XIV, Constitution.

89
See Section 4, Article III, Constitution.

90
Republic v. Court of Appeals, infra, citing El Filibusterismo, Guerrero translation, p. 49
[1965].

91
Republic v. Court of Appeals, 359 Phil. 530, 667-668 (1998), J. Puno, concurring.

92
See Sanlakas v. Executive Secretary, G.R. No. 159085, 3 February 2004, 421 SCRA 656;
Separate Opinion, La Bugal-B'laan Tribal Association, Inc. v. Ramos, G.R. No. 127882, 1
December 2004, 445 SCRA 1, 435-463; Constantino v. Cuisia, G.R. No. 106064, 13 October
2005, 472 SCRA 505; Dissenting Opinion,David v. Ermita, G.R. Nos. 171396, et al., 3 May
2006.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 91636 April 23, 1992

PETER JOHN D. CALDERON, petitioner,

vs.
BARTOLOME CARALE, in his capacity as Chairman of the National Labor Relations
Commission, EDNA BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G. LADRIDO III,
MUSIB M. BUAT, DOMINGO H. ZAPANTA, VICENTE S.E. VELOSO III, IRENEO B.
BERNARDO, IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO B. PUTONG,
ROGELIO I. RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN and OSCAR N.
ABELLA, in their capacity as Commissioners of the National Labor Relations
Commission, and GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.

PADILLA, J.:

Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:

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

The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress. 1

The power of the Commission on Appointments (CA for brevity) to confirm appointments,
contained in the aforequoted paragraph 1 of Sec. 16, Art. VII, was first construed in Sarmiento
III vs. Mison 2 as follows:

. . . it is evident that the position of Commissioner of the Bureau of Customs (a bureau head)
is not one of those within the first group of appointments where the consent of the
Commission on Appointments is required. As a matter of fact, as already pointed out, while
the 1935 Constitution includes "heads of bureaus" among those officers whose appointments
need the consent of the Commission on Appointments, the 1987 Constitution, on the other
hand, deliberately excluded the position of "heads of bureaus" from appointments that need
the consent (confirmation) of the Commission on Appointments.

. . . Consequently, we rule that the President of the Philippines acted within her constitutional
authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of
Customs, without submitting his nomination to the Commission on Appointments for
confirmation. . . .

. . . In the 1987 Constitution, however, as already pointed out, the clear and expressed intent
of its framers was to exclude presidential appointments from confirmation by the Commission
on Appointments, except appointments to offices expressly mentioned in the first sentence of
Sec. 16, Art. VII. Consequently, there was no reason to use in the third sentence of Sec. 16,
Article VII the word "alone" after the word "President" in providing that Congress may by law
vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the
heads of departments, because the power to appoint officers whom he (the president) may be
authorized by law to appoint is already vested in the President, without need of confirmation
by the Commission on Appointments, in the second sentence of the same Sec. 16, Article
VII." (emphasis supplied)

Next came Mary Concepcion Bautista v. Salonga, 3 this time involving the appointment of the
Chairman of the Commission on Human Rights. Adhering to the doctrine in Mison, the Court
explained:

. . . Since the position of Chairman of the Commission on Human Rights is not among the
positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation of the Commission on
Appointments, it follows that the appointment by the President of the Chairman of the CHR is
to be made without the review or participation of the Commission on Appointments. To be
more precise, the appointment of the Chairman and Members of the Commission on Human
Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and
Members of the Civil Service Commission, the Commission on Elections and the Commission
on Audit, whose appointments are expressly vested by the Constitution in the president with
the consent of the Commission on Appointments. The president appoints the Chairman and
Members of The Commission on Human Rights pursuant to the second sentence in Section
16, Art. VII, that is, without the confirmation of the Commission on Appointments because
they are among the officers of government "whom he (the President) may be authorized by
law to appoint." And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the
President to appoint the Chairman and Members of the Commission on Human Rights.

Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, et al. v. The
Commission on Constitutional Commissions, et al., 4 the power of confirmation of the
Commission on Appointments over appointments by the President of sectoral representatives in
Congress was upheld because:

. . . Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI
may be filled by appointment by the President by express provision of Section 7, Art. XVIII of
the Constitution, it is indubitable that sectoral representatives to the House of Representatives
are among the "other officers whose appointments are vested in the President in this
Constitution," referred to in the first sentence of Section 16, Art. VII whose appointments are
subject to confirmation by the Commission on Appointments.

From the three (3) cases above-mentioned, these doctrines are deducible:
1. Confirmation by the Commission on Appointments is required only for presidential
appointees mentioned in the first sentence of Section 16, Article VII, including, those officers
whose appointments are expressly vested by the Constitution itself in the president (like
sectoral representatives to Congress and members of the constitutional commissions of Audit,
Civil Service and Election).

2. Confirmation is not required when the President appoints other government officers whose
appointments are not otherwise provided for by law or those officers whom he may be
authorized by law to appoint (like the Chairman and Members of the Commission on Human
Rights). Also, as observed in Mison, when Congress creates inferior offices but omits to
provide for appointment thereto, or provides in an unconstitutional manner for such
appointments, the officers are considered as among those whose appointments are not
otherwise provided for by law.

Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442)
was approved. It provides in Section 13 thereof as follows:

xxx xxx xxx

The Chairman, the Division Presiding Commissioners and other Commissioners shall all be
appointed by the President, subject to confirmation by the Commission on Appointments.
Appointments to any vacancy shall come from the nominees of the sector which nominated
the predecessor. The Executive Labor Arbiters and Labor Arbiters shall also be appointed by
the President, upon recommendation of the Secretary of Labor and Employment, and shall be
subject to the Civil Service Law, rules and regulations. 5

Pursuant to said law (RA 6715), President Aquino appointed the Chairman and
Commissioners of the NLRC representing the public, workers and employers sectors. The
appointments stated that the appointees may qualify and enter upon the performance of the
duties of the office. After said appointments, then Labor Secretary Franklin Drilon issued
Administrative Order No. 161, series of 1989, designating the places of assignment of the
newly appointed commissioners.

This petition for prohibition questions the constitutionality and legality of the permanent
appointments extended by the President of the Philippines to the respondents Chairman and
Members of the National Labor Relations Commission (NLRC), without submitting the same
to the Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code
as amended by said RA 6715.

Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the
presumption of validity. RA 6715 is not, according to petitioner, an encroachment on the
appointing power of the executive contained in Section 16, Art. VII, of the Constitution, as
Congress may, by law, require confirmation by the Commission on Appointments of other
officers appointed by the President additional to those mentioned in the first sentence of
Section 16 of Article VII of the Constitution. Petitioner claims that
the Mison and Bautista rulings are not decisive of the issue in this case for in the case at bar,
the President issued permanent appointments to the respondents without submitting them to
the CA for confirmation despite passage of a law (RA 6715) which requires the confirmation
by the Commission on Appointments of such appointments.

The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor
Code transgressesSection 16, Article VII by expanding the confirmation powers of the
Commission on Appointments without constitutional basis. Mison and Bautista laid the issue
to rest, says the Solicitor General, with the following exposition:

As interpreted by this Honorable Court in the Mison case, confirmation by the Commission on
Appointments is required exclusively for the heads of executive departments, ambassadors,
public ministers, consuls, officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in the President by the Constitution, such
as the members of the various Constitutional Commissions. With respect to the other officers
whose appointments are not otherwise provided for by the law and to those whom the
President may be authorized by law to appoint, no confirmation by the Commission on
Appointments is required.

Had it been the intention to allow Congress to expand the list of officers whose appointments
must be confirmed by the Commission on Appointments, the Constitution would have said so
by adding the phrase "and other officers required by law" at the end of the first sentence, or
the phrase, "with the consent of the Commission on Appointments" at the end of the second
sentence. Evidently, our Constitution has significantly omitted to provide for such additions.

The original text of Section 16 of Article VII of the present Constitution as embodied in
Resolution No. 517 of the Constitutional Commission reads as follows:

"The President shall nominate and, with the consent of the Commission on Appointments,
shall appoint the heads of the executive departments and bureaus, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of captain or commander,
and all other officers of the Government whose appointments are not herein otherwise
provided for by law, and those whom he may be authorized by law to appoint. The Congress
may by law vest the appointment of inferior officers in the President alone, in the courts or in
the heads of the department."

Three points should be noted regarding sub-section 3 of Section 10 of Article VII of the 1935
Constitution and in the original text of Section 16 of Article VII of the present Constitution as
proposed in Resolution No. 517.

First, in both of them, the appointments of heads of bureaus were required to be confirmed by
the Commission on Appointments.

Second, in both of them, the appointments of other officers, "whose appointments are not
otherwise provided for by law to appoint" are expressly made subject to confirmation by the
Commission on Appointments. However, in the final version of Resolution No. 517, as
embodied in Section 16 of Article VII of the present Constitution, the appointment of the above
mentioned officers (heads of bureaus; other officers whose appointments are not provided for
by law; and those whom he may be authorized by law to appoint) are excluded from the list of
those officers whose appointments are to be confirmed by the Commission on Appointments.
This amendment, reflected in Section 16 of Article VII of the Constitution, clearly shows the
intent of the framers to exclude such appointments from the requirement of confirmation by
the Commission on Appointments.

Third, under the 1935 Constitution the word "nominate" qualifies the entire Subsection 3 of
Section 10 of Article VII thereof.

Respondent reiterates that if confirmation is required, the three (3) stage process of
nomination, confirmation and appointment operates. This is only true of the first group
enumerated in Section 16, but the word nominate does not any more appear in the 2nd and
3rd sentences. Therefore, the president's appointment pursuant to the 2nd and 3rd sentences
needs no confirmation. 6

The only issue to be resolved by the Court in the present case is whether or not Congress
may, by law, require confirmation by the Commission on Appointments of appointments
extended by the president to government officers additional to those expressly mentioned in
the first sentence of Sec. 16, Art. VII of the Constitution whose appointments require
confirmation by the Commission on Appointments.

To resolve the issue, we go back to Mison where the Court stated:

. . . there are four (4) groups of officers whom the President shall appoint. These four (4)
groups, to which we will hereafter refer from time to time, are:

First, the heads of the executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided
for by law;

Third, those whom the president may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the
President alone. 7

Mison also opined:

In the course of the debates on the text of Section 16, there were two (2) major changes
proposed and approved by the Commission. These were (1) the exclusion of the
appointments of heads of bureaus from the requirement of confirmation by the Commission
on Appointments; and (2) the exclusion of appointments made under the second sentence of
the section from the same requirement. . . .

The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose
appointments are not otherwise provided for by law and those whom the President may be
authorized by law to appoint.

Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of
Section 16, Article VII of the Constitution, more specifically under the "third groups" of
appointees referred to in Mison, i.e. those whom the President may be authorized by law to
appoint. Undeniably, the Chairman and Members of the NLRC are not among the officers
mentioned in the first sentence of Section 16, Article VII whose appointments requires
confirmation by the Commission on Appointments. To the extent that RA 6715 requires
confirmation by the Commission on Appointments of the appointments of respondents
Chairman and Members of the National Labor Relations Commission, it is unconstitutional
because:

1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding
thereto appointments requiring confirmation by the Commission on Appointments; and
2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by
imposing the confirmation of the Commission on Appointments on appointments which are
otherwise entrusted only with the President.

Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is

a judicial function. The Court respects the laudable intention of the legislature. Regretfully,
however, the constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor
Code, insofar as it requires confirmation of the Commission on Appointments over
appointments of the Chairman and Member of the National Labor Relations Commission
(NLRC) is, as we see it, beyond redemption if we are to render fealty to the mandate of the
Constitution in Sec. 16, Art. VII thereof.

Supreme Court decisions applying or interpreting the Constitution shall form part of the legal
system of the Philippines. 8 No doctrine or principle of law laid down by the Court in a decision
rendered en banc or in division may be modified or reversed except by the Court sitting en banc. 9

. . . The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the
date that law was originally passed, since this Court's construction merely establishes the
contemporaneous legislative intent that the law thus construed intends to effectuate. The
settled rule supported by numerous authorities is a restatement of the legal maxim "legis
interpretado legis vim obtinent" the interpretation placed upon the written law by a
competent court has the force of law.10

The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16
consistently in one manner. Can legislation expand a constitutional provision after the
Supreme Court has interpreted it?

In Endencia and Jugo vs. David, 11 the Court held:

By legislative fiat as enunciated in Section 13, Republic Act No. 590, Congress says that
taxing the salary of a judicial officer is not a decrease of compensation. This is a clear
example of interpretation or ascertainment of the meaning of the phrase "which shall not be
diminished during their continuance in office," found in Section 9, Article VIII of the
Constitution, referring to the salaries of judicial officers.

xxx xxx xxx

The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act
declaratory of what the law was before its passage, so as to give it any binding weight with the
courts. A legislative definition of a word as used in a statute is not conclusive of its meaning as
used elsewhere; otherwise, the legislature would be usurping a judicial function in defining a
term. (11 Am. Jur., 914, emphasis supplied).

The legislature cannot, upon passing law which violates a constitutional provision, validate it
so as to prevent an attack thereon in the courts, by a declaration that it shall be so construed
as not to violate the constitutional inhibition. (11 Am., Jur., 919, emphasis supplied).

We have already said that the Legislature under our form of government is assigned the task
and the power to make and enact laws, but not to interpret them. This is more true with regard
to the interpretation of the basic law, the Constitution, which is not within the sphere of the
Legislative department. If the Legislature may declare what a law means, or what a specific
portion of the Constitution means, especially after the courts have in actual case ascertained
its meaning by interpretation and applied it in a decision, this would surely cause confusion
and instability in judicial processes and court decisions. Under such a system, a final court
determination of a case based on a judicial interpretation of the law or of the Constitution may
be undermined or even annulled by a subsequent and different interpretation of the law or of
the Constitution by the Legislative department that would be neither wise nor desirable, being
clearly violative of the fundamental principles of our constitutional system of government,
particularly those governing the separation of powers. 14(Emphasis supplied)

Congress, of course, must interpret the Constitution, must estimate the scope of its
constitutional powers when it sets out to enact legislation and it must take into account the
relevant constitutional prohibitions. 15

. . . The Constitution did not change with public opinion.

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

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

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

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

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

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

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

SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado,
Davide, Jr., Romero and Nocon, JJ., concur.

Bellosillo, J., took no part.

Separate Opinions

GUTIERREZ, JR., concurring:

When the issues in this petition were first raised in Sarmiento III v. Mison (156 SCRA 549
[1987]), I joined Justice Cruz in a dissent because I felt that the interpretation of Section 16,
Article VII by the majority of the Court results in absurd or irrational consequences. The
framers could not have intended what the majority ruled to be the meaning of the provision.
When the question was again raised in Bautista v. Salonga (172 SCRA 160 [1989]), I
reiterated my dissent and urged a re-examination of the doctrine stated in Sarmiento
v. Mison.

The issue is again before us. Even as I continue to believe that the majority was wrong in
the Sarmiento andBautista cases, I think it is time to finally accept the majority opinion as the
Court's ruling on the matter and one which everybody should respect. There will be no end to
litigation if, everytime a high government official is appointed without confirmation by the
Commission on Appointments, another petition is filed with this Court.

I, therefore, VOTE with the majority to DISMISS the PETITION.

CRUZ, J., dissenting:

I dissent on the basis of my dissent in Sarmiento v. Mison, which I believe should be

re-examined instead of being automatically re-affirmed simply because of its original adoption.
I do not believe we should persist in error on the ground merely of adherence to judicial
precedent, however unsound.

Separate Opinion

GUTIERREZ, JR., J., concurring:

When the issues in this petition were first raised in Sarmiento III v. Mison (156 SCRA 549
[1987]), I joined Justice Cruz in a dissent because I felt that the interpretation of Section 16,
Article VII by the majority of the Court results in absurd or irrational consequences. The
framers could not have intended what the majority ruled to be the meaning of the provision.
When the question was again raised in Bautista v. Salonga (172 SCRA 160 [1989]), I
reiterated my dissent and urged a re-examination of the doctrine stated in Sarmiento
v. Mison.
The issue is again before us. Even as I continue to believe that the majority was wrong in
the Sarmiento andBautista cases, I think it is time to finally accept the majority opinion as the
Court's ruling on the matter and one which everybody should respect. There will be no end to
litigation if, everytime a high government official is appointed without confirmation by the
Commission on Appointments, another petition is filed with this Court.

I, therefore, VOTE with the majority to DISMISS the PETITION.

CRUZ, J., dissenting:

I dissent on the basis of my dissent in Sarmiento v. Mison, which I believe should be

re-examined instead of being automatically re-affirmed simply because of its original adoption.
I do not believe we should persist in error on the ground merely of adherence to judicial
precedent, however unsound.

Footnotes

1 Sec. 16, Art. VII, 1987 Constitution.

2 G.R. No. 79974, 17 December 1987, 156 SCRA 549.

3 G.R. No. 86439, 13 April 1989, 172 SCRA 160.

4 G.R. No. 83216, 4 September 1989, 177 SCRA 259, 260.

5 Rollo, pp. 10-11.

6 Memorandum for respondents, Rollo, p. 8.

7 Supra at pp. 553-554.

10 Art. 8, New Civil Code of the Philippines.

11 Art. VII, Sec. 4(3), 1987 Constitution.

12 People vs. Jabinal, G.R. No. L-30061, 27 February 1974, 55 SCRA 607.

13 G.R. Nos. L-6355-56, 31 August 1953, 93 Phil. 699.

14 Ibid., pp. 701-702.

15 Swisher, Carl Brent. The Supreme Court in Modern Role, NYU Press, Inc., 1958, pp.
34-35.

16 Ibid., former Chief Justice Taney in Dred Scott vs. Sandford, 19 Howard 393, 407 (1857), p.
147.

17 Ibid., Justice Roberts in United States vs. Butler, 297 U.S. I, 62-63 (1936), p. 170.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 111243 May 25, 1994

JESUS ARMANDO A.R. TARROSA, petitioner,

vs.
GABRIEL C. SINGSON and HON. SALVADOR M. ENRIQUEZ III, respondents

Marlon B. Llaunder for petitioner.

QUIASON, J.:

This is a petition for prohibition filed by petitioner as a "taxpayer," questioning the appointment
of respondent Gabriel Singson as Governor of the Bangko Sentral Ng Pilipinas for not having
been confirmed by the Commission on Appointments. The petition seeks to enjoin respondent
Singson from the performance of his functions as such official until his appointment is
confirmed by the Commission on Appointments and respondent Salvador M. Enriquez,
Secretary of Budget and Management, from disbursing public funds in payment of the
salaries and emoluments of respondent Singson.

Respondent Singson was appointed Governor of the Bangko Sentral by President Fidel V.
Ramos on July 2, 1993, effective on July 6, 1993 (Rollo, p. 10).

Petitioner argues that respondent Singson's appointment is null and void since it was not
submitted for confirmation to the Commission on Appointments. The petition is anchored on
the provisions of Section 6 of R.A. No. 7653, which established the Bangko Sentral as the
Central Monetary Authority of the Philippines. Section 6, Article II of R.A. No. 7653 provides:

Sec. 6. Composition of the Monetary Board. The powers and functions of the Bangko Sentral
shall be exercised by the Bangko Sentral Monetary Board, hereafter referred to as the
Monetary Board, composed of seven (7) members appointed by the President of the
Philippines for a term of six (6) years.

The seven (7) members are:

(a) The Governor of the Bangko Sentral, who shall be the Chairman of the Monetary
Board. The Governor of the Bangko Sentral shall be head of a department and his
appointment shall be subject to confirmation by the Commission on Appointments. Whenever
the Governor is unable to attend a meeting of the Board, he shall designate a Deputy
Governor to act as his alternate: Provided, That in such event, the Monetary Board shall
designate one of its members as acting Chairman . . . (Emphasis supplied).
In their comment, respondents claim that Congress exceeded its legislative powers in
requiring the confirmation by the Commission on Appointments of the appointment of the
Governor of the Bangko Sentral. They contend that an appointment to the said position is not
among the appointments which have to be confirmed by the Commission on Appointments,
citing Section 16 of Article VII of the Constitution which provides that:

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

Respondents also aver that the Bangko Sentral has its own budget and accordingly, its
budgetary requirements are not subject to the provisions of the General Appropriations Act.

We dismiss the petition.

II

The instant petition is in the nature of a quo warranto proceeding as it seeks the ouster of
respondent Singson and alleges that the latter is unlawfully holding or exercising the powers
of Governor of the Bangko Sentral (Cf. Castro v. Del Rosario, 19 SCRA 196 [1967]). Such a
special civil action can only be commenced by the Solicitor General or by a "person claiming
to be entitled to a public office or position unlawfully held or exercised by another" (Revised
Rules of Court, Rule 66, Sec. 6; Acosta v. Flor, 5 Phil. 18 [1905]).

In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we held that the petitioner therein, who
did not aver that he was entitled to the office of the City Engineer of Cabanatuan City, could
not bring the action for quo warranto to oust the respondent from said office as a mere
usurper.

Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910, it was held that the question of
title to an office, which must be resolved in a quo warranto proceeding, may not be
determined in a suit to restrain the payment of salary to the person holding such office,
brought by someone who does not claim to be the one entitled to occupy the said office.

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

Its capstone having been removed, the whole case of petitioner collapses. Hence, there is no
need to resolve the question of whether the disbursement of public funds to pay the salaries
and emoluments of respondent Singson can be enjoined. Likewise, the Court refrains from
passing upon the constitutionality of Section 6, R.A. No. 7653 in deference to the principle
that bars a judicial inquiry into a constitutional question unless the resolution thereof is
indispensable for the determination of the case (Fernandez v. Torres, 215 SCRA 489 [1992]).
However for the information of all concerned, we call attention to our decision in Calderon v.
Carale, 208 SCRA 254 (1992), with Justice Isagani A. Cruz dissenting, where we ruled that
Congress cannot by law expand the confirmation powers of the Commission on Appointments
and require confirmation of appointment of other government officials not expressly
mentioned in the first sentence of Section 16 of Article VII of the Constitution.

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

SO ORDERED.

Feliciano, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug and Kapunan,
JJ., concur.

Narvasa, C.J. and Cruz, JJ., are on leave.

Separate Opinions

PADILLA, J., concurring:

I concur in the result. Instead, however, of basing the petition's dismissal mainly on
technicality, I would anchor said dismissal squarely on the ruling laid down by the Court
in Calderon vs. Carale, 208 SCRA 254 (1992), to the effect that appointments by the
President of the Philippines, which under the Constitution (Sec. 16, Article VII) are not among
those required to be confirmed by the Commission on Appointments, may not, by legislation,
be made subject to such confirmation. This ruling was a reiteration of the doctrine earlier laid
down in Sarmiento vs. Mison, (G.R. No. 79974, 156 SCRA 549, December 17, 1987)
and Bautista vs. Salonga, (G.R. No. 86439, 172 SCRA 160, April 13, 1989).

# Separate Opinions

PADILLA, J., concurring:

I concur in the result. Instead, however, of basing the petition's dismissal mainly on
technicality, I would anchor said dismissal squarely on the ruling laid down by the Court
in Calderon vs. Carale, 208 SCRA 254 (1992), to the effect that appointments by the
President of the Philippines, which under the Constitution (Sec. 16, Article VII) are not among
those required to be confirmed by the Commission on Appointments, may not, by legislation,
be made subject to such confirmation. This ruling was a reiteration of the doctrine earlier laid
down in Sarmiento vs. Mison, (G.R. No. 79974, 156 SCRA 549, December 17, 1987)
and Bautista vs. Salonga, (G.R. No. 86439, 172 SCRA 160, April 13, 1989).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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 claimants2 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.5This 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 Resources2 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.

Footnotes

SANCHEZ, J.:

1
Special Civil Case No. 2792, Court of First Instance of Davao, Branch II.

2
Julian Balala, Magdalena Balala, Florencio Aguinaldo, Pedro Roguian, Carlo Francisco,
Jose Pascua, Agapito Viernes, Ricardo Villanueva, Cezario Butava, Vicente Riya, Pedro
Ringor, Jose Bartolome, Benjamin Simon, Carlos Villanueva, Esmio Simon, Gregorio
Domingo, Fernando Roguian, Severino Cape, and Sixto de la Cruz.
3
Section 7, Article VII, Philippine Constitution.

4
Section 10(l), Article VII, id.

5
Castrillo, Law on Natural Resources, 1957 ed., p. 118.

6
Castillo vs. Rodriguez, L-17189, June 22, 1965. See also: Extensive Enterprises vs. Sarbro
& Co., Inc., L-22383 & L-22386, May 16, 1966.

7
Ham vs. Bachrach Motor Co., Inc., L-13677, October 31, 1960; Calo vs. Fuertes, L-16537,
June 29, 1962.

8
Ham vs. Bachrach, supra; Suarez vs. Reyes, L-19928, February 28, 1963; Extensive
Enterprises vs. Sarbro & Co., supra, citing Section 10(l) of Article VII of the Constitution.

9
Mondano vs. Silvosa, 97 Phil. 143, 148; also quoted in Ham vs. Bachrach, supra; Extensive
Enterprises vs. Sarbro & Co., supra.

10
Powers to suspend the writ of habeas corpus, to proclaim martial law [Sec. 10 (2), Art. VII,
Phil. Constitution] and to grant reprieves, commutations, and pardons and remit fines and
forfeitures [Sec. 10 (6), idem] mentioned in Villena vs. Secretary of Interior, 67 Phil. 451, 462-
463.

11
Executive Order 94, October 4, 1947, provides in Sec. 27: that "[t]he Executive
Secretary . . . shall exercise such powers, functions, and duties as may be assigned to him by
the President from time to time . . ."

12
Extensive Enterprises vs. Sarbro & Co., supra. See: Pajo vs. Ago, L-15414, June 30, 1960,
and citations at footnote 8 herein. See also: Martin, Revised Administrative Code, 1962 ed.,
Vol. III, pp. 868-869.

13
Villena vs. Secretary of Interior, supra, at p. 463. Cf. Ykalina vs. Oricio, 93 Phil. 1076, 1080.

14
Pozon vs. Executive Secretary (C.A.), 55 O.G. No 18, pp. 3302, 3305.

FERNANDO, J., concurring:

1
Article VII, Section 10 (1) of the Constitution.

2
Sec. 4, Commonwealth Act No. 941 (1936).

3
L-17169, November 30, 1963.

4
Planas v. Gil (1939), 69 Phil. 52, at p. 76.

5
67 Phil. 451 (1939). As far as presidential power of supervision over local governments is
concerned, its authority has been impaired by Hebron v. Reyes, 104 Phil. 175 (1958).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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.

Footnotes

1
Mondano v. Silvosa, L-7708, Alay 30, 1955; 41 O.G., 2884.

2
Lockhead Aircraft Corp. v. Superior Court of Los Angeles County, 171 P. 2d 21, 24, 28 Cal.
2d 481, 166 A.L.R., 701.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-22754 December 31, 1965

RUBEN A. VILLALUZ, petitioner,

vs.
CALIXTO ZALDIVAR, ET AL., respondents.

Magtanggol C. Gunigundo and Juan T. David for petitioner.

Office of the Solicitor General for respondents.

BAUTISTA ANGELO, J.:

Petitioner seeks his reinstatement as Administrator of the Motor Vehicles Office with payment
of back salaries in a petition filed before this Court on April 1, 1964.

He alleged that he was nominated as chief of said office on May 20, 1958 and two days
thereafter his nomination was confirmed by the Commission on Appointments; that on May 26,
1958 he took his oath of office as such after having been informed of his nomination by then
Acting Assistant Executive Secretary Sofronio C. Quimson; that in a letter dated January 28,
1960 addressed to the President of the Philippines by Congressman Joaquin R. Roces as
Chairman of the Committee on Good Government of the House of Representatives, the latter
informed the former of the findings made by his Committee concerning alleged gross
mismanagement and inefficiency committed by petitioner in the Motor Vehicles Office which
are summed up in the letter, as follows: (1) malpractice in office resulting in huge losses to the
government; (2) failure to correct inadequate controls or intentional toleration of the same,
facilitating thereby the commission of graft and corruption; and (3) negligence to remedy
unsatisfactory accounting; that as a result of said findings. Congressman Roces
recommended the replacement of petitioner and of his assistant chief Aurelio de Leon as well
as the complete revamp of the offices coming under the Motor Vehicles Office by the new
chief who may be appointed thereafter; that having been officially informed of the content of
said letter, then Secretary of Public Works and Communications furnished petitioner with a
copy thereof requiring him to explain within 72 hours why no administrative action should be
taken against him relative to the charges contained in the letter; that petitioner answered the
letter as required wherein he explained and refuted in detail each and everyone of the
charges contained in the letter of Congressman Roces; that on February 15, 1960, the then
Executive Secretary Natalio P. Castillo suspended petitioner as Administrator of the Motor
Vehicles Office, having thereupon created an investigating committee with the only purpose of
investigating the charges against petitioner and his assistant Aurelio de Leon, and to
undertake the investigation a prosecution panel was created headed by Special Prosecutor
Emilio A. Gancayco; that after the investigation said committee submitted its report to the
President of the Philippines who thereafter issued Administrative Order No. 332 decreeing the
removal from office of petitioner; that as a result of petitioner's removal Apolonio Ponio was
appointed to take his place as acting administrator; and that, after having been officially
notified of his removal, petitioner filed a motion for reconsideration and/or reinstatement, and
when this was denied, he filed the instant petition before this Court.
Respondents in their answer denied the claim of petitioner that the charges contained in the
letter of Congressman Roces were not directed against him but against his office in general
for the truth is that he was, specifically charged with mismanagement, gross inefficiency and
negligence in the performance of his duties as Chief of the Motor Vehicles Office, and as a
result he was required to the same within 72 hours to explain why no disciplinary action
should be taken against him. Respondents also denied that petitioner was investigated
without being accorded due process is required by law for in fact he was given every
reasonable opportunity to present his defense, to secure the attendance of witnesses, and to
produce documents in his behalf in a manner consistent with administrative due process.
Respondent also averred that the President of the Philippines, contrary to petitioner's claim,
has jurisdiction to investigate and remove him since he is a presidential appointee who
belongs to the non-competitive or unclassified service under Section 5 of Republic Act No.
2260. Respondents finally averred that the letter of Congressman Joaquin R. Roces is in
effect a valid administrative complaint because it contained specific charges which constitute
just causes for his suspension and removal; that said charges need not be sworn to for the
Chief Executive, as administrative head of petitioner, is empowered to commence
administrative proceedings motu proprio pursuant to Executive Order No. 370, series of 1941,
without need of any previous verified complaint. And as special defense respondents averred
that petitioner is guilty of laches for having allowed almost four years before instituting the
present action.

There is merit in the claim that petitioner, being a presidential appointee, belongs to the
non-competitive or unclassified service of the government and is such he can only be
investigated and removed from office after due hearing the President of the Philippines under
the principle that "the power to remove is inherent in the power to appoint" as can be clearly
implied from Section 5 of Republic Act No. 2260. Such is what we ruled in the recent case of
Ang-Angco wherein on this point we said:

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 inferior officers, in the President alone, in the courts, or in
the head of departments" (Article VII, Section 10 [3], Constitution). (Ang-Angco v. Castillo, et
al., L-17169, November 30, 1963).

Consequently, as a corollary to the foregoing ruling, we may state that the Commissioner of
Civil Service is without jurisdiction to hear and decide the administrative charges filed against
petitioner because the authority of said Commissioner to pass upon questions of suspension,
separation, or removal can only be exercised with reference to permanent officials and
employees in the classified service to which classification petitioner does not belong. This is
also what we said in the Ang-Angco case when, in interpreting Section 16 (i) of Republic Act
No. 2260, we emphasized that only permanent officers and employees who belong to the
classified service come under the exclusive jurisdiction of the Commissioner of Civil Service.

There is, therefore, no error of procedure committed by respondents insofar as the

investigation and disciplinary action taken against petitioner is concerned, even if he is under
the control and supervision of the Department of Public Works, in view of the reason we have
already stated that he is a presidential appointee who comes exclusively under the jurisdiction
of the President. The following rationale supports this view:

Let us now take up the power of control given to the President by the Constitution over all
officers and employees in the executive departments which is now involved by respondent as
justification to override the specific provisions of the Civil Service Act. This power of control is
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, 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," 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, and it cannot be said that the removal of an inferior officer comes within the
meaning of control over a specific policy of government. (Ang-Angco v. Castillo, et al.,supra)

With regard to the claim that the administrative proceedings conducted against petitioner
which led to his separation are illegal simply because the charges preferred against him by
Congressman Roces were not sworn to as required by Section 72 of Republic Act No. 2260,
this much we can say: said proceedings having been commenced against petitioner upon the
authority of the Chief Executive who was his immediate administrative head, the same may
be commenced by him motu proprio without previous verified complaint pursuant to Executive
Order No. 370, series of 1941, the pertinent provisions of which are is follows:

(1) Administrative proceedings may be commenced a government officer or employee by the

head or chief of the bureau or office concerned motu proprio or upon complaint of any person
which shall be subscribed under oath by the complainant: Provided, That if a complaint is not
or cannot be sworn to by the complainant, the head or chief of the bureau or office concerned
may in his discretion, take action thereon if the public interest or the special circumstances of
the case, so warrant.1

Finally, on the theory that the instant petition partakes of the nature of quo warranto which
seeks petitioners reinstatement to his former position as Administrator of the Motor Vehicles
Office, we are of the opinion that it has now no legal raison d'etre for having been filed more
than one year after its cause of action had accrued. As this Court has aptly said: "a delay of
slightly over one (1) year was considered sufficient ... to be an action formandamus, by
reason of laches or abandonment of office. We see no reason to depart from said view in the
present case, petitioner herein having allowed about a year and a half to elapse before
seeking reinstatement." (Jose V. Lacson, et al., L-10177, May 17, 1957).

WHEREFORE, petition is denied. No costs.

Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal and Bengzon,
JJ., concur.

Zaldivar, J., took no part.

Footnotes

1
The executive order is valid and subsisting notwithstanding the enactment of Republic Act
No. 2260 as interpreted by this Court in L-21008, Diaz, et al. promulgated October 29, 1965.
 SECOND DIVISION

[G.R. No. 131255. May 20, 1998]

HON. EDUARDO NONATO JOSON, in his capacity as the

Governor of the Province of Nueva Ecija, petitioner,
vs. EXECUTIVE SECRETARY RUBEN D. TORRES, the
DEPARTMENT OF THE INTERIOR & LOCAL
GOVERNMENTS, represented by SECRETARY ROBERT Z.
BARBERS and UNDERSECRETARY MANUEL R. SANCHEZ,
MR. OSCAR C. TINIO, in his capacity as Provincial
Vice-Governor of Nueva Ecija, and MR. LORETO P.
PANGILINAN, MR. CRISPULO S. ESGUERRA, MS. SOLITA C.
SANTOS, MR.VICENTE C. PALILIO, and MR. NAPOLEON G.
INTERIOR, in their capacity as Provincial Board Members of
Nueva Ecija, respondents.

DECISION
PUNO, J.:

The case at bar involves the validity of the suspension from office of petitioner
Eduardo Nonato Joson as Governor of the province of Nueva Ecija. Private
respondent Oscar C. Tinio is the Vice-Governor of said province while private
respondents Loreto P. Pangilinan, Crispulo S. Esguerra, Solita C. Santos, Vicente
C. Palilio and Napoleon G. Interior are members of the Sangguniang
Panlalawigan.
On September 17, 1996, private respondents filed with the Office of the
President a letter-complaint dated September 13, 1997 charging petitioner with
grave misconduct and abuse of authority. Private respondents alleged that in the
morning of September 12, 1996, they were at the session hall of the provincial
capitol for a scheduled session of the Sangguniang Panlalawigan when petitioner
belligerently barged into the Hall; petitioner angrily kicked the door and chairs in
the Hall and uttered threatening words at them; close behind petitioner were
several men with long and short firearms who encircled the area. Private
respondents claim that this incident was an offshoot of their resistance to a
pending legislative measure supported by petitioner that the province of Nueva
Ecija obtain a loan of P150 million from the Philippine National Bank; that
petitioner's acts were intended to harass them into approving this loan; that
fortunately, no session of the Sangguniang Panlalawigan was held that day for
lack of quorum and the proposed legislative measure was not considered; that
private respondents opposed the loan because the province of Nueva Ecija had
an unliquidated obligation of more than P70 million incurred without prior
authorization from the Sangguniang Panlalawigan; that the provincial budget
officer and treasurer had earlier disclosed that the province could not afford to
contract another obligation; that petitioner's act of barging in and intimidating
private respondents was a serious insult to the integrity and independence of the
Sangguniang Panlalawigan; and that the presence of his private army posed
grave danger to private respondents' lives and safety. Private respondents prayed
for the suspension or removal of petitioner; for an emergency audit of the
provincial treasury of Nueva Ecija; and for the review of the proposed loan in light
of the financial condition of the province, to wit:

"In this regard, we respectfully request for the following assistance

from your good office:

1. To immediately suspend Governor N. [sic] Joson considering the

actual dangers that we are facing now, and provide adequate police
security detail for the Sangguniang Panlalawigan of Nueva Ecija. Should
the evidence warrant after investigation, to order his removal from office.

2. To conduct an emergency audit of the provincial treasury of Nueva

Ecija by the auditors from the Commission on Audit Central Office with
adequate police security assistance. Should the evidence so warrant, to
file necessary charges against responsible and accountable officers.

3. To advise the Philippine National Bank to review the capability of the province
of Nueva Ecija to secure more loans and the feasibility of the same in the light of
the present financial condition of the province. Or if said loan will be contrary to
sound banking practice, recommend its disapproval."[1]

The letter-complaint was submitted with the joint affidavit of Elnora

Escombien and Jacqueline Jane Perez, two (2) employees of the Sangguniang
Panlalawigan who witnessed the incident. The letter was endorsed by
Congressmen Eleuterio Violago and Pacifico Fajardo of the Second and Third
Districts of Nueva Ecija, former Congressman Victorio Lorenzo of the Fourth
District, and Mayor Placido Calma, President of the Mayors' League of said
province.[2]
The President acted on the complaint by writing on its margin the following:

"17 Sep 96

To: SILG info Exec. Sec. and Sec. of Justice:

 1. Noted. There appears no justification for the use of force,
intimidation or armed followers in the situation of 12 Sep at
the Session Hall. 2. Take appropriate preemptive and
investigative actions. 3. BREAK NOT the PEACE.
FIDEL V.
RAMOS
(Signed)."[3]
President Ramos noted that the situation of "12 Sep at the Session Hall," i.e.,
the refusal of the members of the Sangguniang Panlalawigan to approve the
proposed loan, did not appear to justify "the use of force, intimidation or armed
followers." He thus instructed the then Secretary of the Interior and Local
Governments (SILG) Robert Barbers to "[t]ake appropriate preemptive and
investigative actions," but to "[b]reak not the peace."
The letter-complaint together with the President's marginal notes were sent to
Secretary Robert Z. Barbers on September 20, 1996. Acting upon the instructions
of the President, Secretary Barbers notified petitioner of the case against
him[4] and attached to the notice a copy of the complaint and its annexes. In the
same notice, Secretary Barbers directed petitioner "to submit [his] verified/sworn
answer thereto, not a motion to dismiss, together with such documentary
evidence that [he] has in support thereof, within fifteen (15) days from receipt."[5]
Immediately thereafter, Secretary Barbers proceeded to Nueva Ecija and
summoned petitioner and private respondents to a conference to settle the
controversy. The parties entered into an agreement whereby petitioner promised
to maintain peace and order in the province while private respondents promised to
refrain from filing cases that would adversely affect their peaceful co-existence.[6]
The peace agreement was not respected by the parties and the private
respondents reiterated their letter-complaint. Petitioner was again ordered to file
his answer to the letter-complaint within fifteen days from receipt. Petitioner
received a copy of this order on November 13, 1996. On the same day, petitioner
requested for an extension of thirty (30) days to submit his answer because he
was "trying to secure the services of legal counsel experienced in administrative
law practice."[7] The Department of the Interior and Local Government (DILG),
acting through Director Almario de los Santos, Officer-In-Charge of the Legal
Service, granted the motion, with the thirty-day extension to be reckoned,
however, from November 13, 1996, i.e., the day petitioner received the order to
answer.[8]
In a letter dated December 9, 1996, petitioner moved for another extension of
thirty (30) days to file his answer. He stated that he had already sent letters to
various law firms in Metro Manila but that he had not yet contracted their services;
that the advent of the Christmas season kept him busy with "numerous and
inevitable official engagements."[9] The DILG granted the request for extension "for
the last time up to January 13 only."[10]
 On January 7, 1997, petitioner requested for another extension of thirty (30)
days to file his answer. According to him, the Christmas season kept him very
busy and preoccupied with his numerous official engagements; that the law firms
he invited to handle his case have favorably replied but that he needed time to
confer with them personally; and that during this period, he, with the help of his
friends, was exploring the possibility of an amicable settlement of the case.[11] The
DILG granted petitioner's request "for the last time" but gave him an extension of
only ten (10) days from January 13, 1997 to January 23, 1997. The DILG also
informed him that his "failure to submit answer will be considered a waiver and
that the plaintiff [shall] be allowed to present his evidence ex-parte."[12]
Petitioner moved for reconsideration of the order. He reiterated his prayer for
an extension of thirty (30) days on the following grounds: (a) that he was still in the
process of choosing competent and experienced counsel; (b) that some law firms
refused to accept his case because it was perceived to be politically motivated;
and (c) the multifarious activities, appointments and official functions of his office
hindered his efforts to secure counsel of choice.[13]
Three months later, on April 22, 1997, Undersecretary Manuel Sanchez, then
Acting Secretary of the DILG, issued an order declaring petitioner in default and to
have waived his right to present evidence. Private respondents were ordered to
present their evidence ex-parte. The order reads as follows:

"ORDER

It appearing that respondent failed to submit his answer to the

complaint despite the grant to him of three (3) extensions, such
unreasonable failure is deemed a waiver of his right to present
evidence in his behalf pursuant to Section 4, Rule 4 of
Administrative Order No. 23 dated December 17, 1992, as
amended.
Respondent is hereby declared in default, meanwhile,
complainants are directed to present their
evidence ex-parte. However, considering the prohibition on the
conduct of administrative investigation due to the forthcoming
barangay elections, complainants will be notified on the date after
the barangay election for them to present their evidence.

SO ORDERED."[14]

Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar &
Asuncion, representing petitioner, filed with the DILG an "Entry of Appearance
with Motion for Time to File Answer Ad Cautelam."
Petitioner received a copy of the order of default on May 2, 1997. Through
counsel, he moved for reconsideration. On May 19, 1997, Undersecretary
Sanchez reconsidered the order of default in the interest of justice. He noted the
appearance of petitioner's counsel and gave petitioner "for the last time" fifteen
(15) days from receipt to file his answer.[15]
On June 23, 1997, Undersecretary Sanchez issued an order stating that
petitioner's counsel, whose office is in Manila, should have received a copy of the
May 19, 1997 order ten days after mailing on May 27, 1997. Since petitioner still
failed to file his answer, he was deemed to have waived his right to present
evidence in his behalf. Undersecretary Sanchez reinstated the order of default
and directed private respondents to present their evidence ex-parte on July 15,
1997.[16]
The following day, June 24, 1997, petitioner, through counsel, filed a "Motion
to Dismiss." Petitioner alleged that the letter-complaint was not verified on the day
it was filed with the Office of the President; and that the DILG had no jurisdiction
over the case and no authority to require him to answer the complaint.
On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for
Reconsideration" of the order of June 23, 1997 reinstating the order of
default. Petitioner also prayed that the hearing on the merits of the case be held in
abeyance until after the "Motion to Dismiss" shall have been resolved.
On July 11, 1997, on recommendation of Secretary Barbers, Executive
Secretary Ruben Torres issued an order, by authority of the President, placing
petitioner under preventive suspension for sixty (60) days pending investigation of
the charges against him.[17]
Secretary Barbers directed the Philippine National Police to assist in the
implementation of the order of preventive suspension. In petitioner's stead,
Secretary Barbers designated Vice-Governor Oscar Tinio as Acting Governor until
such time as petitioner's temporary legal incapacity shall have ceased to exist.[18]
Forthwith, petitioner filed a petition for certiorari and prohibition with the Court
of Appeals challenging the order of preventive suspension and the order of
default.[19]
Meanwhile, the proceedings before the DILG continued. On August 20, 1997,
Undersecretary Sanchez issued an order denying petitioner's "Motion to Dismiss"
and "Urgent Ex-ParteMotion for Reconsideration." In the same order, he required
the parties to submit their position papers within an inextendible period of ten days
from receipt after which the case shall be deemed submitted for resolution, to wit:
"WHEREFORE, for lack of merit, both motions are denied. However, for
this office to have a better appreciation of the issues raised in the instant
case, the parties, through their respective counsels are hereby directed to
submit their position papers within a period of ten (10) days from receipt
hereof, which period is inextendible, after which the case is deemed
submitted for resolution."[20]
On August 27, 1997, petitioner filed with the DILG a "Motion to Lift Order of
Preventive Suspension." On September 10, 1997, petitioner followed this with a
"Motion to Lift Default Order and Admit Answer Ad Cautelam."[21] Attached to the
motion was the "Answer Ad Cautelam"[22] and sworn statements of his
witnesses. On the other hand, complainants (private respondents herein)
manifested that they were submitting the case for decision based on the records,
the complaint and affidavits of their witnesses.[23]
In his Answer Ad Cautelam, petitioner alleged that in the morning of
September 12, 1996, while he was at his district office in the town of Munoz, he
received a phone call from Sangguniang Panlalawigan member Jose del
Mundo. Del Mundo, who belonged to petitioner's political party, informed him that
Vice-Governor Tinio was enraged at the members of the Sangguniang
Panlalawigan who were in petitioner's party because they refused to place on the
agenda the ratification of the proposed P150 million loan of the
province. Petitioner repaired to the provincial capitol to advise his party-mates on
their problem and at the same time attend to his official functions. Upon arrival, he
went to the Session Hall and asked the members present where Vice-Governor
Tinio was. However, without waiting for their reply, he left the Hall and proceeded
to his office.
Petitioner claimed that there was nothing in his conduct that threatened the
members of the Sangguniang Panlalawigan or caused alarm to the
employees. He said that like Vice-Governor Tinio, he was always accompanied by
his official security escorts whenever he reported for work. He also alleged that
the joint affidavit of Elnora Escombien and Jacqueline Jane Perez was
false. Escombien was purportedly not inside the session hall during the incident
but was at her desk at the office and could not in any way have seen petitioner in
the hall. To attest to the truth of his allegations, petitioner submitted three (3) joint
affidavits -- two (2) affidavits executed by six (6) and ten (10) employees,
respectively, of the provincial government, and a third by four members of the
Sangguniang Panlalawigan.[24]
On September 11, 1997, petitioner filed an "Urgent Motion for
Reconsideration" of the order of August 20, 1997 denying his motion to
dismiss. The "Urgent Motion for Reconsideration" was rejected by Undersecretary
Sanchez on October 8, 1997. Undersecretary Sanchez, however, granted the
"Motion to Lift Default Order and to Admit Answer Ad Cautelam" and admitted the
"Answer Ad Cautelam" as petitioner's position paper pursuant to the order of
August 20, 1997.[25]
On October 15, 1997, petitioner filed a "Motion to Conduct Formal
Investigation." Petitioner prayed that a formal investigation of his case be
conducted pursuant to the provisions of the Local Government Code of 1991 and
Rule 7 of Administrative Order No. 23; and that this be held at the province of
Nueva Ecija.[26] On October 29, 1997, petitioner submitted a "Manifestation and
Motion" before the DILG reiterating his right to a formal investigation.
In the meantime, on October 24, 1997, the Court of Appeals dismissed
petitioner's petition.[27]
 Hence this recourse.
The proceedings before the DILG continued however. In an order dated
November 11, 1997, the DILG denied petitioner's "Motion to Conduct Formal
Investigation" declaring that the submission of position papers substantially
complies with the requirements of procedural due process in administrative
proceedings.[28]
A few days after filing the petition before this Court, petitioner filed a "Motion
for Leave to File Herein Incorporated Urgent Motion for the Issuance of a
Temporary Restraining Order and/or a Writ of Preliminary Injunction." Petitioner
alleged that subsequent to the institution of this petition, the Secretary of the
Interior and Local Governments rendered a resolution on the case finding him
guilty of the offenses charged.[29] His finding was based on the position papers and
affidavits of witnesses submitted by the parties. The DILG Secretary found the
affidavits of complainants' witnesses to be "more natural, reasonable and
probable" than those of herein petitioner Joson's.[30]
On January 8, 1998, the Executive Secretary, by authority of the President,
adopted the findings and recommendation of the DILG Secretary. He imposed on
petitioner the penalty of suspension from office for six (6) months without pay, to
wit:
"WHEREFORE, as recommended by the Secretary of the Interior and
Local Government, respondent Nueva Ecija Governor Eduardo Nonato
Joson is hereby found guilty of the offenses charged and is meted the
penalty of suspension from office for a period of six (6) months without
pay."[31]
On January 14, 1998, we issued a temporary restraining order enjoining the
implementation of the order of the Executive Secretary.
On January 19, 1998, private respondents submitted a Manifestation
informing this Court that the suspension of petitioner was implemented on
January 9, 1998; that on the same day, private respondent Oscar Tinio was
installed as Acting Governor of the province; and that in view of these events, the
temporary restraining order had lost its purpose and effectivity and was fait
accompli.[32] We noted this Manifestation.
In his petition, petitioner alleges that:
"I THE COURT OF APPEALS GRAVELY ERRED IN HOLDING
THAT RULES OF PROCEDURE AND EVIDENCE SHOULD
NOT BE STRICTLY APPLIED IN THE ADMINISTRATIVE
DISCIPLINARY AND CLEARLY PUNITIVE PROCEEDINGS IN
THE CASE AGAINST PETITIONER GOVERNOR EDNO
JOSON;
II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING
THE ALTER-EGO PRINCIPLE BECAUSE, CONTRARY TO LAW,
 IT WAS THE SECRETARY OF THE DILG WHO WAS
EXERCISING THE POWERS OF THE PRESIDENT WHICH
ARE CLEARLY VESTED BY LAW ONLY UPON HIM OR THE
EXECUTIVE SECRETARY.
III THE COURT OF APPEALS ERRED IN RULING THAT THE
PETITIONER WAS PROPERLY DECLARED IN DEFAULT
WHEN HE FILED A MOTION TO DISMISS INSTEAD OF AN
ANSWER, AS DIRECTED BY THE DILG, BECAUSE A MOTION
TO DISMISS BASED ON JURISDICTIONAL GROUNDS IS NOT
A PROHIBITIVE [sic] PLEADING IN ADMINISTRATIVE
DISCIPLINARY CASES.
IV THE COURT OF APPEALS ERRED IN RULING THAT THE
IMPOSITION OF PREVENTIVE SUSPENSION AGAINST THE
PETITIONER WAS PROPER BECAUSE THERE WAS NO
JOINDER OF ISSUES YET UPON ITS IMPOSITION AND
THERE WAS NO EVIDENCE OF GUILT AGAINST
PETITIONER."[33]
In his "Motion for Leave to File Herein Incorporated Urgent Motion for the
Issuance of a Temporary Restraining Order and/or a Writ of Preliminary
Injunction," petitioner also claims that:
"I THE RESOLUTION OF JANUARY 8, 1998 AND THE
MEMORANDA ISSUED PURSUANT THERETO (i.e., ANNEXES
"C," "D," "E," "F," AND "G" HEREOF) WERE ISSUED WITH
UNDUE HASTE, IN VIOLATION OF THE PERTINENT
PROVISIONS OF THE 1991 LOCAL GOVERNMENT CODE
AND ADMINISTRATIVE ORDER NO. 23, AND IN COMPLETE
DISREGARD OF PETITIONER'S CONSTITUTIONAL RIGHT TO
DUE PROCESS.
II THE IMPLEMENTATION OF THE INVALID RESOLUTION OF
JANUARY 8, 1998 (ANNEX "C" HEREOF) BY THE PUBLIC
RESPONDENTS ENTITLES PETITIONER TO THE IMMEDIATE
ISSUANCE OF THE TEMPORARY RESTRAINING
ORDER/WRIT OF PRELIMINARY INJUNCTION HEREIN
PRAYED FOR."[34]
We find merit in the petition.
Administrative disciplinary proceedings against elective local officials are
governed by the Local Government Code of 1991, the Rules and Regulations
Implementing the Local Government Code of 1991, and Administrative Order No.
23 entitled "Prescribing the Rules and Procedures on the Investigation of
Administrative Disciplinary Cases Against Elective Local Officials of Provinces,
Highly Urbanized Cities, Independent Component Cities, and Cities and
Municipalities in Metropolitan Manila."[35] In all matters not provided in A.O. No. 23,
the Rules of Court and the Administrative Code of 1987 apply in a suppletory
character.[36]
I

Section 60 of Chapter 4, Title II, Book I of the Local Government Code

enumerates the grounds for which an elective local official may be disciplined,
suspended or removed from office.Section 60 reads:
"Sec. 60. Grounds for Disciplinary Actions. -- An elective local
official may be disciplined, suspended, or removed from office on
any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence, or

dereliction of duty;

(d) Commission of any offense involving moral turpitude or an offense

punishable by at least prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working days,

except in the case of members of the sangguniang panlalawigan,
sangguniang panlunsod, sangguniang bayan, and sangguniang
barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or

the status of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds

enumerated above by order of the proper court."

When an elective local official commits an act that falls under the grounds for
disciplinary action, the administrative complaint against him must be verified and
filed with any of the following:
 "Sec. 61. Form and Filing of Administrative Complaints.-- A
verified complaint against any erring local elective official shall be
prepared as follows:

(a) A complaint against any elective official of a province, a highly

urbanized city, an independent component city or component city shall
be filed before the Office of the President.

(b) A complaint against any elective official of a municipality shall be filed

before the sangguniang panlalawigan whose decision may be appealed
to the Office of the President; and

(c) A complaint against any elective barangay official shall be filed before
the sangguniang panlungsod or sangguniang bayan concerned whose
decision shall be final and executory."[37]

An administrative complaint against an erring elective official must be verified

and filed with the proper government office. A complaint against an elective
provincial or city official must be filed with the Office of the President. A complaint
against an elective municipal official must be filed with the Sangguniang
Panlalawigan while that of a barangay official must be filed before the
Sangguniang Panlungsod or Sangguniang Bayan.
In the instant case, petitioner Joson is an elective official of the province of
Nueva Ecija. The letter-complaint against him was therefore properly filed with the
Office of the President.According to petitioner, however, the letter-complaint failed
to conform with the formal requirements set by the Code. He alleges that the
complaint was not verified by private respondents and was not supported by the
joint affidavit of the two witnesses named therein; that private respondents later
realized these defects and surreptitiously inserted the verification and sworn
statement while the complaint was still pending with the Office of the
President.[38] To prove his allegations, petitioner submitted: (a) the sworn
statement of private respondent Solita C. Santos attesting to the alleged fact that
after the letter-complaint was filed, Vice-Governor Tinio made her and the other
members of the Sangguniang Panlalawigan sign an additional page which he had
later notarized; and (b) the fact that the verification of the letter-complaint and the
joint affidavit of the witnesses do not indicate the document, page or book number
of the notarial register of the notary public before whom they were made.[39]
We find no merit in the contention of the petitioner. The absence of the
document, page or book number of the notarial register of the subscribing officer
is insufficient to prove petitioner's claim. The lack of these entries may constitute
proof of neglect on the part of the subscribing officer in complying with the
requirements for notarization and proper verification.They may give grounds for
the revocation of his notarial commission.[40] But they do not indubitably prove that
the verification was inserted or intercalated after the letter-complaint was filed with
the Office of the President.
Nor is the fact of intercalation sufficiently established by the affidavit of Solita
C. Santos. Private respondent Santos was one of the signatories to the
letter-complaint. In her affidavit, she prayed that she be dropped as one of the
complainants since she had just joined the political party of petitioner Joson. She
decided to reveal the intercalation because she was disillusioned with the "dirty
tactics" of Vice-Governor Tinio to grab power from petitioner Joson.[41] Private
respondent Santos cannot in any way be considered an unbiased witness. Her
motive and change of heart render her affidavit suspect.
Assuming, nonetheless, that the letter-complaint was unverified when
submitted to the Office of the President, the defect was not fatal. The requirement
of verification was deemed waived by the President himself when he acted on the
complaint.
Verification is a formal, not jurisdictional requisite.[42] Verification is mainly
intended to secure an assurance that the allegations therein made are done in
good faith or are true and correct and not mere speculation.[43] The lack of
verification is a mere formal defect.[44] The court may order the correction of the
pleading, if not verified, or act on the unverified pleading if the attending
circumstances are such that a strict compliance with the rule may be dispensed
with in order that the ends of justice may be served.[45]
II

In his second assigned error, petitioner questions the jurisdiction and authority
of the DILG Secretary over the case. He contends that under the law, it is the
Office of the President that has jurisdiction over the letter-complaint and that the
Court of Appeals erred in applying the alter-ego principle because the power to
discipline elective local officials lies with the President, not with the DILG
Secretary.
Jurisdiction over administrative disciplinary actions against elective local
officials is lodged in two authorities: the Disciplining Authority and the
Investigating Authority. This is explicit from A.O. No. 23, to wit:
"Sec. 2. Disciplining Authority. All administrative complaints, duly
verified, against elective local officials mentioned in the preceding
Section shall be acted upon by the President.The President, who
may act through the Executive Secretary, shall hereinafter be
referred to as the Disciplining Authority."
Sec. 3. Investigating Authority. The Secretary of the Interior and
Local Government is hereby designated as the Investigating
Authority. He may constitute an Investigating Committee in the
Department of the Interior and Local Government for the purpose.
 The Disciplining Authority may, however, in the interest of the
service, constitute a Special Investigating Committee in lieu of the
Secretary of the Interior and Local Government."[46]
Pursuant to these provisions, the Disciplining Authority is the President of the
Philippines, whether acting by himself or through the Executive Secretary. The
Secretary of the Interior and Local Government is the Investigating Authority, who
may act by himself or constitute an Investigating Committee. The Secretary of the
DILG, however, is not the exclusive Investigating Authority. In lieu of the DILG
Secretary, the Disciplining Authority may designate a Special Investigating
Committee.
The power of the President over administrative disciplinary cases against
elective local officials is derived from his power of general supervision over local
governments. Section 4, Article X of the 1987 Constitution provides:
"Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to component
cities and municipalities, and cities and municipalities with respect to
component barangays shall ensure that the acts of their component units
are within the scope of their prescribed powers and functions."[47]
The power of supervision means "overseeing or the authority of an officer to see
that the subordinate officers perform their duties."[48] If the subordinate officers fail
or neglect to fulfill their duties, the official may take such action or step as
prescribed by law to make them perform their duties.[49] The President's power of
general supervision means no more than the power of ensuring that laws are
faithfully executed, or that subordinate officers act within the law.[50] Supervision is
not incompatible with discipline.[51] And the power to discipline and ensure that the
laws be faithfully executed must be construed to authorize the President to order
an investigation of the act or conduct of local officials when in his opinion the good
of the public service so requires.[52] Thus:
"Independently of any statutory provision authorizing the President to
conduct an investigation of the nature involved in this proceeding, and in
view of the nature and character of the executive authority with which the
President of the Philippines is invested, the constitutional grant to him of
power to exercise general supervision over all local governments and to
take care that the laws be faithfully executed must be construed to
authorize him to order an investigation of the act or conduct of the
petitioner herein. 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."[53]
The power to discipline evidently includes the power to investigate. As the
Disciplining Authority, the President has the power derived from the Constitution
itself to investigate complaints against local government officials. A. O. No. 23,
however, delegates the power to investigate to the DILG or a Special Investigating
Committee, as may be constituted by the Disciplining Authority. This is not undue
delegation, contrary to petitioner Joson's claim. The President remains the
Disciplining Authority. What is delegated is the power to investigate, not the power
to discipline.[54]
Moreover, the power of the DILG to investigate administrative complaints is
based on the alter-ego principle or the doctrine of qualified political agency. Thus:
"Under this doctrine, which recognizes the establishment of a single
executive, all executive and administrative organizations are adjuncts of
the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive, and,
except in cases where the Chief Executive is required by the Constitution
or law to act in person or the exigencies of the situation demand that he
act personally, the multifarious executive and administrative functions of
the Chief Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments,
performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive presumptively the acts
of the Chief Executive."[55]
This doctrine is corollary to the control power of the President.[56] The power of
control is provided in the Constitution, thus:
"Sec. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed."[57]
Control is said to be the very heart of the power of the presidency.[58] As head of
the Executive Department, the President, however, may delegate some of his
powers to the Cabinet members except when he is required by the Constitution to
act in person or the exigencies of the situation demand that he acts
personally.[59] The members of Cabinet may act for and in behalf of the President
in certain matters because the President cannot be expected to exercise his
control (and supervisory) powers personally all the time. 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.[60]
The procedure how the Disciplining and Investigating Authorities should
exercise their powers is distinctly set forth in the Local Government Code and A.O.
No. 23. Section 62 of the Code provides:
"Sec. 62. Notice of Hearing.-- (a) Within seven (7) days after the
administrative complaint is filed, the Office of the President or the
sanggunian concerned, as the case may be, shall require the
respondent to submit his verified answer within fifteen (15) days
from receipt thereof, and commence investigation of the case
 within ten (10) days after receipt of such answer of the
respondent.
xxx."
Sections 1 and 3, Rule 5[61] of A.O. No. 23 provide:
"Sec. 1. Commencement. Within forty-eight (48) hours from
receipt of the answer, the Disciplining Authority shall refer the
complaint and answer, together with their attachments and other
relevant papers, to the Investigating Authority who shall
commence the investigation of the case within ten (10) days from
receipt of the same.

"x x x

"Sec. 3. Evaluation. Within twenty (20) days from receipt of the

complaint and answer, the Investigating Authority shall determine
whether there is a prima facie case to warrant the institution of
formal administrative proceedings."
When an administrative complaint is therefore filed, the Disciplining Authority shall
issue an order requiring the respondent to submit his verified answer within fifteen
(15) days from notice.Upon filing of the answer, the Disciplining Authority shall
refer the case to the Investigating Authority for investigation.
In the case at bar, petitioner claims that the DILG Secretary usurped the
power of the President when he required petitioner to answer the
complaint. Undisputably, the letter-complaint was filed with the Office of the
President but it was the DILG Secretary who ordered petitioner to answer.
Strictly applying the rules, the Office of the President did not comply with the
provisions of A.O. No. 23. The Office should have first required petitioner to file his
answer. Thereafter, the complaint and the answer should have been referred to
the Investigating Authority for further proceedings. Be that as it may, this
procedural lapse is not fatal. The filing of the answer is necessary merely to
enable the President to make a preliminary assessment of the case.[62] The
President found the complaint sufficient in form and substance to warrant its
further investigation. The judgment of the President on the matter is entitled to
respect in the absence of grave abuse of discretion.
III

In his third assigned error, petitioner also claims that the DILG erred in
declaring him in default for filing a motion to dismiss. He alleges that a motion to
dismiss is not a pleading prohibited by the law or the rules and therefore the DILG
Secretary should have considered it and given him time to file his answer.
 It is true that a motion to dismiss is not a pleading prohibited under the Local
Government Code of 1991 nor in A.O. No. 23. Petitioner, however, was instructed
not to file a motion to dismiss in the order to file answer. Thrice, he requested for
extension of time to file his answer citing as reasons the search for competent
counsel and the demands of his official duties.And thrice, his requests were
granted. Even the order of default was reconsidered and petitioner was given
additional time to file answer. After all the requests and seven months later, he
filed a motion to dismiss!
Petitioner should know that the formal investigation of the case is required by
law to be finished within one hundred twenty (120) days from the time of formal
notice to the respondent.The extensions petitioner requested consumed fifty-five
(55) days of this period.[63] Petitioner, in fact, filed his answer nine (9) months after
the first notice. Indeed, this was more than sufficient time for petitioner to comply
with the order to file answer.
The speedy disposition of administrative complaints is required by public
service. The efficiency of officials under investigation is impaired when a case
hangs over their heads. Officials deserve to be cleared expeditiously if they are
innocent, also expeditiously if guilty, so that the business of government will not
be prejudiced.[64]
IV

In view of petitioner's inexcusable failure to file answer, the DILG did not err in
recommending to the Disciplining Authority his preventive suspension during the
investigation. Preventive suspension is authorized under Section 63 of the Local
Government Code, viz:

"Sec. 63. Preventive Suspension.-- (a) Preventive suspension may

be imposed:

(1) By the President, if the respondent is an elective

official of a province, a highly urbanized or an
independent component city;

x x x.

(b) Preventive suspension may be imposed at any time after the

issues are joined, when the evidence of guilt is strong, and given
the gravity of the offense, there is great probability that the
continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the
records and other evidence; Provided, That, any single
preventive suspension of local elective officials shall not extend
beyond sixty (60) days: Provided, further, That in the event that
several administrative cases are filed against an elective official,
 he cannot be preventively suspended for more than ninety (90)
days within a single year on the same ground or grounds existing
and known at the time of the first suspension.

x x x."

In sum, preventive suspension may be imposed by the Disciplining Authority at

any time (a) after the issues are joined; (b) when the evidence of guilt is strong;
and (c) given the gravity of the offense, there is great probability that the
respondent, who continues to hold office, could influence the witnesses or pose a
threat to the safety and integrity of the records and other evidence.
Executive Secretary Torres, on behalf of the President, imposed preventive
suspension on petitioner Joson after finding that:

"x x x

DILG Secretary Robert Z. Barbers, in a memorandum for the

President, dated 23 June 1997, recommends that respondent be
placed under preventive suspension considering that all the
requisites to justify the same are present. He stated therein that:
'Preventive suspension may be imposed at any time after
the issues are joined, that is, after respondent has
answered the complaint, when the evidence of guilt is
strong and, given the gravity of the offense, there is a
great possibility that the continuance in office of the
respondent could influence the witnesses or pose a threat
to the safety and integrity of the records and other
evidence (Sec. 3, Rule 6 of Administrative Order No. 23).
The failure of respondent to file his answer despite
several opportunities given him is construed as a waiver
of his right to present evidence in his behalf (Sec. 4, Rule
4 of Administrative Order No. 23). The requisite of joinder
of issues is squarely met with respondent's waiver of right
to submit his answer. The act of respondent in allegedly
barging violently into the session hall of the Sangguniang
Panlalawigan in the company of armed men constitutes
grave misconduct. The allegations of complainants are
bolstered by the joint-affidavit of two (2) employees of the
Sangguniang Panlalawigan. Respondent who is the chief
executive of the province is in a position to influence the
witnesses. Further, the history of violent confrontational
 politics in the province dictates that extreme precautionary
measures be taken.'
Upon scrutiny of the records and the facts and circumstances
attendant to this case, we concur with the findings of the
Secretary of the Interior and Local Government and find merit in
the aforesaid recommendation.
WHEREFORE, and as recommended by the Department of the
Interior and Local Government, respondent EDUARDO N.
JOSON, Governor of Nueva Ecija, is hereby placed under
PREVENTIVE SUSPENSION FOR A PERIOD OF SIXTY (60)
DAYS, effective 11 July 1997, pending investigation of the
charges filed against him.

SO ORDERED."[65]

Executive Secretary Torres found that all the requisites for the imposition of
preventive suspension had been complied with. Petitioner's failure to file his
answer despite several opportunities given him was construed as a waiver of his
right to file answer and present evidence; and as a result of this waiver, the issues
were deemed to have been joined. The Executive Secretary also found that the
evidence of petitioner Joson's guilt was strong and that his continuance in office
during the pendency of the case could influence the witnesses and pose a threat
to the safety and integrity of the evidence against him.
V

We now come to the validity of the January 8, 1998 Resolution of the

Executive Secretary finding petitioner guilty as charged and imposing on him the
penalty of suspension from office for six (6) months from office without pay.
Petitioner claims that the suspension was made without formal investigation
pursuant to the provisions of Rule 7 of A.O. No. 23. Petitioner filed a "Motion To
Conduct Formal Investigation" three months before the issuance of the order of
suspension and this motion was denied by the DILG for the following reasons:
"On November 19, 1997, complainants, through counsel, filed a
Manifestation calling our attention to the Decision dated October
24, 1997 of the Court of Appeals, Fifth Division in CA-G.R. SP No.
44694, entitled "Eduardo Nonato Joson versus Executive
Secretary Ruben D. Torres, et. al." In the aforestated decision,
the Court of Appeals resolved to sustain the authority of this
Department to investigate this administrative case and has
likewise validated the order of default as well as the order of
preventive suspension of the respondent.
 We offer no objection and concur with the assertion of respondent
that he has the right for the conduct of formal
investigation. However, before there shall be a formal
investigation, joinder of issues must already be present or
respondent's answer has already been filed. In the case at bar,
the admission of respondent's answer after having been declared
in default was conditioned on the fact of submission of position
papers by the parties, after which, the case shall be deemed
submitted for resolution. Respondent, instead of submitting his
position paper filed his subject motion while complainants
manifested to forego the submission of position paper and submit
the case for resolution on the basis of the pleadings on hand.
Settled is the rule that in administrative proceedings, technical
rules of procedure and evidence are not strictly applied
(Concerned Officials of the Metropolitan Waterworks and
Sewerage System v. Vasquez, 240 SCRA 502). The essence of
due process is to be found in the reasonable opportunity to be
heard and to submit evidence one may have in support of one's
defense (Tajonera v. Lamaroza, 110 SCRA 438). To be heard
does not only mean verbal arguments in court; one may be heard
also through pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded, there is no
denial of procedural due process (Juanita Y. Say, et. al;. vs. IAC,
G.R. No. 73451).Thus, when respondent failed to submit his
position paper as directed and insisted for the conduct of formal
investigation, he was not denied of his right of procedural
process.
WHEREFORE, the Motion for the Conduct of Formal
Investigation, for lack of merit, is DENIED.
SO ORDERED."[66]
The denial of petitioner's Motion to Conduct Formal Investigation is
erroneous. Petitioner's right to a formal investigation is spelled out in the following
provisions of A.O. No. 23, viz:
"SEC. 3 Evaluation. Within twenty (20) days from receipt of the
complaint and answer, the Investigating Authority shall determine
whether there is a prima facie case to warrant the institution of
formal administrative proceedings.
SEC. 4. Dismissal motu proprio. If the Investigating Authority
determines that there is no prima facie case to warrant the
 institution of formal administrative proceedings, it shall, within the
same period prescribed under the preceding Section, submit its
recommendation to the Disciplining Authority for the motu
proprio dismissal of the case, together with the recommended
decision, resolution, and order.
SEC. 5. Preliminary conference. If the Investigating Authority
determines that there is prima facie case to warrant the institution
of formal administrative proceedings, it shall, within the same
period prescribed under the preceding Section, summon the
parties to a preliminary conference to consider the following:
a) whether the parties desire a formal investigation or are
willing to submit the case for resolution on the basis
of the evidence on record; and
b) If the parties desire a formal investigation, to consider
the simplification of issues, the possibility of obtaining
stipulation or admission of facts and of documents,
specifically affidavits and depositions, to avoid
unnecessary proof, the limitation of number of
witnesses, and such other matters as may be aid the
prompt disposition of the case.
The Investigating Authority shall encourage the parties and their
counsels to enter, at any stage of the proceedings, into amicable
settlement, compromise and arbitration, the terms and conditions
of which shall be subject to the approval of the Disciplining
Authority.
After the preliminary conference, the Investigating Authority shall
issue an order reciting the matters taken up thereon, including the
facts stipulated and the evidences marked, if any. Such order
shall limit the issues for hearing to those not disposed of by
agreement or admission of the parties, and shall schedule the
formal investigation within ten (10) days from its issuance, unless
a later date is mutually agreed in writing by the parties
concerned."[67]
The records show that on August 27, 1997, petitioner submitted his
Answer Ad Cautelam where he disputed the truth of the allegations that he barged
into the session hall of the capitol and committed physical violence to harass the
private respondents who were opposed to any move for the province to contract
a P150 million loan from PNB. In his Order of October 8, 1997, Undersecretary
Sanchez admitted petitioner's Answer Ad Cautelam but treated it as a position
paper. On October 15, 1997, petitioner filed a Motion to Conduct Formal
Investigation.Petitioner reiterated this motion on October 29, 1997. Petitioner's
motion was denied on November 11, 1997. Secretary Barbers found petitioner
guilty as charged on the basis of the parties' position papers. On January 8, 1998,
Executive Secretary Torres adopted Secretary Barbers' findings and
recommendations and imposed on petitioner the penalty of six (6) months
suspension without pay.
The rejection of petitioner's right to a formal investigation denied him
procedural due process. Section 5 of A. O. No. 23 provides that at the preliminary
conference, the Investigating Authority shall summon the parties to consider
whether they desire a formal investigation. This provision does not give the
Investigating Authority the discretion to determine whether a formal investigation
would be conducted. The records show that petitioner filed a motion for formal
investigation. As respondent, he is accorded several rights under the law, to wit:
"Sec. 65. Rights of Respondent. -- The respondent shall be
accorded full opportunity to appear and defend himself in person
or by counsel, to confront and cross-examine the witnesses
against him, and to require the attendance of witnesses and the
production of documentary evidence in his favor through
compulsory process of subpoena or subpoena duces tecum."
An erring elective local official has rights akin to the constitutional rights of an
accused.[68] These rights are essentially part of procedural due process.[69] The
local elective official has the (1) right to appear and defend himself in person or by
counsel; (2) the right to confront and cross-examine the witnesses against him;
and (3) the right to compulsory attendance of witness and the production of
documentary evidence. These rights are reiterated in the Rules Implementing the
Local Government Code[70] and in A.O. No. 23.[71] Well to note, petitioner formally
claimed his right to a formal investigation after his Answer Ad Cautelam has been
admitted by Undersecretary Sanchez.
Petitioner's right to a formal investigation was not satisfied when the complaint
against him was decided on the basis of position papers. There is nothing in the
Local Government Code and its Implementing Rules and Regulations nor in A.O.
No. 23 that provide that administrative cases against elective local officials can be
decided on the basis of position papers. A.O. No. 23 states that the Investigating
Authority may require the parties to submit their respective memoranda but this is
only after formal investigation and hearing.[72] A.O. No. 23 does not authorize the
Investigating Authority to dispense with a hearing especially in cases involving
allegations of fact which are not only in contrast but contradictory to each
other. These contradictions are best settled by allowing the examination and
cross-examination of witnesses. Position papers are often-times prepared with
the assistance of lawyers and their artful preparation can make the discovery of
truth difficult. The jurisprudence cited by the DILG in its order denying petitioner's
motion for a formal investigation applies to appointive officials and
employees. Administrative disciplinary proceedings against elective government
officials are not exactly similar to those against appointive officials. In fact, the
provisions that apply to elective local officials are separate and distinct from
appointive government officers and employees. This can be gleaned from the
Local Government Code itself.
In the Local Government Code, the entire Title II of Book I of the Code is
devoted to elective officials. It provides for their qualifications and
election,[73] vacancies and succession,[74]local legislation,[75] disciplinary
actions,[76] and recall.[77] Appointive officers and employees are covered in Title III
of Book I of the Code entitled "Human Resources and Development." All matters
pertinent to human resources and development in local government units are
regulated by "the civil service law and such rules and regulations and other
issuances promulgated thereto, unless otherwise provided in the Code."[78] The
"investigation and adjudication of administrative complaints against appointive
local officials and employees as well as their suspension and removal" are "in
accordance with the civil service law and rules and other pertinent laws," the
results of which "shall be reported to the Civil Service Commission."[79]
It is the Administrative Code of 1987, specifically Book V on the Civil Service,
that primarily governs appointive officials and employees. Their qualifications are
set forth in the Omnibus Rules Implementing Book V of the said Code. The
grounds for administrative disciplinary action in Book V are much more in number
and are specific than those enumerated in the Local Government Code against
elective local officials.[80] The disciplining authority in such actions is the Civil
Service Commission[81] although the Secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities are also given the power to
investigate and decide disciplinary actions against officers and employees under
their jurisdiction.[82] When a complaint is filed and the respondent answers, he
must "indicate whether or not he elects a formal investigation if his answer is not
considered satisfactory."[83] If the officer or employee elects a formal investigation,
the direct evidence for the complainant and the respondent "consist[s] of the
sworn statement and documents submitted in support of the complaint and
answer, as the case may be, without prejudice to the presentation of additional
evidence deemed necessary x x x, upon which the cross-examination by
respondent and the complainant, respectively, is based."[84] The investigation is
conducted without adhering to the technical rules applicable in judicial
proceedings."[85] Moreover, the appointive official or employee may be removed or
dismissed summarily if (1) the charge is serious and the evidence of guilt is strong;
(2) when the respondent is a recidivist; and (3) when the respondent is notoriously
undesirable.[86]
The provisions for administrative disciplinary actions against elective local
officials are markedly different from appointive officials.[87] The rules on the
removal and suspension of elective local officials are more stringent. The
procedure of requiring position papers in lieu of a hearing in administrative cases
is expressly allowed with respect to appointive officials but not to those
elected. An elective official, elected by popular vote, is directly responsible to the
community that elected him. The official has a definite term of office fixed by law
which is relatively of short duration. Suspension and removal from office definitely
affects and shortens this term of office. When an elective official is suspended or
removed, the people are deprived of the services of the man they had
elected. Implicit in the right of suffrage is that the people are entitled to the
services of the elective official of their choice.[88] Suspension and removal are thus
imposed only after the elective official is accorded his rights and the evidence
against him strongly dictates their imposition.
IN VIEW WHEREOF, the Resolution of January 8, 1998 of the public
respondent Executive Secretary is declared null and void and is set aside. No
Cost.
SO ORDERED.
Regalado, (Chairman), Melo, Mendoza, and Martinez, JJ., concur.

[1]
Letter-complaint, Annex "E" to the Petition, Rollo, pp. 80-81.
[2]
Cover-page of Letter-complaint, Annex "D" to the Petition, Rollo, pp. 78-79.
[3]
Annex "E" to the Petition, Rollo, p. 80.
[4]
The complaint was docketed as DILG Administrative Case No. P-02-96.
[5]
Order dated September 20, 1996, Annex "H" to the Petition, Rollo, p. 85.
[6]
Motion to Dismiss of Petitioner Joson, Annex "O" to the Petition, Rollo, p. 107.
[7]
DILG Records, pp. 148, 149.
[8]
DILG Records, p. 188.
[9]
DILG Records, p. 160.
[10]
DILG Records, p. 187.
[11]
DILG Records, p. 169.
[12]
DILG Records, p. 186.
[13] DILG Records, p. 184.
[14]
Annex "J" to the Petition, Rollo, p. 88.
[15]
Annex "N" to the Petition, Rollo, pp. 101-102.
[16]
Order, Annex "P" to the Petition, Rollo, pp. 114-115.
[17]
Order dated July 11, 1997, Annex "T" to the Petition, Rollo, pp. 125-126.
[18]
Memoranda of Secretary Barbers, Annexes "U," "V," and "W" to the Petition, Rollo, pp.
127-129.
[19]
CA-G.R. SP No. 44694.
[20]
Order dated August 20, 1997, Annex "Z" to the Petition, Rollo, pp. 175-177.
[21]
Annex "AA" to the Petition, Rollo, pp. 178-181.
[22]
Annex "AA-1" to the Petition, Rollo, pp. 182-187.
[23]
Resolution of the Executive Secretary suspending Governor Joson, Annex "C" to the Motion for
Leave to File Herein Incorporated Urgent Motion for the Issuance of a TRO and/or Writ of
preliminary Injunction, p. 3, Rollo, p. 246.
[24]
Annexes "II," "JJ," and "KK," to the Petition, Rollo, pp. 209- 212.
[25]
Order dated October 8, 1997, Annex "DD" to the Petition, Rollo, p. 201.
[26]
Annex "CC" to the Petition, Rollo, pp. 195-200.
[27]
The Decision was penned by Associate Justice Portia Alino-Hormachuelos and concurred by
Associate Justices Emeterio Cui and Buenaventura Guerrero.
[28]
Annex "A" to the Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of
TRO and/or Writ of Preliminary Injunction, Rollo, pp. 239-242.
[29]
The Resolution reads:
"x x x. The complained acts tested against the foregoing, we find respondent to be liable for the
acts complained of and consequently, must be sanctioned administratively."(Resolution of the
Executive Secretary quoting the Resolution of the DILG Secretary, pp. 4-5, Rollo, pp 247-248).
[30]
Resolution of the Executive Secretary, p. 3, Rollo, p. 246.
[31]
Order of Executive Secretary Ruben Torres, Annex "C" to the Motion for Leave to File Herein
Incorporated Urgent Motion for the Issuance of a TRO and/or a Writ of Preliminary
Injunction" Rollo, pp. 244-248.
[32]
Rollo, pp. 289- 291.
[33]
Petition, pp. 16-17, Rollo, pp. 26-27.
[34]
Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance, etc., pp. 6-7, Rollo,
pp. 226-227.
[35]
Issued by President Ramos on December 17, 1992 and took effect in February 1993. This has
been amended by A.O. No. 159, Nov. 25, 1994.
[36]
Section 1, Rule 13, A.O. No. 23.
[37]
Local Government Code of 1991.
[38]
Petition, pp. 19, 21, Rollo, pp. 29, 31.
[39]
Petition, pp. 22-23, Rollo, pp. 32-33.
[40]
Section 249 in relation to Section 246, Article II, Chapter 11, Title IV, Book II, Revised
Administrative Code.
[41]
Annex "FF" to the Petition, Rollo, p. 206.
[42]
Vda. de Gabriel v. Court of Appeals, 264 SCRA 137, 143 [1996]; Sy v. Habacon-Garayblas,
228 SCRA 644, 647 [1993]; Oshita v. Republic, 19 SCRA 700, 702 [1967].
[43]
Id.
[44]
Buenaventura v. Halili-Uy, 149 SCRA 22, 26 [1987]; Quimpo v. de la Victoria, 46 SCRA 139,
145 [1972]; Oshita v. Republic, 19 SCRA 700 [1967].
[45]
Buenaventura v. Halili-Uy, supra, at 26; Oshita v. Republic, supra, at 703.
[46]
Sections 2 and 3, A.O. No. 23 as amended by A.O. No. 159 which took effect on November 25,
1994.
[47]
The President's power of supervision over local governments was taken from Section 10
(1), Article VII of the 1935 Constitution which reads:
"Section 10 (1). The President shall have control of all the executive departments, bureaus, or
offices, exercise general supervision over all local governments as may be provided by law, and
take care that the laws be faithfully executed."
The 1935 Constitution lumped both the power of control and supervision in one provision. The
1987 Constitution carries the two powers in separate provisions.
[48]
Ganzon v. Court of Appeals, 200 SCRA 271, 283-284 [1991]; Mondano v. Silvosa, 97 Phil. 143,
147 [1955].
[49]
Mondano v. Silvosa, supra, at 147-148.
[50]
Bernas, the 1987 Constitution of the Republic of the Philippines: A Commentary, pp.
968-969[1996]; III Record of the Constitutional Commission 451-452, 453-454.
[51]
Ganzon v. Court of Appeals, supra, at 283.
[52]
Hebron v. Reyes, 104 Phil. 175, 186-189 [1958]; Ganzon v. Kayanan, 104 Phil. 483, 488-489
[1958]; also cited in Martin, the Revised Administrative Code, vol. 1, pp. 299-301 [1961].
[53]
Planas v. Gil, 67 Phil. 62, 77-78 [1939]; see also Villena v. Secretary of the Interior, 67 Phil.
451, 459 [1939].
[54]
Pimentel, The Local Government Code of 1991, p. 173. [1993].
[55]
Carpio v. Executive Secretary, 206 SCRA 290, 295-296 [1992].
[56]
Id., at 295.
[57] Section 17, Article VII, 1987 Constitution.
[58]
Carpio v. Executive Secretary, supra, at 295.
[59]
Id.
[60]
Villena v. Secretary of the Interior, 67 Phil. 451, 464 [1939].
[61]
Rule 5 is entitled "Preliminary Investigation."
[62]
See Pimentel, supra, at 174 -- "[T]he Office of the President may conduct a preliminary
assessment of the case."
[63]
He was granted three extensions or a total of 60 days less fifteen (15) days -- fifteen days
because his first extension of 30 days was counted from the time he received a copy of the
complaint, not from the time the first 15-day period expired.
[64]
Id.
[65]
Annex "T" to the Petition, Rollo, pp. 125-126.
[66]
Order of Undersecretary Sanchez, Annex "A" to the Motion for Leave to File Herein
Incorporated Motion for the Issuance of a TRO and/or a Writ of Preliminary Injunction, Rollo, pp.
241-242.
[67]
Sections 3 to 5, Rule 5, A.O. No. 23.
[68]
Section 14 (2), Bill of Rights, 1987 Constitution.
[69]
See Section 1, Rule 7, A.O. No. 23.
[70]
Article 129.
[71] Section 1, Rule 7.
[72]
Section 13, Rule 7, A.O. No. 23.
[73]
Chapter 1.
[74]
Chapter 2.
[75]
Chapter 3.
[76]
Chapter 4.
[77] Chapter 5.
[78]
Section 78, Title III, Book I, Local Government Code of 1991.
[79]
Section 84, Id.
[80]
Section 46, Chapter 6, Book V of the Administrative Code of 1987 lists 30 grounds for the
suspension or dismissal of an officer or employee in the Civil Service.
[81]
Section 47 (1), Id.
[82] Section 47, (2), Id.
[83]
Section 48 (2), Id.
[84]
Section 48 (5), Id.
[85]
Section 48 (7), Id.
[86]
Section 50, Id.
[87]
Nera v. Garcia and Elicano, 106 Phil. 1031, 1037 [1960].
[88] Nera v. Garcia and Elicano, supra; see also Layno, Sr. v. Sandiganbayan, 136 SCRA 536, 541

[1985].
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 167798 April 19, 2006

KILUSANG MAYO UNO, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG

MAYO UNO (NAFLU-KMU), JOSELITO V. USTAREZ, EMILIA P. DAPULANG, SALVADOR
T. CARRANZA, MARTIN T. CUSTODIO, JR. and ROQUE M. TAN, Petitioners,
vs.
THE DIRECTOR-GENERAL, NATIONAL ECONOMIC DEVELOPMENT AUTHORITY, and
THE SECRETARY, DEPARTMENT OF BUDGET and MANAGEMENT, Respondents.

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

G.R. No. 167930 April 19, 2006

BAYAN MUNA Representatives SATUR C. OCAMPO, TEODORO A. CASIO, and JOEL

G. VIRADOR, GABRIELA WOMENS PARTY Representative LIZA L. MAZA,
ANAKPAWIS Representatives RAFAEL V. MARIANO and CRISPIN B. BELTRAN, Rep.
FRANCIS G. ESCUDERO, Rep. EDUARDO C. ZIALCITA, Rep. LORENZO R. TAADA III,
DR. CAROL PAGADUAN-ARAULLO and RENATO M. REYES, JR. of BAYAN, MARIE
HILAO-ENRIQUEZ of KARAPATAN, ANTONIO L. TINIO of ACT, FERDINAND GAITE of
COURAGE, GIOVANNI A. TAPANG of AGHAM, WILFREDO MARBELLA GARCIA, of
KMP, LANA LINABAN of GABRIELA, AMADO GAT INCIONG, RENATO CONSTANTINO,
JR., DEAN PACIFICO H. AGABIN, SHARON R. DUREMDES of the NATIONAL COUNCIL
OF CHURCHES IN THE PHILIPPINES, and BRO. EDMUNDO L. FERNANDEZ (FSC) of the
ASSOCIATION OF MAJOR RELIGIOUS SUPERIORS OF THE PHILIPPINES
(AMRSP), Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, ROMULO NERI, in his
capacity as Director-General of the NATIONAL ECONOMIC and DEVELOPMENT
AUTHORITY (NEDA) and the Administrator of the NATIONAL STATISTICS OFFICE
(NSO), Respondents.

DECISION

CARPIO, J.:

This case involves two consolidated petitions for certiorari, prohibition, and mandamus under
Rule 65 of the Rules of Court, seeking the nullification of Executive Order No. 420 (EO 420)
on the ground that it is unconstitutional.

EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005, reads:

REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED AND

CONTROLLED CORPORATIONS TO STREAMLINE AND HARMONIZE THEIR
IDENTIFICATION (ID) SYSTEMS, AND AUTHORIZING FOR SUCH PURPOSE THE
DIRECTOR-GENERAL, NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY TO
IMPLEMENT THE SAME, AND FOR OTHER PURPOSES

WHEREAS, good governance is a major thrust of this Administration;

WHEREAS, the existing multiple identification systems in government have created

unnecessary and costly redundancies and higher costs to government, while making it
inconvenient for individuals to be holding several identification cards;

WHEREAS, there is urgent need to streamline and integrate the processes and issuance of
identification cards in government to reduce costs and to provide greater convenience for
those transacting business with government;

WHEREAS, a unified identification system will facilitate private businesses, enhance the
integrity and reliability of government-issued identification cards in private transactions, and
prevent violations of laws involving false names and identities.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines by virtue of the powers vested in me by law, do hereby direct the following:

Section 1. Adoption of a unified multi-purpose identification (ID) system for

government. All government agencies, including government-owned and controlled
1avv ph il.n et

corporations, are hereby directed to adopt a unified multi-purpose ID system to ensure the
attainment of the following objectives:

a. To reduce costs and thereby lessen the financial burden on both the government and the
public brought about by the use of multiple ID cards and the maintenance of redundant
database containing the same or related information;

b. To ensure greater convenience for those transacting business with the government and
those availing of government services;

c. To facilitate private businesses and promote the wider use of the unified ID card as
provided under this executive order;

d. To enhance the integrity and reliability of government-issued ID cards; and

e. To facilitate access to and delivery of quality and effective government service.

Section 2. Coverage All government agencies and government-owned and controlled

corporations issuing ID cards to their members or constituents shall be covered by this
executive order.

Section 3. Data requirement for the unified ID system The data to be collected and
recorded by the participating agencies shall be limited to the following:

Name

Home Address

Sex
Picture

Signature

Date of Birth

Place of Birth

Marital Status

Names of Parents

Height

Weight

Two index fingers and two thumbmarks

Any prominent distinguishing features like moles and others

Tax Identification Number (TIN)

Provided that a corresponding ID number issued by the participating agency and a common
reference number shall form part of the stored ID data and, together with at least the first five
items listed above, including the print of the right thumbmark, or any of the fingerprints as
collected and stored, shall appear on the face or back of the ID card for visual verification
purposes.

Section 4. Authorizing the Director-General, National Economic and Development

Authority, to Harmonize All Government Identification Systems. The Director-General,
National Economic Development Authority, is hereby authorized to streamline and harmonize
all government ID systems.

Section 5. Functions and responsibilities of the Director-General, National Economic

and Development Authority. In addition to his organic functions and responsibilities, the
Director-General, National Economic and Development Authority, shall have the following
functions and responsibilities:

a. Adopt within sixty (60) days from the effectivity of this executive order a unified government
ID system containing only such data and features, as indicated in Section 3 above, to validly
establish the identity of the card holder:

b. Enter into agreements with local governments, through their respective leagues of
governors or mayors, the Commission on Elections (COMELEC), and with other branches or
instrumentalities of the government, for the purpose of ensuring government-wide adoption of
and support to this effort to streamline the ID systems in government;

b. Call on any other government agency or institution, or create subcommittees or technical

working groups, to provide such assistance as may be necessary or required for the effective
performance of its functions; and
d. Promulgate such rules or regulations as may be necessary in pursuance of the objectives
of this executive order.

Section 6. Safeguards. The Director-General, National Economic and Development

Authority, and the pertinent agencies shall adopt such safeguard as may be necessary and
adequate to ensure that the right to privacy of an individual takes precedence over efficient
public service delivery. Such safeguards shall, as a minimum, include the following:

a. The data to be recorded and stored, which shall be used only for purposes of establishing
the identity of a person, shall be limited to those specified in Section 3 of this executive order;

b. In no case shall the collection or compilation of other data in violation of a persons right to
privacy shall be allowed or tolerated under this order;

c. Stringent systems of access control to data in the identification system shall be instituted;

d. Data collected and stored for this purpose shall be kept and treated as strictly confidential
and a personal or written authorization of the Owner shall be required for access and
disclosure of data;

e. The identification card to be issued shall be protected by advanced security features and
cryptographic technology; and

f. A written request by the Owner of the identification card shall be required for any correction
or revision of relevant data, or under such conditions as the participating agency issuing the
identification card shall prescribe.

Section 7. Funding. Such funds as may be recommended by the Department of Budget

and Management shall be provided to carry out the objectives of this executive order.

Section 8. Repealing clause. All executive orders or issuances, or portions thereof, which
are inconsistent with this executive order, are hereby revoked, amended or modified
accordingly.

Section 9. Effectivity. This executive order shall take effect fifteen (15) days after its
publication in two (2) newspapers of general circulation.

DONE in the City of Manila, this 13th day of April, in the year of Our Lord, Two Thousand and
Five.

Thus, under EO 420, the President directs all government agencies and government-owned
and controlled corporations to adopt a uniform data collection and format for their existing
identification (ID) systems.

Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional because it constitutes
usurpation of legislative functions by the executive branch of the government. Furthermore,
they allege that EO 420 infringes on the citizens right to privacy.1

Petitioners in G.R. No. 167930 allege that EO 420 is void based on the following grounds:
1. EO 420 is contrary to law. It completely disregards and violates the decision of this
Honorable Court inOple v. Torres et al., G.R. No. 127685, July 23, 1998. It also violates RA
8282 otherwise known as the Social Security Act of 1997.

2. The Executive has usurped the legislative power of Congress as she has no power to issue
EO 420. Furthermore, the implementation of the EO will use public funds not appropriated by
Congress for that purpose.

3. EO 420 violates the constitutional provisions on the right to privacy

(i) It allows access to personal confidential data without the owners consent.

(ii) EO 420 is vague and without adequate safeguards or penalties for any violation of its
provisions.

(iii) There are no compelling reasons that will legitimize the necessity of EO 420.

4. Granting without conceding that the President may issue EO 420, the Executive Order was
issued without public hearing.

5. EO 420 violates the Constitutional provision on equal protection of laws and results in the
discriminatory treatment of and penalizes those without ID.2

Issues

Essentially, the petitions raise two issues. First, petitioners claim that EO 420 is a usurpation
of legislative power by the President. Second, petitioners claim that EO 420 infringes on the
citizens right to privacy.

Respondents question the legal standing of petitioners and the ripeness of the petitions. Even
assuming that petitioners are bereft of legal standing, the Court considers the issues raised
under the circumstances of paramount public concern or of transcendental significance to the
people. The petitions also present a justiciable controversy ripe for judicial determination
because all government entities currently issuing identification cards are mandated to
implement EO 420, which petitioners claim is patently unconstitutional. Hence, the Court
takes cognizance of the petitions.

The Courts Ruling

The petitions are without merit.

On the Alleged Usurpation of Legislative Power

Section 2 of EO 420 provides, "Coverage. All government agencies and government-owned

and controlled corporations issuing ID cards to their members or constituents shall be
covered by this executive order." EO 420 applies only to government entities that issue ID
cards as part of their functions under existing laws. These government entities have already
been issuing ID cards even prior to EO 420. Examples of these government entities are the
GSIS,3 SSS,4 Philhealth,5 Mayors Office,6 LTO,7 PRC,8 and similar government entities.
Section 1 of EO 420 directs these government entities to "adopt a unified multi-purpose ID
system." Thus, all government entities that issue IDs as part of their functions under existing
laws are required to adopt a uniform data collection and format for their IDs. Section 1 of EO
420 enumerates the purposes of the uniform data collection and format, namely:

a. To reduce costs and thereby lessen the financial burden on both the government and the
public brought about by the use of multiple ID cards and the maintenance of redundant
database containing the same or related information;

b. To ensure greater convenience for those transacting business with the government and
those availing of government services;

c. To facilitate private businesses and promote the wider use of the unified ID card as
provided under this executive order;

d. To enhance the integrity and reliability of government-issued ID cards; and

e. To facilitate access to and delivery of quality and effective government service.

In short, the purposes of the uniform ID data collection and ID format are to reduce costs,
achieve efficiency and reliability, insure compatibility, and provide convenience to the people
served by government entities.

Section 3 of EO 420 limits the data to be collected and recorded under the uniform ID system
to only 14 specific items, namely: (1) Name; (2) Home Address; (3) Sex; (4) Picture; (5)
Signature; (6) Date of Birth; (7) Place of Birth; (8) Marital Status; (9) Name of Parents; (10)
Height; (11) Weight; (12) Two index fingers and two thumbmarks; (13) Any prominent
distinguishing features like moles or others; and (14) Tax Identification Number.

These limited and specific data are the usual data required for personal identification by
government entities, and even by the private sector. Any one who applies for or renews a
drivers license provides to the LTO all these 14 specific data.

At present, government entities like LTO require considerably more data from applicants for
identification purposes. EO 420 will reduce the data required to be collected and recorded in
the ID databases of the government entities. Government entities cannot collect or record
data, for identification purposes, other than the 14 specific data.

Various laws allow several government entities to collect and record data for their ID systems,
either expressly or impliedly by the nature of the functions of these government entities.
Under their existing ID systems, some government entities collect and record more data than
what EO 420 allows. At present, the data collected and recorded by government entities are
disparate, and the IDs they issue are dissimilar.

In the case of the Supreme Court,9 the IDs that the Court issues to all its employees, including
the Justices, contain 15 specific data, namely: (1) Name; (2) Picture; (3) Position; (4) Office
Code Number; (5) ID Number; (6) Height; (7) Weight; (8) Complexion; (9) Color of Hair; (10)
Blood Type; (11) Right Thumbmark; (12) Tax Identification Number; (13) GSIS Policy Number;
(14) Name and Address of Person to be Notified in Case of Emergency; and (15) Signature. If
we consider that the picture in the ID can generally also show the sex of the employee, the
Courts ID actually contains 16 data.
In contrast, the uniform ID format under Section 3 of EO 420 requires only "the first five items
listed" in Section 3, plus the fingerprint, agency number and the common reference number,
or only eight specific data. Thus, at present, the Supreme Courts ID contains far more data
than the proposed uniform ID for government entities under EO 420. The nature of the data
contained in the Supreme Court ID is also far more financially sensitive, specifically the Tax
Identification Number.

Making the data collection and recording of government entities unified, and making their ID
formats uniform, will admittedly achieve substantial benefits. These benefits are savings in
terms of procurement of equipment and supplies, compatibility in systems as to hardware and
software, ease of verification and thus increased reliability of data, and the user-friendliness of
a single ID format for all government entities.

There is no dispute that government entities can individually limit the collection and recording
of their data to the 14 specific items in Section 3 of EO 420. There is also no dispute that
these government entities can individually adopt the ID format as specified in Section 3 of EO
420. Such an act is certainly within the authority of the heads or governing boards of the
government entities that are already authorized under existing laws to issue IDs.

A unified ID system for all these government entities can be achieved in either of two ways.
First, the heads of these existing government entities can enter into a memorandum of
agreement making their systems uniform. If the government entities can individually adopt a
format for their own ID pursuant to their regular functions under existing laws, they can also
adopt by mutual agreement a uniform ID format, especially if the uniform format will result in
substantial savings, greater efficiency, and optimum compatibility. This is purely an
administrative matter, and does not involve the exercise of legislative power.

Second, the President may by executive or administrative order direct the government entities
under the Executive department to adopt a uniform ID data collection and format. Section 17,
Article VII of the 1987 Constitution provides that the "President shall have control of all
executive departments, bureaus and offices." The same Section also mandates the President
to "ensure that the laws be faithfully executed."

Certainly, under this constitutional power of control the President can direct all government
entities, in the exercise of their functions under existing laws, to adopt a uniform ID data
collection and ID format to achieve savings, efficiency, reliability, compatibility, and
convenience to the public. The Presidents constitutional power of control is self-executing
and does not need any implementing legislation.

Of course, the Presidents power of control is limited to the Executive branch of government
and does not extend to the Judiciary or to the independent constitutional commissions. Thus,
EO 420 does not apply to the Judiciary, or to the COMELEC which under existing laws is also
authorized to issue voters ID cards.10 This only shows that EO 420 does not establish a
national ID system because legislation is needed to establish a single ID system that is
compulsory for all branches of government.

The Constitution also mandates the President to ensure that the laws are faithfully executed.
There are several laws mandating government entities to reduce costs, increase efficiency,
and in general, improve public services.11 The adoption of a uniform ID data collection and
format under EO 420 is designed to reduce costs, increase efficiency, and in general, improve
public services. Thus, in issuing EO 420, the President is simply performing the constitutional
duty to ensure that the laws are faithfully executed.
Clearly, EO 420 is well within the constitutional power of the President to promulgate. The
President has not usurped legislative power in issuing EO 420. EO 420 is an exercise of
Executive power the Presidents constitutional power of control over the Executive
department. EO 420 is also compliance by the President of the constitutional duty to ensure
that the laws are faithfully executed.

Legislative power is the authority to make laws and to alter or repeal them. In issuing EO 420,
the President did not make, alter or repeal any law but merely implemented and executed
existing laws. EO 420 reduces costs, as well as insures efficiency, reliability, compatibility and
user-friendliness in the implementation of current ID systems of government entities under
existing laws. Thus, EO 420 is simply an executive issuance and not an act of legislation.

The act of issuing ID cards and collecting the necessary personal data for imprinting on the ID
card does not require legislation. Private employers routinely issue ID cards to their
employees. Private and public schools also routinely issue ID cards to their students. Even
private clubs and associations issue ID cards to their members. The purpose of all these ID
cards is simply to insure the proper identification of a person as an employee, student, or
member of a club. These ID cards, although imposed as a condition for exercising a privilege,
are voluntary because a person is not compelled to be an employee, student or member of a
club.

What require legislation are three aspects of a government maintained ID card system. First,
when the implementation of an ID card system requires a special appropriation because there
is no existing appropriation for such purpose. Second, when the ID card system is compulsory
on all branches of government, including the independent constitutional commissions, as well
as compulsory on all citizens whether they have a use for the ID card or not. Third, when the
ID card system requires the collection and recording of personal data beyond what is routinely
or usually required for such purpose, such that the citizens right to privacy is infringed.

In the present case, EO 420 does not require any special appropriation because the existing
ID card systems of government entities covered by EO 420 have the proper appropriation or
funding. EO 420 is not compulsory on all branches of government and is not compulsory on
all citizens. EO 420 requires a very narrow and focused collection and recording of personal
data while safeguarding the confidentiality of such data. In fact, the data collected and
recorded under EO 420 are far less than the data collected and recorded under the ID
systems existing prior to EO 420.

EO 420 does not establish a national ID card system. EO 420 does not compel all citizens to
have an ID card. EO 420 applies only to government entities that under existing laws are
already collecting data and issuing ID cards as part of their governmental functions. Every
government entity that presently issues an ID card will still issue its own ID card under its own
name. The only difference is that the ID card will contain only the five data specified in Section
3 of EO 420, plus the fingerprint, the agency ID number, and the common reference number
which is needed for cross-verification to ensure integrity and reliability of identification.

This Court should not interfere how government entities under the Executive department
should undertake cost savings, achieve efficiency in operations, insure compatibility of
equipment and systems, and provide user-friendly service to the public. The collection of ID
data and issuance of ID cards are day-to-day functions of many government entities under
existing laws. Even the Supreme Court has its own ID system for employees of the Court and
all first and second level courts. The Court is even trying to unify its ID system with those of
the appellate courts, namely the Court of Appeals, Sandiganbayan and Court of Tax Appeals.
There is nothing legislative about unifying existing ID systems of all courts within the Judiciary.
The same is true for government entities under the Executive department. If government
entities under the Executive department decide to unify their existing ID data collection and ID
card issuance systems to achieve savings, efficiency, compatibility and convenience, such
act does not involve the exercise of any legislative power. Thus, the issuance of EO 420 does
not constitute usurpation of legislative power.

On the Alleged Infringement of the Right to Privacy

All these years, the GSIS, SSS, LTO, Philhealth and other government entities have been
issuing ID cards in the performance of their governmental functions. There have been no
complaints from citizens that the ID cards of these government entities violate their right to
privacy. There have also been no complaints of abuse by these government entities in the
collection and recording of personal identification data.

In fact, petitioners in the present cases do not claim that the ID systems of government
entities prior to EO 420 violate their right to privacy. Since petitioners do not make such claim,
they even have less basis to complain against the unified ID system under EO 420. The data
collected and stored for the unified ID system under EO 420 will be limited to only 14 specific
data, and the ID card itself will show only eight specific data. The data collection, recording
and ID card system under EO 420 will even require less data collected, stored and revealed
than under the disparate systems prior to EO 420.

Prior to EO 420, government entities had a free hand in determining the kind, nature and
extent of data to be collected and stored for their ID systems. Under EO 420, government
entities can collect and record only the 14 specific data mentioned in Section 3 of EO 420. In
addition, government entities can show in their ID cards only eight of these specific data,
seven less data than what the Supreme Courts ID shows.

Also, prior to EO 420, there was no executive issuance to government entities prescribing
safeguards on the collection, recording, and disclosure of personal identification data to
protect the right to privacy. Now, under Section 5 of EO 420, the following safeguards are
instituted:

a. The data to be recorded and stored, which shall be used only for purposes of establishing
the identity of a person, shall be limited to those specified in Section 3 of this executive order;

b. In no case shall the collection or compilation of other data in violation of a persons right to
privacy be allowed or tolerated under this order;

c. Stringent systems of access control to data in the identification system shall be instituted;

d. Data collected and stored for this purpose shall be kept and treated as strictly confidential
and a personal or written authorization of the Owner shall be required for access and
disclosure of data;

e. The identification card to be issued shall be protected by advanced security features and
cryptographic technology;
f. A written request by the Owner of the identification card shall be required for any correction
or revision of relevant data, or under such conditions as the participating agency issuing the
identification card shall prescribe.

On its face, EO 420 shows no constitutional infirmity because it even narrowly limits the data
that can be collected, recorded and shown compared to the existing ID systems of
government entities. EO 420 further provides strict safeguards to protect the confidentiality of
the data collected, in contrast to the prior ID systems which are bereft of strict administrative
safeguards.

The right to privacy does not bar the adoption of reasonable ID systems by government
entities. Some one hundred countries have compulsory national ID systems, including
democracies such as Spain, France, Germany, Belgium, Greece, Luxembourg, and Portugal.
Other countries which do not have national ID systems, like the United States, Canada,
Australia, New Zealand, Ireland, the Nordic Countries and Sweden, have sectoral cards for
health, social or other public services.12 Even with EO 420, the Philippines will still fall under
the countries that do not have compulsory national ID systems but allow only sectoral cards
for social security, health services, and other specific purposes.

Without a reliable ID system, government entities like GSIS, SSS, Philhealth, and LTO cannot
perform effectively and efficiently their mandated functions under existing laws. Without a
reliable ID system, GSIS, SSS, Philhealth and similar government entities stand to suffer
substantial losses arising from false names and identities. The integrity of the LTOs licensing
system will suffer in the absence of a reliable ID system.

The dissenting opinion cites three American decisions on the right to privacy, namely,
Griswold v. Connecticut,13U.S. Justice Department v. Reporters Committee for Freedom of
the Press,14 and Whalen v. Roe.15 The last two decisions actually support the validity of EO
420, while the first is inapplicable to the present case.

In Griswold, the U.S. Supreme Court declared unconstitutional a state law that prohibited the
use and distribution of contraceptives because enforcement of the law would allow the police
entry into the bedrooms of married couples. Declared the U.S. Supreme Court: "Would we
allow the police to search the sacred precincts of the marital bedrooms for telltale signs of the
use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the
marriage relationship." Because the facts and the issue involved in Griswold are materially
different from the present case, Griswold has no persuasive bearing on the present case.

In U.S. Justice Department, the issue was not whether the State could collect and store
information on individuals from public records nationwide but whether the State could withhold
such information from the press. The premise of the issue in U.S. Justice Department is that
the State can collect and store in a central database information on citizens gathered from
public records across the country. In fact, the law authorized the Department of Justice to
collect and preserve fingerprints and other criminal identification records nationwide. The law
also authorized the Department of Justice to exchange such information with "officials of
States, cities and other institutions." The Department of Justice treated such information as
confidential. A CBS news correspondent and the Reporters Committee demanded the
criminal records of four members of a family pursuant to the Freedom of Information Act. The
U.S. Supreme Court ruled that the Freedom of Information Act expressly exempts release of
information that would "constitute an unwarranted invasion of personal privacy," and the
information demanded falls under that category of exempt information.
With the exception of the 8 specific data shown on the ID card, the personal data collected
and recorded under EO 420 are treated as "strictly confidential" under Section 6(d) of EO 420.
These data are not only strictly confidential but also personal matters. Section 7, Article III of
the 1987 Constitution grants the "right of the people to information on matters of public
concern." Personal matters are exempt or outside the coverage of the peoples right to
information on matters of public concern. The data treated as "strictly confidential" under EO
420 being private matters and not matters of public concern, these data cannot be released to
the public or the press. Thus, the ruling in U.S. Justice Department does not collide with EO
420 but actually supports the validity EO 420.

Whalen v. Roe is the leading American case on the constitutional protection for control over
information. In Whalen, the U.S. Supreme Court upheld the validity of a New York law that
required doctors to furnish the government reports identifying patients who received
prescription drugs that have a potential for abuse. The government maintained a central
computerized database containing the names and addresses of the patients, as well as the
identity of the prescribing doctors. The law was assailed because the database allegedly
infringed the right to privacy of individuals who want to keep their personal matters
confidential. The U.S. Supreme Court rejected the privacy claim, and declared:

Disclosures of private medical information to doctors, to hospital personnel, to insurance

companies, and to public health agencies are often an essential part of modern medical
practice even when the disclosure may reflect unfavorably on the character of the patient.
Requiring such disclosures to representatives of the State having responsibility for the health
of the community does not automatically amount to an impermissible invasion of privacy.
(Emphasis supplied)

Compared to the personal medical data required for disclosure to the New York State in
Whalen, the 14 specific data required for disclosure to the Philippine government under EO
420 are far less sensitive and far less personal. In fact, the 14 specific data required under EO
420 are routine data for ID systems, unlike the sensitive and potentially embarrassing medical
records of patients taking prescription drugs. Whalen, therefore, carries persuasive force for
upholding the constitutionality of EO 420 as non-violative of the right to privacy.

Subsequent U.S. Supreme Court decisions have reiterated Whalen. In Planned Parenthood
of Central Missouri v. Danforth,16 the U.S. Supreme Court upheld the validity of a law that
required doctors performing abortions to fill up forms, maintain records for seven years, and
allow the inspection of such records by public health officials. The U.S. Supreme Court ruled
that "recordkeeping and reporting requirements that are reasonably directed to the
preservation of maternal health and that properly respect a patients confidentiality and
privacy are permissible."

Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,17 the U.S. Supreme

Court upheld a law that required doctors performing an abortion to file a report to the
government that included the doctors name, the womans age, the number of prior
pregnancies and abortions that the woman had, the medical complications from the abortion,
the weight of the fetus, and the marital status of the woman. In case of state-funded
institutions, the law made such information publicly available. In Casey, the U.S. Supreme
Court stated: "The collection of information with respect to actual patients is a vital element of
medical research, and so it cannot be said that the requirements serve no purpose other than
to make abortion more difficult."
Compared to the disclosure requirements of personal data that the U.S. Supreme Court have
upheld in Whalen, Danforth and Casey as not violative of the right to privacy, the disclosure
requirements under EO 420 are far benign and cannot therefore constitute violation of the
right to privacy. EO 420 requires disclosure of 14 personal data that are routine for ID
purposes, data that cannot possibly embarrass or humiliate anyone.

Petitioners have not shown how EO 420 will violate their right to privacy. Petitioners cannot
show such violation by a mere facial examination of EO 420 because EO 420 narrowly draws
the data collection, recording and exhibition while prescribing comprehensive safeguards.
Ople v. Torres18 is not authority to hold that EO 420 violates the right to privacy because in
that case the assailed executive issuance, broadly drawn and devoid of safeguards, was
annulled solely on the ground that the subject matter required legislation. As then Associate
Justice, now Chief Justice Artemio V. Panganiban noted in his concurring opinion in Ople v.
Torres, "The voting is decisive only on the need for appropriate legislation, and it is only on
this ground that the petition is granted by this Court."

EO 420 applies only to government entities that already maintain ID systems and issue ID
cards pursuant to their regular functions under existing laws. EO 420 does not grant such
government entities any power that they do not already possess under existing laws. In
contrast, the assailed executive issuance in Ople v. Torres sought to establish a "National
Computerized Identification Reference System,"19 a national ID system that did not exist prior
to the assailed executive issuance. Obviously, a national ID card system requires legislation
because it creates a new national data collection and card issuance system where none
existed before.

In the present case, EO 420 does not establish a national ID system but makes the existing
sectoral card systems of government entities like GSIS, SSS, Philhealth and LTO less costly,
more efficient, reliable and user-friendly to the public. Hence, EO 420 is a proper subject of
executive issuance under the Presidents constitutional power of control over government
entities in the Executive department, as well as under the Presidents constitutional duty to
ensure that laws are faithfully executed.

WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is declared VALID.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

(On leave)
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Asscociate Justice

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ

 Associate Justice Asscociate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Asscociate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes

1
Rollo, pp. 6-7.

2
Rollo, pp. 15-16.

3
Government Service Insurance System.

4
Social Security System.

5
Philippine Health Insurance Corporation. Section 8 of RA No. 7875 (National Health
Insurance Act) provides: "SECTION 8. Health Insurance ID Card. In conjunction with the
enrollment provided above, the Corporation through its local office shall issue a health
insurance ID which shall be used for purposes of identification, eligibility verification, and
utilization recording. The issuance of this ID card shall be accompanied by a clear explanation
to the enrollee of his rights, privileges and obligations as a member. A list of health care
providers accredited by the Local Health Insurance Office shall likewise be attached thereto."
6
Section 4(m) of RA No. 7432 (Senior Citizens Act), as expanded by RA No. 9257, provides:

"In the availment of the privileges mentioned above, the senior citizen or elderly person may
submit as proof of his/her entitlement thereto any of the following:

(a) an ID issued by the city or municipal mayor or of the barangay captain of the place where
the senior citizen or the elderly resides;

(b) the passport of the elderly person or senior citizen concerned; and

x x x."

7
Land Transportation Office. Section 24 of RA No. 4136 (Land Transportation and Traffic
Code, as amended) provides: "SECTION 24. Use of Drivers License and Identification Card.
Every license issued under the provisions of this Act to any driver shall entitle the holder
thereof, while the same is valid and effective, to operate motor vehicles described in such
license: Provided, however, That every licensed professional driver, before operating a public
utility vehicle registered under classification (b) of Section seven hereof, as amended by
Batas Pambansa Bilang 74, shall secure from the Director, upon payment of the sum of five
pesos, a drivers identification card which he shall, at all times while so operating a public
utility vehicle, display in plain sight in the vehicle being operated. The identification card shall
be issued simultaneously with the license.

8
Professional Regulation Commission. Section 19 of RA No. 9292 (Electronics Engineering
Law of 2004) provides: "SECTION 19. Issuance of the Certificate of Registration and
Professional Identification Card. x x x

A Professional Identification Card bearing the registration number, date of registration, duly
signed by the Chairperson of the Commission, shall likewise be issued to every registrant who
has paid the prescribed fee. This identification card will serve as evidence that the holder
thereof is duly registered with the Commission." See also Section 19 of RA No. 9200
(Philippine Geodetic Engineering Act of 1998).

9
Like GSIS and SSS, there is no express provision of law authorizing the Supreme Court to
issue ID cards to its employees. However, any employer necessarily must issue ID cards to
its employees for several purposes. First, an ID card is necessary to identify those who may
enter the premises of the employer, especially in areas where non-employees are prohibited.
Second, an ID or reference number is necessary for a computerized payroll system. Third, an
ID card is necessary to identify those who can withdraw stock or borrow property of the
employer. In the case of GSIS and SSS, they issue ID cards not only to their employees but
also to their members. Like any mutual association, GSIS and SSS can issue membership
cards to their members who contribute to the trust funds they administer and who are entitled
to the corresponding benefits.

10
Sections 126 and 128 of the Omnibus Election Code (BP Blg. 881) provide: "SECTION 126.
Registration of voters. On the seventh and sixth Saturdays before a regular election or on
the second Saturday following the day of the proclamation calling for a new special election,
plebiscite or referendum, any person desiring to be registered as a voter shall accomplish in
triplicate before the board of election inspectors a voters affidavit in which shall be stated the
following data:
(a) Name, surname, middle name, maternal surname;

(b) Date and place of birth;

(c) Citizenship;

(d) Periods of residence in the Philippines and in the place of registration;

(e) Exact address with the name of the street and house number or in case there is none, a
brief description of the locality and the place;

(f) A statement that the applicant has not been previously registered, otherwise he shall be
required to attach a sworn application for cancellation of his previous registration; and

(g) Such other information or data which may be required by the Commission.

The voters affidavit shall also contain three specimens of the applicants signature and clear
and legible prints of his left and right hand thumbmarks and shall be sworn to and filed
together with four copies of the latest identification photograph to be supplied by the applicant.

The oath of the applicant shall include a statement that he does not have any of the
disqualifications of a voter and that he has not been previously registered in the precinct or in
any other precinct.

Before the applicant accomplishes his voters affidavit, the board of election inspectors shall
appraise the applicant of the qualifications and disqualifications prescribed by law for a voter.
It shall also see to it that the accomplished voter's affidavit contains all the data therein
required and that the applicant's specimen signatures, the prints of his left and right hand
thumbmarks and his photograph are properly affixed in each of the voters affidavit.

xxx

SECTION 128. Voters identification. The identification card issued to the voter shall serve
and be considered as a document for the identification of each registered voter: Provided,
however, That if the voters identity is challenged on election day and he cannot present his
voter identification card, his identity may be established by the specimen signatures, the
photograph or the fingerprints in his voters affidavit in the book of voters. No extra or
duplicate copy of the voter identification card shall be prepared and issued except upon
authority of the Commission.

Each identification card shall bear the name and the address of the voter, his date of birth, sex,
civil status, occupation, his photograph, thumbmark, the city or municipality and number of the
polling place where he is registered, his signature, his voter serial number and the signature
of the chairman of the board of election inspectors.

Any voter previously registered under the provisions of Presidential Decree Numbered 1896
who desires to secure a voter identification card shall, on any registration day, provide four
copies of his latest identification photograph to the board of election inspectors which upon
receipt thereof shall affix one copy thereof to the voters affidavit in the book of voters, one
copy to the voter identification card to be issued to the voter and transmit through the election
registrar, one copy each to the provincial election supervisor and the Commission to be
respectively attached to the voter's affidavit in their respective custody."

11
Section 48, Chapter 5, Book VI of the Revised Administrative Code of 1987 provides:
"SECTION 48. Cost Reduction. Each head of a department, bureau, office or agency shall
implement a cost reduction program for his department, bureau, office or agency for the
purpose of reducing cost of operations and shall submit to the President reports on the results
of the implementation thereof. The Department of Budget shall provide technical and other
necessary assistance in the design and implementation of cost reduction activities. An
incentive award not exceeding one months salary may be granted to any official or employee
whose suggestion for cost reduction has been adopted and shall have actually resulted in
cost reduction, payable from the savings resulting therefrom.

Similarly, Section 54 of PD No. 1177 (Budget Reform Decree of 1977) provides: "SECTION
54. Cost Reduction. Each head of department, bureau, office or agency shall implement a
cost reduction program for his department, bureau, office or agency for the purpose of
reducing cost of operations and shall submit to the President reports on the results of the
implementation thereof. The Budget Commission shall provide technical and other necessary
assistance in the design and implementation of cost reduction activities. An incentive award
not exceeding one month's salary may be granted to any official or employee whose
suggestion for cost reduction has been adopted and shall have actually resulted in cost
reduction, payable from the savings resulting therefrom.

In addition, the annual General Appropriations Act contains similar provisions mandating cost
reduction in all government offices.

Moreover, Section (a) of RA No. 6713 (Code of Conduct and Ethical Standards for Public
Officials and Employees) also provides: "Commitment to public interest. x x x All
government resources and powers of their respective offices must be employed and used
efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds
and revenues." (Emphasis supplied)

12
Identity Cards, Privacy International,
http://www.privacy.org/pi/activities/idcard/idcard_faq.html.

13
381 U.S. 479 (1965).

14
489 U.S. 749 (1989).

15
429 U.S. 589 (1977).

16
428 U.S. 52 (1976).

17
505 U.S. 833 (1992).

18
354 Phil. 948 (1998).

19
Section 1 of Administrative Order No. 308 dated 12 December 1996 states: "SEC 1.
Establishment of a National Computerized Identification Reference System. A decentralized
Identification Reference System among the key basic services and social security providers is
hereby established."
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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.).

Joseph 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 violation 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,4 even 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 declaring 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 wisdom or 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, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

#Footnotes

1 Annex "E," rollo, pp. 37-55.

2 Annex "A," rollo, pp. 27-36.

3 Rollo, p. 256.

4 Sec. 19(1).

5 Art. VIII, Sec. 4(2), Constitution.

6 Mondano v. Silvosa, 97 Phil. 143; Hebron v. Reyes, 104 Phil. 175; Tecson v. Salas, 34
SCRA 282.

7 Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions.

8 Sec. 5. Each local government unit shall have the power to create its own sources of
revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as
the Congress may provide, consistent with the basic policy of local autonomy. Such taxes,
fees, and charges shall accrue exclusively to the local governments.

9 200 SCRA 512.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 189028 July 16, 2013

NATIONAL ARTIST FOR LITERATURE VIRGILIO ALMARIO, NATIONAL ARTIST FOR

LITERATURE BIENVENIDO LUMBERA, NATIONAL ARTIST FOR VISUAL ARTS
(PAINTING) BENEDICTO CABRERA, NATIONAL ARTIST FOR VISUAL ARTS
(SCULPTURE) NAPOLEON ABUEVA, NATIONAL ARTIST FOR VISUAL ARTS
(PAINTING AND SCULPTURE) ARTURO LUZ, NATIONAL ARTIST FOR PRODUCTION
DESIGN SALVADOR BERNAL, UNIVERSITY PROFESSOR EMERITUS GEMINO ABAD,
DEAN MARVIC M.V.F. LEONEN (UP COLLEGE OF LAW), DEAN DANILO SILVESTRE
(UP COLLEGE OF ARCHITECTURE), DEAN ROLAND TOLENTINO (UP COLLEGE OF
MASS COMMUNICATION), PROF. JOSE DALISAY, DR. ANTON JUAN, DR. ALEXANDER
CORTEZ, DR. JOSE NEIL GARCIA, DR. PEDRO JUN CRUZ REYES, PROF. JOSE
CLAUDIO GUERRERO, PROF. MICHAEL M. COROZA, PROF. GERARD LICO, PROF.
VERNE DE LA PENA, PROF. MARIAN ABUAN, PROF. THEODORE O. TE, DR. CRISTINA
PANTOJA-HIDALGO, PROF. JOSE WENDELL CAPILI, PROF. SIR ANRIAL TIATCO,
PROF. NICOLO DEL CASTILLO, PROF. HORACIO DUMANLIG, PROF. DANTON
REMOTO, PROF. PRISCELINA PATAJOLEGASTO, PROF. BELEN CALINGACION,
PROF. AMIEL Y. LEONARDIA, PROF. VIM NADERA, PROF. MARILYN CANTA, PROF.
CECILIA DELA PAZ, ROF. CHARLSON ONG, PROF. CLOD MARLON YAMBAO, PROF.
KENNETH JAMANDRE, PROF. JETHRO JOAQUIN, ATTY. F.D. NICOLAS B. PICHAY,
ATTY. ROSE BEATRIX ANGELES, MR. FERNANDO JOSEF, MS. SUSAN S. LARA, MR.
ALFRED YUSON, MS. JING PANGANIBANMENDOZA, MR. ROMULO BAQUIRAN, JR.,
MR. CARLJOE JAVIER, MS. REBECCA T. ANONUEVO, MR. JP ANTHONY D. CUNADA,
MS. LEAH NAVARRO, MR. MARK MEILLY, MR. VERGEL O. SANTOS, MR. GIL OLEA
MENDOZA, MR. EDGAR C. SAMAR, MS. CHRISTINE BELLEN, MR. ANGELO R.
LACUESTA, MS. ANNA MARIA KATIGBAKLACUESTA, MR. LEX LEDESMA, MS. KELLY
PERIQUET, MS. CARLA PACIS, MR. J. ALBERT GAMBOA, MR. CESAR EVANGELISTA
BUENDIA, MR. PAOLO ALCAZAREN, MR. ALWYN C. JAVIER, MR. RAYMOND MAGNO
GARLITOS, MS. GANG BADOY, MR. LESLIE BOCOBO, MS. FRANCES BRETANA, MS.
JUDITH TORRES, MS. JANNETTE PINZON, MS. JUNE POTICAR-DALISAY, MS.
CAMILLE DE LA ROSA, MR. JAMES LADIORAY, MR. RENATO CONSTANTINO, JR., and
CONCERNED ARTISTS OF THE PHILIPPINES (CAP), Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF THE DEPARTMENT OF BUDGET
AND MANAGEMENT, THE CULTURAL CENTER OF THE PHILIPPINES, THE NATIONAL
COMMISSION ON CULTURE AND THE ARTS, MS. CECILE GUIDOTE-ALVAREZ, MR.
CARLO MAGNO JOSE CAPARAS,1 MR. JOSE MORENO, MR. FRANCISCO MANOSA,
AND ALL PERSONS, PUBLIC AND PRIVATE, ACTING UNDER THEIR INSTRUCTIONS,
DIRECTION, CONTROL AND SUPERVISION IN RELATION TO THE CONFERMENT OF
THE ORDER OF THE NATIONAL ARTIST AND THE RELEASE OF FUNDS IN RELATION
TO THE CONFERMENT OF THE HONORS AND PRIVILEGES OF THE ORDER OF
NATIONAL ARTISTS ON RESPONDENTS GUIDOTE-ALVAREZ, CAPARAS, MORENO
AND MANOSA, Respondents.

DECISION
LEONARDO-DE CASTRO, J.:

Art has traditionally been viewed as the expression of everything that is true, good and
beautiful. As such, it is perceived to evoke and produce a spirit of harmony. Art is also
considered as a civilizing force, a catalyst of nation-building. The notion of art and artists as
privileged expressions of national culture helped shape the grand narratives of the nation and
shared symbols of the people. The artist does not simply express his/her own individual
inspiration but articulates the deeper aspirations of history and the soul of the people.2 The
law recognizes this role and views art as something that "reflects and shapes values, beliefs,
aspirations, thereby defining a peoples national identity."3 If unduly politicized, however, art
and artists could stir controversy and may even cause discord, as what happened in this
case.

The Antecedents

History of the Order of National Artists

On April 27, 1972, former President Ferdinand E. Marcos issued Proclamation No. 10014 and,
upon recommendation of the Board of Trustees of the Cultural Center of the Philippines
(CCP), created the category of Award and Decoration of National Artist to be awarded to
Filipinos who have made distinct contributions to arts and letters. In the same issuance,
Fernando Amorsolo was declared as the first National Artist.

On May 15, 1973, Proclamation No. 11445 was issued. It amended Proclamation No. 1001
"by creating a National Artists Awards Committee" that would "administer the conferment of
the category of National Artist" upon deserving Filipino artists. The Committee, composed of
members of the Board of Trustees of the CCP, was tasked to "draft the rules to guide its
deliberations in the choice of National Artists, to the end that those who have created a body
of work in the arts and letters capable of withstanding the test of time will be so recognized."

The authority of the National Artists Awards Committee to administer the conferment of the
National Artist Award was again reiterated in Presidential Decree No. 2086 issued on June 7,
1973.

On April 3, 1992, Republic Act No. 7356, otherwise known as the Law Creating the National
Commission for Culture and the Arts, was signed into law. It established the National
Commission for Culture and the Arts (NCCA) and gave it an extensive mandate over the
development, promotion and preservation of the Filipino national culture and arts and the
Filipino cultural heritage. The NCCA was tasked with the following:

Sec. 8. The Commission. A National Commission for Culture and Arts is hereby created to
formulate policies for the development of culture and arts; implement these policies in
coordination with affiliated cultural agencies; coordinate the implementation of programs of
these affiliated agencies; administer the National Endowment Fund for Culture and Arts
(NEFCA); encourage artistic creation within a climate of artistic freedom; develop and
promote the Filipino national culture and arts; and preserve Filipino cultural heritage. The
Commission shall be an independent agency. It shall render an annual report of its activities
and achievements to the President and to Congress.

Among the specific mandates of the NCCA under Republic Act No. 7356 is to "extend
recognition of artistic achievement through awards, grants and services to artists and cultural
groups which contribute significantly to the Filipinos cultural legacy."7 In connection with this
mandate, the NCCA is vested with the power to "advise the President on matters pertaining to
culture and the arts, including the creation of a special decoration or award, for persons who
have significantly contributed to the development and promotion of Philippine culture and
arts."8

As both the CCP Board of Trustees and the NCCA have been mandated by law to promote,
develop and protect the Philippine national culture and the arts, and authorized to give awards
to deserving Filipino artists, the two bodies decided to team up and jointly administer the
National Artists Award.9 Thereafter, they reviewed the guidelines for the nomination, selection
and administration of the National Artists Award. Pursuant to their respective powers to draft
and promulgate rules, regulations and measures to guide them in their deliberations in the
choice of National Artists, the CCP and NCCA adopted the following revised guidelines in
September 200710:

4. ADMINISTRATION OF THE AWARD

4.1. The National Commission for Culture and the Arts (NCCA) shall plan,
organize and implement the Order of National Artists in coordination with the
Cultural Center of the Philippines (CCP).

4.2. It shall enlist the support and cooperation of private sector experts from
the various fields of art to ensure that the awards are implemented in a
successful and impartial manner.

4.3. The National Artist Award Secretariat shall commission art experts to
form a Special Research Group who shall verify information submitted on
nominees and provide essential data.

They shall be selected for their specialization and familiarity with the works
and accomplishments of nominated artists.

4.4. The Special Research Group shall be composed of ten (10) to twenty (20)
members who have expertise in one or more fields or disciplines.

4.5. The National Artist Award Council of Experts shall be created before or
during the nomination period. It is tasked to screen nominees and recommend
to the NCCA and CCP Boards the candidates for the Order of National Artists.
It shall be composed of highly regarded peers, scholars, (including cultural
philosophers and historians), academicians, researchers, art critics, and other
knowledgeable individuals. A wider age-range of experts who would have
first-hand knowledge of achievements of nominees shall be considered.

4.6. The selection of the members of the National Artist Award Council of
Experts shall be based on the following criteria:

(a) should have achieved authority, credibility and track record in his field(s) of
expertise;

(b) should have extensive knowledge in his field(s) and his views on Philippine
art and culture must be national in perspective;
(c) should be a recognized authority in the study or research of Philippine art
and culture;

(d) must be willing to devote sufficient time and effort to the work of the
Council;

(e) must be willing to sign a non-disclosure statement in order to safeguard

the confidentiality of the deliberations;

(f) must not have been convicted with finality of any crime by a court of justice
or dismissed for cause by any organization, whether public or private.

4.7. The National Artist Award Council of Experts shall be composed of a

maximum of seven (7) members each of the seven (7) areas/disciplines. The
living National Artists will automatically become members in addition to the
forty-nine (49) selected members. These members will constitute the first
deliberation panel and will be invited to evaluate the nominations and
materials submitted by the Special Research Group.

4.8. Any member of the Council of Experts who is nominated or related to a

nominee up to the fourth degree of consanguinity or affinity shall inhibit
himself/herself from the deliberation process. Likewise, any member may
decline to participate in the deliberation for any reason or may be removed for
just cause upon recommendation to the NCCA Board by at least two thirds
(2/3) of the members; in which case, the National Artist Award Secretariat
shall again select the replacements for those who decline or resigned until the
first deliberation panel is completed.

4.9. The list of nominated members of the National Artist Award Council of
Experts shall be reviewed by the National Artist Award Secretariat as needed,
for purposes of adding new members or replacements.

4.10. The members of the National Artist Award Council of Experts shall serve
for a fixed term of three (3) years.

5. CRITERIA FOR SELECTION

The Order of National Artists shall be given to:

5.1 Living artists who are Filipino citizens at the time of nomination, as well as
those who died after the establishment of the award in 1972 but were Filipino
citizens at the time of their death.

5.2 Artists who through the content and form of their works have contributed in
building a Filipino sense of nationhood.

5.3. Artists who have pioneered in a mode of creative expression or style, thus,
earning distinction and making an impact on succeeding generations of
artists.
5.4. Artists who have created a substantial and significant body of works
and/or consistently displayed excellence in the practice of their art form thus
enriching artistic expression or style.

5.5 Artists who enjoy broad acceptance through:

5.5.1. prestigious national and/or international recognition, such as the Gawad

CCP Para sa Sining, CCP Thirteen Artists Award and NCCA Alab ng Haraya

5.5.2. critical acclaim and/or reviews of their works

5.5.3. respect and esteem from peers.

6. NOMINATION PROCEDURE

6.1. The National Artist Award Secretariat shall announce the opening of
nominations through media releases and letters to qualified organizations.

6.2. Candidates may be nominated under one or more of the following

categories:

6.2.1. Dance choreography, direction and/or performance.

6.2.2. Music composition, direction, and/or performance.

6.2.3. Theater direction, performance and/or production design.

6.2.4. Visual Arts painting, sculpture, printmaking, photography, installation

art, mixed media works, illustration, comics/komiks, graphic arts, performance
art and/or imaging.

6.2.5. Literature poetry, fiction (short story, novel and play); non-fiction
(essay, journalism, literary criticism and historical literature).

6.2.6. Film and Broadcast Arts direction, writing, production design,

cinematography, editing, camera work, and/or performance.

6.2.7. Architecture, Design and Allied Arts architecture design, interior

design, industrial arts design, landscape architecture and fashion design.

6.3. Nominations for the Order of National Artists may be submitted by

government and non-government cultural organizations and educational
institutions, as well as private foundations and councils.

6.4. Members of the Special Research Group, as well as agencies attached to

the NCCA and CCP shall not submit nominations.

6.5. NCCA and CCP Board members and consultants and NCCA and CCP
officers and staff are automatically disqualified from being nominated.
6.6. Nominations shall be accepted only when these are submitted in writing
and with proper supporting documentation, as follows:

6.6.1. A cover letter signed by the head or designated representative of the

nominating organization.

The cover letter shall be accompanied by a Board Resolution approving the

nominee concerned with the said resolution signed by the organization
President and duly certified by the Board Secretary.

6.6.2. A duly accomplished nomination form;

6.6.3. A detailed curriculum vitae of the nominee;

6.6.4. A list of the nominees significant works categorized according to the

criteria;

6.6.5. The latest photograph (color or black and white) of the nominee, either
5" x 7" or 8" x 11";

6.6.6. Pertinent information materials on the nominees significant works (on

CDs, VCDs and DVDs);

6.6.7. Copies of published reviews;

6.6.8. Any other document that may be required.

6.7. Nominations received beyond the announced deadline for the submission
of nominations shall not be considered.

6.8. The National Artist Award Secretariat shall announce the opening of
nominations through media releases.

6.9. All inquiries and nominations shall be submitted to

The NATIONAL ARTIST AWARD SECRETARIAT

Office of the Artistic Director Cultural Center of the Philippines Roxas

Boulevard, 1300 Pasay City or The NATIONAL ARTIST AWARD
SECRETARIAT Office of the Deputy Executive Director National Commission
for Culture and the Arts 633 General Luna Street, Intramuros, Manila

7. SCREENING AND SELECTION PROCESS

7.1. The National Artist Award Secretariat shall pre-screen the nominees
based on technical guideline items 5.1, 6.2, 6.3, 6.4, 6.5 and 6.6. The
pre-screening shall not be based on the accomplishments and merits of the
nominee.
7.2. The Special Research Group shall accomplish its task within six (6)
months. The main objective is to verify the validity of the data, and evaluate
the quality, true value and significance of works according to the criteria. It
shall come up with the updated and comprehensive profiles of nominees
reflecting their most outstanding achievements.

7.3. The National Artist Award Secretariat will meet to review the list of
nominees for oversights. Consequently, deserving nominees shall be added
to the list.

7.4. The first deliberation panel (Council of Experts) shall be intra-disciplinary.

The panelists shall be grouped according to their respective fields of expertise
or disciplines to shortlist the nominees in their disciplines or categories for
presentation to the second deliberation panel.

7.5. The second deliberation panel shall be composed of a different set of

experts from the first deliberation panel three (3) experts each of the seven (7)
areas/discipline and may include members from varying backgrounds such as
critics and academicians. The achievements of each shortlisted nominee shall
be presented by one designated member of Council of Experts. Then panel
deliberates and ranks the shortlisted nominees according to the order of
precedence following the set criteria of the Order of National Artists. In
extreme cases, the Second Deliberation may add new names to the lists.

7.6. The second deliberation panel may recommend not to give award in any
category if no nominee is found deserving. The number of awardees shall also
depend on the availability of funds. All decisions and recommendations shall
be in writing.

7.7. The recommendations from the Second Deliberation Panel of the

National Artist Award Council of Experts shall then be presented to the joint
boards of NCCA and CCP for final selection. The presentors shall prepare
their presentation in writing together with an audio-visual presentation or
powerpoint presentation. Written interpellations/opinions will be accepted from
selected critics. The review shall be based on the ranking done by the Second
Deliberation. The voting shall be across disciplines. The National Artists will
be given the option whether to vote on all categories or on his/her particular
discipline.

7.8. Proxy votes will not be allowed in the Selection Process. Designation of
permanent representatives of agencies should be made at the outset to make
them regular Board members of NCCA and thus, may be allowed to cast
votes.

7.9. The list of awardees shall be submitted to the President of the Republic of
the Philippines for confirmation, proclamation and conferral.

8. PRESENTATION OF THE AWARDS

8.1. The Order of National Artists shall not be conferred more frequently than
every three (3) years.
 8.2. The Order of National Artists shall be conferred by the President of the
Philippines on June 11 or any appropriate date in fitting ceremonies to be
organized by the National Artist Secretariat.

8.3. The medallion of the Order of National Artists and citation shall be given
to the honoree during the conferment ceremony. The cash award
of P100,000.00 in cheque shall be given immediately after the ceremony or at
another time and place as requested by the honoree.

8.4. A posthumous conferral consisting of the medallion and citation shall be

given to the family or legal heir/s of the honoree. The cash award
of P75,000.00 in cheque shall be given to the honorees legal heir/s or a
representative designated by the family immediately after the ceremony or at
another time and place as requested by the family. (Emphases supplied.)

In 1996, the NCCA and the CCP created a National Artist Award Secretariat composed of the
NCCA Executive Director as Chairperson, the CCP President as Vice-Chairperson, and the
NCCA Deputy Executive Director, the CCP Vice-President/Artistic Director, the NCCA
National Artist Award Officer and the CCP National Artist Award Officer as members. They
also centralized with the NCCA all financial resources and management for the administration
of the National Artists Award. They added another layer to the selection process to involve
and allow the participation of more members of the arts and culture sector of the Philippines in
the selection of who may be proclaimed a National Artist.

On September 19, 2003, Executive Order No. 236, s. 2003, entitled Establishing the Honors
Code of the Philippines to Create an Order of Precedence of Honors Conferred and for Other
Purposes, was issued. The National Artists Award was renamed the Order of National Artists
and raised to the level of a Cultural Order, fourth in precedence among the orders and
decorations that comprise the Honors of the Philippines. Executive Order No. 236, s. 2003,
recognizes the vital role of the NCCA and the CCP in identifying Filipinos who have made
distinct contributions to arts and letters and states that the National Artist recognition is
conferred "upon the recommendation of the Cultural Center of the Philippines and the
National Commission for Culture and the Arts."12 Executive Order No. 236, s. 2003, further
created a Committee on Honors to "assist the President in evaluating nominations for
recipients of Honors,"13 including the Order of National Artists, and presidential awards. The
Committee on Honors has been allowed to "authorize relevant department or government
agencies to maintain Honors and/or Awards Committees to process nominations for Honors
and/or Presidential Awards."14In this connection, Section 2.4(A) of the Implementing Rules
and Regulations15 of Executive Order No. 236, s. 2003, states:

2.4: Awards Committees

There shall be two types of awards committees: the Committee on Honors and the various
awards committees in the various units of the government service.

A. The Committee on Honors

The Committee on Honors serves as a National Awards Committee. It is composed of the

following:

The Executive Secretary, Chairman

The Secretary of Foreign Affairs, Vice-Chairman

Head, Presidential Management Staff, member

Presidential Assistant for Historical Affairs, member

Chief of Presidential Protocol, member

Chief of Protocol, DFA, member

All nominations from the various awards committees must be submitted to the Committee on
Honors via the Chancellery of Philippine Orders and State Decorations. The Chancellery shall
process nominations for the consideration of the Committee on Honors. The Committee on
Honors shall screen and recommend these nominations to the President.

The Committee on Honors shall, as a general rule, serve as a screening committee to ensure
that nominations received from the various awards committees meet two tests: that there has
not been an abuse of discretion in making the nomination, and that the nominee is in good
standing. Should a nomination meet these criteria, a recommendation to the President for
conferment shall be made.

The President of the Philippines takes the recommendations of the Committee on Honors in
the highest consideration when making the final decision on the conferment of awards.
(Emphasis supplied.)

Executive Order No. 435, s. 2005, entitled Amending Section 5(IV) of Executive Order No.
236 Entitled "Establishing the Honors Code of the Philippines to Create an Order of
Precedence of Honors Conferred and for Other Purposes" was subsequently issued on June
8, 2005. It amended the wording of Executive Order No. 236, s. 2003, on the Order of
National Artists and clarified that the NCCA and the CCP "shall advise the President on the
conferment of the Order of National Artists."

Controversy Surrounding the 2009

Order of National Artists

Petitioners alleged that on January 30, 2007, a joint meeting of the NCCA Board of
Commissioners and the CCP Board of Trustees was held to discuss, among others, the
evaluation of the 2009 Order of National Artists and the convening of the National Artist
Award Secretariat. The nomination period was set for September 2007 to December 31, 2007,
which was later extended to February 28, 2008. The pre-screening of nominations was held
from January to March 2008.16

On April 3, 2009, the First Deliberation Panel met.17 A total of 87 nominees18 were considered
during the deliberation and a preliminary shortlist19 of 32 names was compiled.

On April 23, 2009, the Second Deliberation Panel purportedly composed of an entirely new
set of Council of Experts met and shortlisted 13 out of the 32 names in the preliminary
shortlist.20 On May 6, 2009, the final deliberation was conducted by the 30-member Final
Deliberation Panel comprised of the CCP Board of Trustees and the NCCA Board of
Commissioners and the living National Artists.21 From the 13 names in the second shortlist, a
final list of four names was agreed upon.22 The final list, according to rank, follows:
 Name Art Field/Category Number of Votes
Manuel Conde (+) Film and Broadcast Arts (Film) 26
Ramon Santos Music 19
Lazaro Francisco (+) Literature 15
Federico Aguilar-Alcuaz Visual Arts 15

On May 6, 2009, a letter, signed jointly by the Chairperson of the NCCA, Undersecretary
Vilma Labrador, and the President and Artistic Director of the CCP, Mr. Nestor Jardin, was
sent to the President.23 The letter stated, thus:

May 6, 2009

Her Excellency GLORIA MACAPAGAL-ARROYO

President of the Philippines
Malacaan Palace, Manila

Subject: 2009 Order of National Artist Awardees

Dear President Arroyo:

We are respectfully submitting a recommendation of the NCCA Board of

Trustees and CCP Board of Trustees for the Proclamation of the following as
2009 Order of National Artists:

1. Mr. MANUEL CONDE+ (Posthumous) Film and Broadcast Arts

2. Dr. RAMON SANTOS Music

3. Mr. LAZARO FRANCISCO+ (Posthumous) Literature

4. Mr. FEDERICO AGUILAR-ALCUAZ Visual Arts

The above persons were identified by experts in the various fields of arts and
culture, including living National Artists. An intensive selection process was
observed following established practice. In the past, awards were presented
by the President at a Ceremony held at the Malacaan Palace followed by a
program called "Parangal" at the Cultural Center of the Philippines. We also
propose to continue with past practice of celebrating the life and works of the
four (4) Order of National Artists through an exhibit that will open and a
commemorative publication that will be released on the day of the
proclamation.

We respectfully suggest, subject to Her Excellencys availability, that the

Proclamation be on June 11, 2009, if possible at the Malacaan Palace.

Thank you for your kind attention.

Very respectfully yours,

 (Sgd.)
VILMA L. LABRADOR
Chairman
National Commission for Culture and the Arts

(Sgd.)
NESTOR O. JARDIN
President and Artistic Director
Cultural Center of the Philippines24

According to respondents, the aforementioned letter was referred by the Office of the
President to the Committee on Honors. Meanwhile, the Office of the President allegedly
received nominations from various sectors, cultural groups and individuals strongly endorsing
private respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas, Francisco Maosa
and Jose Moreno. The Committee on Honors purportedly processed these nominations and
invited resource persons to validate the qualifications and credentials of the nominees.25

The Committee on Honors thereafter submitted a memorandum to then President Gloria

Macapagal-Arroyo recommending the conferment of the Order of National Artists on the four
recommendees of the NCCA and the CCP Boards, as well as on private respondents
Guidote-Alvarez, Caparas, Maosa and Moreno. Acting on this recommendation,
Proclamation No. 1823 declaring Manuel Conde a National Artist was issued on June 30,
2009. Subsequently, on July 6, 2009, Proclamation Nos. 1824 to 1829 were issued declaring
Lazaro Francisco, Federico AguilarAlcuaz and private respondents Guidote-Alvarez, Caparas,
Maosa and Moreno, respectively, as National Artists. This was subsequently announced to
the public by then Executive Secretary Eduardo Ermita on July 29, 2009.26

Convinced that, by law, it is the exclusive province of the NCCA Board of Commissioners and
the CCP Board of Trustees to select those who will be conferred the Order of National Artists
and to set the standard for entry into that select group, petitioners instituted this petition for
prohibition, certiorari and injunction (with prayer for restraining order) praying that the Order of
National Artists be conferred on Dr. Santos and that the conferment of the Order of National
Artists on respondents Guidote-Alvarez, Caparas, Maosa and Moreno be enjoined and
declared to have been rendered in grave abuse of discretion.27

In a Resolution28 dated August 25, 2009, the Court issued a status quo order29 enjoining
"public respondents" "from conferring the rank and title of the Order of National Artists on
private respondents; from releasing the cash awards that accompany such conferment and
recognition; and from holding the acknowledgment ceremonies for recognition of the private
respondents as National Artists."

What is the nature and scope of the power of the President to confer the Order of the National
Artists and how should it be exercised? This is the essential issue presented in this case. It
will determine whether the proclamation of respondents as National Artists is valid.
Preliminary procedural issues on the standing of the petitioners and the propriety of the
remedies taken,30 however, call for resolution as a prerequisite to the discussion of the main
question.

Contention of the Parties

A perusal of the pleadings submitted by the petitioners reveals that they are an aggrupation of
at least three groups, the National Artists, cultural workers and academics, and the
Concerned Artists of the Philippines (CAP). The National Artists assert an "actual as well as
legal interest in maintaining the reputation of the Order of National Artists."31 In particular, they
invoke their right to due process not to have the honor they have been conferred with
diminished by the irregular and questionable conferment of the award on respondents
Guidote-Alvarez, Caparas, Maosa and Moreno. For petitioners, this would adversely affect
their right to live a meaningful life as it detracts not only from their right to enjoy their honor as
a fruit of their lifelong labor but also from the respect of their peers.32

The cultural workers, academics and CAP claim to be Filipinos who are deeply concerned
with the preservation of the countrys rich cultural and artistic heritage. As taxpayers, they are
concerned about the use of public monies for illegal appointments or spurious acts of
discretion.33

All of the petitioners claim that former President Macapagal-Arroyo gravely abused her
discretion in disregarding the results of the rigorous screening and selection process for the
Order of National Artists and in substituting her own choice for those of the Deliberation
Panels. According to petitioners, the Presidents discretion to name National Artists is not
absolute but limited. In particular, her discretion on the matter cannot be exercised in the
absence of or against the recommendation of the NCCA and the CCP. In adding the names of
respondents Caparas, Guidote-Alvarez, Maosa and Moreno while dropping Dr. Santos from
the list of conferees, the Presidents own choices constituted the majority of the awardees in
utter disregard of the choices of the NCCA and the CCP and the arts and culture community
which were arrived at after a long and rigorous process of screening and deliberation.
Moreover, the name of Dr. Santos as National Artist for Music was deleted from the final list
submitted by the NCCA and the CCP Boards without clearly indicating the basis thereof. For
petitioners, the Presidents discretion to name National Artists cannot be exercised to defeat
the recommendations made by the CCP and NCCA Boards after a long and rigorous
screening process and with the benefit of expertise and experience. The addition of four
names to the final list submitted by the Boards of the CCP and the NCCA and the deletion of
one name from the said list constituted a substitution of judgment by the President and a
unilateral reconsideration without clear justification of the decision of the First, Second and
Final Deliberation Panels composed of experts.34

Petitioners further argue that the choice of respondent GuidoteAlvarez was illegal and
unethical because, as the then Executive Director of the NCCA and presidential adviser on
culture and arts, she was disqualified from even being nominated.35 Moreover, such action on
the part of the former President constituted grave abuse of discretion as it gave preferential
treatment to respondent Guidote-Alvarez by naming the latter a National Artist despite her not
having been nominated and, thus, not subjected to the screening process provided by the
rules for selection to the Order of National Artists. Her inclusion in the list by the President
represented a clear and manifest favor given by the President in that she was exempted from
the process that all other artists have to undergo. According to petitioners, it may be said that
the President used a different procedure to qualify respondent Guidote-Alvarez. This was
clearly grave abuse of discretion for being manifest and undue bias violative of the equal
protection clause.36

Respondent Caparas refutes the contention of the petitioning National Artists and insists that
there could be no prejudice to the latter. They remain to be National Artists and continue to
receive the emoluments, benefits and other privileges pertaining to them by virtue of that
honor. On the other hand, all the other petitioners failed to show any material and personal
injury or harm caused to them by the conferment of the Order of National Artists on
respondents Guidote-Alvarez, Caparas, Maosa and Moreno. The rule on standing may not
be relaxed in favor of the petitioners as no question of constitutionality has been raised and no
issue of transcendental importance is involved.37

Respondent Caparas further argues that the remedies of prohibition and injunction are
improper as the act sought to be enjoined the declaration of respondents Guidote-Alvarez,
Caparas, Maosa and Moreno as National Artists had already been consummated. In
particular, respondent Caparas was already proclaimed National Artist through Proclamation
No. 1827 issued on July 6, 2009.38

On the merits, respondent Caparas contends that no grave abuse of discretion attended his
proclamation as National Artist. The former President considered the respective
recommendations of the NCCA and the CCP Boards and of the Committee on Honors in
eventually declaring him (Caparas) as National Artist. The function of the NCCA and the CCP
Boards is simply to advise the President. The award of the Order of National Artists is the
exclusive prerogative of the President who is not bound in any way by the recommendation of
the NCCA and the CCP Boards. The implementing rules and regulations or guidelines of the
NCCA cannot restrict or limit the exclusive power of the President to select the recipients of
the Order of National Artists.39

For her part, in a letter40 dated March 11, 2010, respondent Guidote-Alvarez manifested that
she was waiving her right to file her comment on the petition and submitted herself to the
Courts discretion and wisdom.

Respondent Maosa manifested that his creations speak for themselves as his contribution to
Filipino cultural heritage and his worthiness to receive the award. Nonetheless, he expressed
his conviction that the Order of National Artists is not a right but a privilege that he would
willingly relinquish should he be found not worthy of it.41

Respondent Moreno did not file any pleading despite being given several opportunities to do
so. Hence, the Court dispensed with his pleadings.42

In a Resolution dated July 12, 2011, this Court gave due course to the petition and required
the parties to file their respective memoranda.43 Respondent Caparas filed his memorandum
on September 8, 2011,44 the CCP filed its memorandum on September 19,
2011,45 respondent Maosa on September 20, 2011,46 and the Office of the Solicitor General
filed a manifestation stating that it is adopting its comment as its memorandum on September
21, 2011.47 Respondent Moreno failed to file a Memorandum, hence, the Court resolved to
dispense with the same.48 Petitioners filed their Memorandum on May 14, 2012.49

On the other hand, the original position of the Office of the Solicitor General (OSG) was
similar to that of respondent Caparas.50 In a subsequent manifestation,51 however, the OSG
stated that the current Board of Commissioners of the NCCA agree with the petitioners that
the President cannot honor as a National Artist one who was not recommended by the joint
Boards of the NCCA and the CCP. The implementing rules and regulations of Executive
Order No. 236, s. 2003, recognized the binding character of the recommendation of the
NCCA and the CCP Boards and limited the authority of the Committee on Honors to the
determination that (1) there has been no grave abuse of discretion on the part of the NCCA
and the CCP Boards in making the nomination, and (2) the nominee is in good standing.
Where a nomination meets the said two criteria, a recommendation to the President to confer
the award shall be made.52
The OSG further argued that, while the President exercises control over the NCCA and the
CCP, the President has the duty to faithfully execute the laws, including the NCCA-CCP
guidelines for selection of National Artists and the implementing rules of Executive Order No.
236, s. 2003. Moreover, the laws recognize the expertise of the NCCA and the CCP in the
arts and tasked them to screen and select the artists to be conferred the Order of National
Artists. Their mandate is clear and exclusive as no other agency possesses such expertise.53

The OSG also assailed the former Presidents choice of respondent Guidote-Alvarez for being
contrary to Republic Act No. 7356.54 Section 11 of the said law provides:

Sec. 11. Membership Restrictions. During his/her term as member of the Commission, a
Commissioner shall not be eligible for any grant, or such other financial aid from the
Commission as an individual: Provided, however, That he/she may compete for grants and
awards on the same level as other artists one (1) year after his/her term shall have expired.

The omission of the word "award" in the first portion of the above provision appears to be
unintentional as shown by the proviso which states that a member may compete for grants
and awards only one year after his or her term shall have expired. As such, respondent
Guidote-Alvarez is restricted and disqualified from being conferred the 2009 Order of National
Artists.55

The Courts Ruling

Standing of the Petitioners

Standing is the determination of whether a specific person is the proper party to bring a matter
to the court for adjudication.56 The gist of the question of standing is whether a party alleges
such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.57

The parties who assail the constitutionality or legality of a statute or an official act must have a
direct and personal interest. They must show not only that the law or any governmental act is
invalid, but also that they sustained or are in immediate danger of sustaining some direct
injury as a result of its enforcement, and not merely that they suffer thereby in some indefinite
way. They must show that they have been or are about to be denied some right or privilege to
which they are lawfully entitled or that they are about to be subjected to some burdens or
penalties by reason of the statute or act complained of.58

In this case, we find that the petitioning National Artists will be denied some right or privilege
to which they are entitled as members of the Order of National Artists as a result of the
conferment of the award on respondents Guidote-Alvarez, Caparas, Maosa and Moreno. In
particular, they will be denied the privilege of exclusive membership in the Order of National
Artists.

In accordance with Section 2(a)59 of Executive Order No. 236, s. 2003, the Order of National
Artists is "an exclusive association of honored individuals." To ensure the exclusivity of the
membership in the Order, a rigid nomination and screening process has been established
with different sets of renowned artists and respected art critics invited to sit as the Council of
Experts for the First and Second Deliberation Panels. Moreover, all living National Artists are
given a voice on who should be included in their exclusive club as they automatically become
members of the Final Deliberation Panel that will vote on who should be included in the final
list to be submitted to the President for conferment of the Order of National Artists. To allow
the untrammeled discretion and authority of the President to confer the Order of National
Artists without regard to the stringent screening and rigorous selection process established by
the NCCA and the CCP will diminish, if not negate, the exclusive nature of the said Order. It
will unduly subject the selection and conferment of the Order of National Artists to politics
rather than to principles and procedures. It will subvert the transparent and rigorous process
and allow entry to the exclusive Order of National Artists through a secret backdoor of
lobbying, back channeling and political accommodation.

Among the other petitioners, Prof. Gemino Abad presents a unique valid personal and
substantial interest. Like respondents Caparas, Maosa and Moreno, he was among the 87
nominees for the 2009 Order of National Artists. Like respondent Moreno, he made it to the
preliminary shortlist. As he did not make it to the second shortlist, he was not considered by
the Final Deliberation Panel, more so by the former President.

It should be recalled too that respondent Guidote-Alvarez was disqualified to be nominated for
being the Executive Director of the NCCA at that time while respondents Maosa and
Caparas did not make it to the preliminary shortlist and respondent Moreno was not included
in the second shortlist. Yet, the four of them were treated differently and considered favorably
when they were exempted from the rigorous screening process of the NCCA and the CCP
and conferred the Order of National Artists. The Committee on Honors and the former
President effectively treated respondents Guidote-Alvarez, Caparas, Maosa and Moreno as
a preferred class. The special treatment accorded to respondents Guidote-Alvarez, Caparas,
Maosa and Moreno fails to pass rational scrutiny.60 No real and substantial distinction
between respondents and petitioner Abad has been shown that would justify deviating from
the laws, guidelines and established procedures, and placing respondents in an exceptional
position. The undue classification was not germane to the purpose of the law. Instead, it
contradicted the law and well-established guidelines, rules and regulations meant to carry the
law into effect. While petitioner Abad cannot claim entitlement to the Order of National
Artists,61 he is entitled to be given an equal opportunity to vie for that honor. In view of the
foregoing, there was a violation of petitioner Abads right to equal protection, an interest that is
substantial enough to confer him standing in this case.

As regards the other concerned artists and academics as well as the CAP, their claim of deep
concern for the preservation of the countrys rich cultural and artistic heritage, while laudable,
falls short of the injury in fact requirement of standing. Their assertion constitutes a
generalized grievance shared in a substantially equal measure by all or a large class of
citizens.62 Nor can they take refuge in their status as taxpayers as the case does not involve
any illegal appropriation or taxation. A taxpayers suit is proper only when there is an exercise
of the spending or taxing power of the Congress.63

Nonetheless, as a reading of the petition shows that it has advanced an issue which deserves
the attention of this Court in view of its seriousness, novelty and weight as precedent, it
behooves the Court to relax the rules on standing and to resolve the issue presented before
it.64 Moreover, this issue is of paramount interest,65 which further justifies a liberal stance on
standing.

Propriety of the Remedies

The present action is a petition for prohibition, certiorari, injunction, restraining order and all
other legal, just and equitable reliefs.
It has been held that the remedies of prohibition and injunction are preventive and, as such,
cannot be availed of to restrain an act that is already fait accompli.66 Where the act sought to
be prohibited or enjoined has already been accomplished or consummated, prohibition or
injunction becomes moot.67

Nevertheless, even if the principal issue is already moot, this Court may still resolve its merits
for the future guidance of both bench and bar. Courts will decide a question otherwise moot
and academic if it is "capable of repetition, yet evading review."68

It is an opportune time for the Court to assert its role as republican schoolmaster,69 a teacher
in a vital national seminar.70 There are times when the controversy is of such character that, to
prevent its recurrence and to assure respect for constitutional limitations, this Court must pass
on the merits of a case.71 This is one such case. More than being a teaching moment, this is
not the first time that the Order of National Artists was conferred in the manner that is being
assailed in this case.72 If not addressed here and now, there is great probability that the
central question involved in this case will haunt us again in the future. Every President may
invoke absolute presidential prerogative and thrust upon us National Artists after his or her
own heart, in total disregard of the advise of the CCP and the NCCA and the voice of the
community of artists, resulting to repeated episodes of indignation and uproar from the artists
and the public.

Furthermore, if not corrected, such an act would give rise to mischief and dangerous
precedent whereby those in the corridors of power could avoid judicial intervention and review
by merely speedily and stealthily completing the commission of an illegality.73

In any event, the present petition is also for certiorari and there is no procedural bar for the
Court to pass upon the question of whether the proclamations of respondents
Guidote-Alvarez, Caparas, Maosa and Moreno as National Artists were attended by grave
abuse of presidential discretion.

Limits of the Presidents Discretion

The respective powers of the CCP Board of Trustees and of the NCCA Board of
Commissioners with respect to the conferment of the Order of National Artists are clear. They
jointly administer the said award and, upon their recommendation or advice, the President
confers the Order of National Artists.

To "recommend" and to "advise" are synonymous. To "recommend" is "to advise or

counsel."74 To "advise" is "to give an opinion or counsel, or recommend a plan or course of
action; also to give notice. To encourage, inform or acquaint."75 "Advise" imports that it is
discretionary or optional with the person addressed whether he will act on such advice or
not.76 This has been clearly explained in Cojuangco, Jr. v. Atty. Palma77:

The "power to recommend" includes the power to give "advice, exhortation or indorsement,
which is essentially persuasive in character, not binding upon the party to whom it is made."
(Emphasis supplied.)

Thus, in the matter of the conferment of the Order of National Artists, the President may or
may not adopt the recommendation or advice of the NCCA and the CCP Boards. In other
words, the advice of the NCCA and the CCP is subject to the Presidents discretion.
Nevertheless, the Presidents discretion on the matter is not totally unfettered, nor the role of
the NCCA and the CCP Boards meaningless.

Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reined
in to keep it from straying. In its classic formulation, "discretion is not unconfined and vagrant"
but "canalized within banks that keep it from overflowing."78

The Presidents power must be exercised in accordance with existing laws. Section 17, Article
VII of the Constitution prescribes faithful execution of the laws by the President:

Sec. 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied.)

The Presidents discretion in the conferment of the Order of National Artists should be
exercised in accordance with the duty to faithfully execute the relevant laws. The faithful
execution clause is best construed as an obligation imposed on the President, not a separate
grant of power.79 It simply underscores the rule of law and, corollarily, the cardinal principle
that the President is not above the laws but is obliged to obey and execute them.80 This is
precisely why the law provides that "administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or the Constitution."81

In this connection, the powers granted to the NCCA and the CCP Boards in connection with
the conferment of the Order of National Artists by executive issuances were institutionalized
by two laws, namely, Presidential Decree No. 208 dated June 7, 1973 and Republic Act No.
7356. In particular, Proclamation No. 1144 dated May 15, 1973 constituted the CCP Board as
the National Artists Awards Committee and tasked it to "administer the conferment of the
category of National Artist" upon deserving Filipino artists with the mandate to "draft the rules
to guide its deliberations in the choice of National Artists":

Proclamation No. 1001 dated April 27, 1972, creating the Award and Decoration of National
Artist, is hereby amended by creating a National Artists Awards Committee, hereinafter to
administer the conferment of the category of National Artist upon those deserving thereof.
The Committee, which shall be composed of members of the Board of Trustees of the
Cultural Center of the Philippines, shall organize itself immediately and shall draft the rules to
guide its deliberations in the choice of National Artists, to the end that those who have created
a body of work in the arts and in letters capable of withstanding the test of time will be so
recognized. (Emphases supplied.)

The authority of the CCP Board of Trustees as National Artists Awards Committee was
reiterated in Presidential Decree No. 208 dated June 7, 1973.

The function of the CCP Board of Trustees as National Artists Awards Committee has been
recognized under Republic Act No. 7356:

Sec. 18. The National Cultural Agencies. The [NCCA] shall coordinate with the national
cultural agencies including but not limited to the Cultural Center of the Philippines, the
Institute of Philippine Languages, the National Historical Institute, the National Library, the
National Museum, the Records Management and Archives Office. However, they shall
continue operating under their respective charters or as provided by law where provisions
therein are not inconsistent with the provisions of this Act. They shall serve as the national
repository and/or showcase, as the case may be, of the best of Philippine culture and arts. For
this purpose, these agencies shall submit periodic reports, including recommendations to the
[NCCA]. (Emphasis supplied.)

On the other hand, the NCCA has been given the following mandate in connection with the
conferment of cultural or arts awards:

Sec. 12. Mandate. The Commission is hereby mandated to formulate and implement
policies and plans in accordance with the principles stated in Title 1 of this Act.

(a) To encourage the continuing and balanced development of a pluralistic culture by the
people themselves, it shall:

xxxx

(4) extend recognition of artistic achievement through awards, grants and services to artists
and cultural groups which contribute significantly to the Filipinos cultural legacy;

xxxx

Sec. 13. Powers and Functions. To carry out its mandate, the Commission shall exercise
the following powers and functions:

xxxx

(j) advise the President on matters pertaining to culture and the arts, including the creation of
a special decoration or award, for persons who have significantly contributed to the
development and promotion of Philippine culture and arts;

(k) promulgate rules, regulations and undertake any and all measures as may be necessary
to implement this Act. (Emphases supplied.)

By virtue of their respective statutory mandates in connection with the conferment of the
National Artist Award, the NCCA and the CCP decided to work together and jointly administer
the National Artist Award. They reviewed the guidelines for the nomination, selection and
administration of the National Artist Award, created a National Artist Award Secretariat,
centralized all financial resources and management for the administration of the National
Artist Award, and added another layer to the selection process so that more members of the
arts and culture sector of the Philippines may be involved and participate in the selection of
National Artists.

We have held that an administrative regulation adopted pursuant to law has the force and
effect of law.82 Thus, the rules, guidelines and policies regarding the Order of National Artists
jointly issued by the CCP Board of Trustees and the NCCA pursuant to their respective
statutory mandates have the force and effect of law. Until set aside, they are binding upon
executive and administrative agencies,83 including the President himself/herself as chief
executor of laws. In this connection, Section 2.5(A) of the Implementing Rules and
Regulations84 of Executive Order No. 236, s. 2003 provides:

2.5: General Guidelines for Awards Committees

A. National Orders of Cultural and Scientific Merit

The existing modalities of the NCCA for selecting recipients for the Order of National Artists,
and the Gawad sa Manlilikha ng Bayan, and of the NAST for selecting recipients of the Order
of National Scientists, shall remain in force. (Emphases supplied.)

Section 2.4(A) of the same implementing rules further states:

2.4: Awards Committees

There shall be two types of awards committees: the Committee on Honors and the various
awards committees in the various units of the government service.

A. The Committee on Honors

The Committee on Honors serves as a National Awards Committee. It is composed of the

following:

The Executive Secretary, Chairman

The Secretary of Foreign Affairs, Vice-Chairman

Head, Presidential Management Staff, member

Presidential Assistant for Historical Affairs, member

Chief of Presidential Protocol, member

Chief of Protocol, DFA, member

All nominations from the various awards committees must be submitted to the Committee on
Honors via the Chancellery of Philippine Orders and State Decorations. The Chancellery shall
process nominations for the consideration of the Committee on Honors. The Committee on
Honors shall screen and recommend these nominations to the President.

The Committee on Honors shall, as a general rule, serve as a screening committee to ensure
that nominations received from the various awards committees meet two tests: that there has
not been an abuse of discretion in making the nomination, and that the nominee is in good
standing. Should a nomination meet these criteria, a recommendation to the President for
conferment shall be made.

The President of the Philippines takes the recommendations of the Committee on Honors in
the highest consideration when making the final decision on the conferment of awards.
(Emphasis supplied.)

Pursuant to the above provision of the implementing rules of Executive Order No. 236, s.
2003, the authority of the Committee on Honors is limited to determining whether the
nominations submitted by a particular awards committee, in this case, the joint NCCA and
CCP Boards, have been tainted by abuse of discretion, and whether the nominees are in
good standing. Should the nominations meet these two criteria, the Committee on Honors
shall make a recommendation to the President for conferment of the Order of National Artists.
In view of the various stages of deliberation in the selection process and as a consequence of
his/her duty to faithfully enforce the relevant laws, the discretion of the President in the matter
of the Order of National Artists is confined to the names submitted to him/her by the NCCA
and the CCP Boards. This means that the President could not have considered conferment of
the Order of National Artists on any person not considered and recommended by the NCCA
and the CCP Boards. That is the proper import of the provision of Executive Order No. 435, s.
2005, that the NCCA and the CCP "shall advise the President on the conferment of the Order
of National Artists." Applying this to the instant case, the former President could not have
properly considered respondents Guidote-Alvarez, Caparas, Maosa and Moreno, as their
names were not recommended by the NCCA and the CCP Boards. Otherwise, not only will
the stringent selection and meticulous screening process be rendered futile, the respective
mandates of the NCCA and the CCP Board of Trustees under relevant laws to administer the
conferment of Order of National Artists, draft the rules and regulations to guide its
deliberations, formulate and implement policies and plans, and undertake any and all
necessary measures in that regard will also become meaningless.

Furthermore, with respect to respondent Guidote-Alvarez who was the Executive Director of
the NCCA at that time, the Guidelines expressly provides:

6.5 NCCA and CCP Board members and consultants and NCCA and CCP officers and staff
are automatically disqualified from being nominated.85

Respondent Guidote-Alvarez could not have even been nominated, hence, she was not
qualified to be considered and conferred the Order of National Artists at that time. The
Presidents discretion on the matter does not extend to removing a legal impediment or
overriding a legal restriction.

From the foregoing, the advice or recommendation of the NCCA and the CCP Boards as to
the conferment of the Order of National Artists on Conde, Dr. Santos, Francisco and Alcuaz
was not binding on the former President but only discretionary or optional for her whether or
not to act on such advice or recommendation. Also, by virtue of the power of control, the
President had the authority to alter or modify or nullify or set aside such recommendation or
advice. It was well within the Presidents power and discretion to proclaim all, or some or even
none of the recommendees of the CCP and the NCCA Boards, without having to justify his or
her action. Thus, the exclusion of Santos did not constitute grave abuse of discretion on the
part of the former President.

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

Maosa and Moreno was an entirely different matter.

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

There was a violation of the equal protection clause of the Constitution87 when the former
President gave preferential treatment to respondents Guidote-Alvarez, Caparas, Maosa and
Moreno. The former Presidents constitutional duty to faithfully execute the laws and observe
1wphi1

the rules, guidelines and policies of the NCCA and the CCP as to the selection of the
nominees for conferment of the Order of National Artists proscribed her from having a free
and uninhibited hand in the conferment of the said award. The manifest disregard of the rules,
guidelines and processes of the NCCA and the CCP was an arbitrary act that unduly favored
respondents Guidote-Alvarez, Caparas, Maosa and Moreno. The conferment of the Order of
National Artists on said respondents was therefore made with grave abuse of discretion and
should be set aside.

While the Court invalidates today the proclamation of respondents Guidote-Alvarez, Caparas,
Maosa and Moreno as National Artists, such action should not be taken as a pronouncement
on whether they are worthy to be conferred that honor. Only the President, upon the advise of
the NCCA and the CCP Boards, may determine that. The Court simply declares that, as the
former President committed grave abuse of discretion in issuing Proclamation Nos. 1826 to
1829 dated July 6, 2009, the said proclamations are invalid. However, nothing in this Decision
should be read as a disqualification on the part of respondents Guidote-Alvarez, Caparas,
Maosa and Moreno to be considered for the honor of National Artist in the future, subject to
compliance with the laws, rules and regulations governing said award.

WHEREFORE, the petition is hereby GRANTED in PART. Proclamation Nos. 1826 to 1829
dated July 6, 2009 proclaiming respondents Cecile Guidote-Alvarez, Carlo Magno Jose
Caparas, Francisco Maosa, and Jose Moreno, respectively, as National Artists are declared
INVALID and

SET ASIDE for having been issued with grave abuse of discretion.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

(On leave)
DIOSDADO M. PERALTA
ARTURO D. BRION*
Associate Justice
Associate Justice

(no part)
LUCAS P. BERSAMIN
MARIANO C. DEL CASTILLO**
Associate Justice
Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

 Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* On leave.

**
No part.

1
Also referred to as Carlos Caparas" and "Carlo Caparas" in some parts or the records.

2
Arts and Creative Industries: A Historical Overview and an Australian Conversation, p. 51,
Australia Council for the Arts.

3
Republic Act No. 7356, Section 3 or the Law Creating the National Commission for Culture
and the Arts.

4
Entitled Declaring Fernando Amorsolo a National Artist.

5
Entitled Declaring Francisca Reyes Aquino, Carlos V. Francisco, Amado V. Hernandez,
Antonio J. Molina, Juan F. Nakpil, Guillermo E. Tolentino and Jose Garcia Villa National
Artists; and Amending Proclamation No. 1001 dated April 27, 1972, by Creating a National
Artists Awards Committee, Hereinafter to Administer the Conferment of the Award/Decoration
of National Artist.

6
Entitled Granting Certain Privileges and Honors to National Artists and Creating a Special
Fund for the Purpose.

7
Republic Act No. 7356, Section 12(4).

8
Id., Section 13(j).

9
Rollo, p. 82. This effort on coordination is consistent with the powers of the NCCA to "set up
a system of networking and coordination with and among all existing government cultural
agencies for the effective implementation of programs and activities" under Section 13(c) of
Republic Act No. 7356. Section 18 in connection with Section 23(b) of the same law further
provides that the NCCA "shall coordinate with the national cultural agencies including but not
limited to the Cultural Center of the Philippines" with the NCCA as "over all policy-making and
coordinating body."

10
Id. at 138-144.

11
EXECUTIVE ORDER NO. 236, S. 2003, Sections 3 and 5.

12
Id., Section 5.

13
Id., Section 9.

14
Id.

15
Approved under MEMORANDUM ORDER NO. 128 dated December 23, 2003.

16
Rollo, p. 17.

17
Id. at 18.

18
Id. at 39-40. These nominees were as follows:

Art Field Name Number

1. Belmonte, Paz Cielo
2. Elejar, Eddie
3. Fabella, Antonio
4. Iigo, Corazon
Dance 8
5. Locsin, Carmen
6. Pil, Teresita Veloso
7. Radaic, Felicitas
8. Reyes, Alice
1. Asensio, Fides Cuyugan
2. Buenaventura, Alfredo
3. Canseco, George+
4. Cayabyab, Ryan
5. Cenizal, Josefino
6. Cruz, Emiliano
7. De Guzman, Constancio+
8. Hontiveros, S.J., Fr. Eduardo+
Music 16
9. Lozada, Carmencita+
10. Kabayao, Gilopez
11. Mijares, Emil+
12. Pajaro, Eliseo+
13. Romero, Redentor+
14. Santos, Ramon
15. Sunico, Raul
16. Zamora, Ricardo "Dick"
1. Amador, Zeneida
Theater 6
2. Bonifacio, Amelia Lapea
 3. Carpio, Rustica
4. Mabesa, Antonio
5. Rogers, Naty Crame
6. Santos, Isabel
1. Alcala, Larry+
2. Alcuaz, Federico Aguilar
3. Bitanga, Rosario
4. Caparas, Carlo
5. Carlos, Romeo
6. Carmelo, Alfredo+
7. Castrillo, Eduardo
8. Coching, Francisco+
9. Fajardo, Brenda
10. Isidro, Raul
11. Lorenzo, Diosdado+
Visual Arts 22
12. Marcelo, Nonoy+
13. Miranda, Jr., Nemesio
14. Olmedo, Luis "Onib"
15. Orlina, Ramon
16. Pacheco, Rafael
17. Rodriguez, Sr., Manuel
18. Santos, Mauro Malang
19. Santos, Paz Singson Abad
20. Tabuena, Romeo
21. Velasquez, Tony+
22. Vitug, Honesto
1. Abad, Gemino
2. Bautista, Cirilo
3. Bragado, Jose
4. Cristobal, Sr., Adrian+
5. Chua, Kee (Sy Yinchow)
6. Dimalanta, Ophelia Alcantara
7. Fernandez, Doreen+
Literature 14
8. Fernando, Gilda Cordero
9. Francisco, Lazaro+
10. Hidalgo, Juan, S.P.
11. Jalandoni, Magdalena+
12. Matute, Genoveva Edroza
13. Uranza, Azucena Grajo
14. Villanueva, Renato "Rene"+
1. Aunor, Nora (Film)
2. Castillo, Celso Ad (Film)
3. Conde, Manuel+ (Film)
4. De Leon, Mike (Film)
Film and Broadcast 5. Dolphy (Film)
10
Arts 6. Lazaro, Cecilia "Cheche" (Broadcast Arts)
7. Magpayo, Fidela "Dely" (Broadcast Arts)
8. Muoz, Tita+ (Film)
9. Trinidad, Francisco+ (Broadcast Arts)
10. Vela, Helen+ (Film) (Broadcast Arts)
 1. Alonzo, Aureo (Fashion Design)
2. Arguelles, Carlos+ (Fashion Design)
3. Calma, Lor (Architecture)
4. Concio, Cesar (Architecture)
Architecture, 5. Farrales, Ben (Fashion Design)
Design and Allied 6. Formoso, Gabriel (Architecture) 11
Arts 7. Higgins, Salvacion Lim+ (Fashion Design)
8. Maosa, Francisco "Bobby" (Architecture)
9. Mendoza, Felipe+ (Architecture)
10. Moreno, Jose "Pitoy" (Fashion Design)
11. Salazar, Joe+ (Architecture)

19
Id. at 41. Those included in the preliminary shortlist were as follows:

Art Field Name (In Alphabetical Order)

1. Belmonte, Paz Cielo
Dance
2. Iigo, Corazon
1. Asensio, Fides Cuyugan
2. Buenaventura, Alfredo
Music
3. Santos, Ramon
4. Sunico, Raul
1. Bonifacio, Amelia Lapea
Theater 2. Mabesa, Antonio
3. Rogers, Naty Crame
1. Alcala, Larry+
2. Alcuaz, Federico Aguilar
3. Castrillo, Eduardo
Visual Arts
4. Coching, Francisco+
5. Lorenzo, Diosdado+
6. Rodriguez, Sr., Manuel
1. Abad, Gemino
2. Bautista, Cirilo
3. Fernando, Gilda Cordero
Literature
4. Francisco, Lazaro+
5. Jalandoni, Magdalena+
6. Villanueva, Renato+
1. Castillo, Celso Ad (Film)
2. Conde, Manuel+ (Film)
Film and Broadcast Arts 3. Dolphy (Film)
4. Lazaro, Cecilia "Cheche" (Broadcast Arts)
5. Trinidad, Francisco+ (Broadcast Arts)
1. Arguelles, Carlos+ (Architecture)
2. Formoso, Gabriel (Architecture)
Architecture, Design and 3. Higgins, Salvacion Lim+ (Fashion Design)
Allied Arts 4. Mendoza, Felipe+ (Architecture)
5. Moreno, Jose "Pitoy" (Fashion Design)
6. Salazar, Joe+ (Fashion Design)
20
Id. at 42. Those included in the second shortlist were as follows:

Art Field Name

Belmonte, Paz Cielo
Dance
Iigo, Corazon
Music Santos, Ramon
Bonifacio, Amelia Lapea
Theater
Mabesa, Antonio
Alcuaz, Federico Aguilar
Visual Arts
Castrillo, Eduardo
Francisco, Lazaro+
Literature
Jalandoni, Magdalena+
Conde, Manuel+ (Film)
Film and Broadcast Arts
Trinidad, Francisco+ (Broadcast Arts)
Architecture, Design and Arguelles, Carlos+ (Architecture)
Allied Arts Salazar, Joe+ (Fashion Design)

21
Id. at 22.

22
Id. at 43.

23
Id. at 22.

24
Id. at 44.

25
Id. at 160-161.

26
Id.

27
Id. at 34-35.

28
Id. at 49-50.

29
Id. at 51-55.

30
Other procedural issues (such as violation of the hierarchy of courts and lack of verification
by some of the petitioners) have been raised by the public respondents and respondent
Caparas. In view of the purely legal question, substantial merit and paramount public interest
involved in this case, however, the said procedural infirmities have been brushed aside and
strict technicalities relaxed. (Relevant to the relaxation of the rule on the hierachy of courts,
see Archbishop Capalla v. Commission on Elections, G.R. No. 201112, June 13, 2012, 673
SCRA 1, 47-48; United Claimants Association of NEA (UNICAN) v. National Electrification
Administration, G.R. No. 187107, January 31, 2012, 664 SCRA 483, 489-490; Chua v. Ang,
G.R. No. 156164, September 4, 2009, 598 SCRA 229, 239; Garcia v. Miro, G.R. No. 167409,
March 20, 2009, 582 SCRA 127, 133. In connection with the liberality on the verification
requirement, see Altres v. Empleo, G.R. No. 180986, December 10, 2008, 573 SCRA 583; De
Guzman, Jr. v. Ochoa, G.R. No. 169292, April 13, 2011, 648 SCRA 677, 682-683;
Torres-Gomez v. Codilla, Jr., G.R. No. 195191, March 20, 2012, 668 SCRA 600, 611; and
Pagadora v. Ilao, G.R. No. 165769, December 12, 2011, 662 SCRA 14, 25.)

31
Rollo, p. 682.

32
Id.

33
Id. at 682-683.

34
Id. at 671-677.

35
Id. at 673.

36
Id. at 678-680.

37
Id. at 508-513.

38
Id.

39
Id. at 514-519.

40
Id. at 409.

41
Id. at 366-379, Entry of Appearance with Show Cause and Comment dated March 12, 2010;
rollo, pp. 578-585, Memorandum dated September 20, 2011.

42
Id. at 489-491 and 637B-637C, Resolutions dated July 12, 2011 and January 17, 2012.

43
Id.

44
Id. at 499-527.

45
Id. at 535-576.

46
Id. at 578-585.

47
Id. at 586-590.

48
Id. at 637B-637C.

49
Id. at 659-686.

50
Id. at 146-198 and 304-312, Comment and Supplemental Comment of public respondents
filed by the OSG.

51
Id. at 697-746.

52
Id.
53
Id.

54
Id.

55
Id.

56
Chemerinsky, Erwin, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES (3rd Edition),
p. 60.

57
Francisco, Jr. v. House of Representatives, 460 Phil. 830, 893 (2003).

58
Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010, 632 SCRA 146, 167, citing Anak Mindanao Party-List Group v.
Executive Secretary Ermita, 558 Phil. 338, 351 (2007).

59
SECTION 2. Definition of Terms. - The following terms, as used in this Executive Order,
shall be defined as follows:

a. Order. An Order is an award that grants membership in an exclusive association of

honored individuals, and which by tradition carries with it distinctive insignia to be worn by
recipients. (Emphasis supplied.)

60
The rational basis scrutiny is one of three tests used by the Court to test compliance with
the equal protection clause. It is the minimal level of scrutiny which requires that the
challenged classification is rationally related to serving a legitimate State interest. It is used
when the government action is a type of discrimination that does not warrant the intermediate
and strict levels of scrutiny. The intermediate or middle-tier test requires the government to
show that (1) the challenged classification serves an important State interest, and (2) the
classification is at least substantially related to serving that interest. It is applied to suspect
classifications like gender or illegitimacy. The most demanding is the strict scrutiny test which
requires the government to show that (1) the challenged classification serves a compelling
State interest, and (2) the classification is necessary to serve that interest. It is used in
classifications based on race, national origin, religion alienage, denial of the right to vote,
access to courts and other rights recognized as fundamental. (Bernas, Joaquin S.J., THE
1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY [2009
edition], pp. 139-140).

61
This is not to say that petitioner Abad is unworthy of the honor. It only means that the Court
is in no position to make that determination.

62
Warth v. Seldin, 422 U.S. 490, 499 (1975); see also David v. Macapagal-Arroyo, 522 Phil.
705, 762 (2006).

63
Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 58
at 174-175; Automotive Industry Workers Alliance v. Romulo, 489 Phil. 710, 719 (2005);
Gonzales v. Narvasa, 392 Phil. 518, 525 (2000).

64
Francisco, Jr. v. House of Representatives, supra note 57 at 897-898.

65
A congressional inquiry was conducted in connection with the 2009 National Artists
controversy. The general public, not only the arts and culture community, also weighed in on
the issue especially in connection with the conferment of the Order of National Artists on the
late Fernando Poe, Jr. and the clamor for the late Rodolfo "Dolphy" V. Quizon to be conferred
the said Order.

Guerrero v. Domingo, G.R. No. 156142, March 23, 2011, 646 SCRA 175, 179. See also
66

Montes v. Court of Appeals, 523 Phil. 98, 110 (2006).

67
See Caneland Sugar Corporation v. Alon, 559 Phil. 462, 466-467 (2007); Bernardez v.
Commission on Elections, G.R. No. 190382, March 9, 2010, 614 SCRA 810, 820.

68
Caneland Sugar Corporation v. Alon, id.

69
Lerner, Ralph, The Supreme Court as Republican Schoolmaster, 1967 Sup. Ct. Rev. 127.

70
Rostow, Eugene, The Democratic Character of Judicial Review, 66 Harv. L. Rev. 193
(1952).

71
Rufino v. Endriga, 528 Phil. 473, 489 (2006).

72
Both petitioners and respondents admit in their pleadings that the Order of National Artists
was confered by former Presidents Fidel V. Ramos and Joseph Ejercito Estrada on artists
who had not been recommended by the NCCA and CCP Boards. (See p. 14 of Memorandum
of petitioners, rollo, p. 672 and pp. 11-13 of Comment of public respondents, rollo, pp.
156-158.)

73
See Tan v. Commission on Elections, 226 Phil. 624, 638 (1986).

74
BLACKS LAW DICTIONARY (6th edition), p. 1272, citing Kirby v. Nolte, 351 Mo. 525, 173
S.W.2d 391.

75
Id. at 54.

76
Id.

77
501 Phil. 1, 10 (2005).

78
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), Cardozo, J., dissenting.

79
Tribe, Lawrence, AMERICAN CONSTITUTIONAL LAW, Vol. I (2000 edition), p. 713.

80
Justice Dante O. Tinga made a similar point in his dissenting opinion in Rufino v. Endriga,
supra note 71 at 530.

81
CIVIL CODE, Article 17.

82
Spouses Almeda v. Court of Appeals, 326 Phil. 309, 321 (1996).

83
Agpalo, Ruben, ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION
LAW (2005 edition), p. 72.
84
Approved under MEMORANDUM ORDER NO. 128 dated December 23, 2003.

85
Rollo, p. 142.

86
Doromal v. Biron, G.R. No. 181809, February 17, 2010, 613 SCRA 160, 172; St. Mary of the
Woods School, Inc. v. Office of the Registry of Deeds of Makati City, G.R. No. 174290,
January 20, 2009, 576 SCRA 713, 727; Information Technology Foundation of the Philippines
v. Commission on Elections, 464 Phil. 173 (2004).

87
Sec. 1, Art. III of the Constitution provides that "No person shall be deprived of life, liberty or
property without due process of law, nor shall any person be deprived the equal protection of
the laws."
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-33964 December 11, 1971

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG

RODOLFO DEL ROSARIO, and BAYANI ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine
Constabulary, respondent.

G.R. No. L-33965 December 11, 1971

ROGELIO V. ARIENDA, petitioner,

vs.

SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL.

CONSTABULARY, respondents.

G.R. No. L-33973 December 11, 1971

LUZVIMINDA DAVID, petitioner,

vs.

GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, COL. N. C.

CAMELLO, in his capacity as Chief of Staff, Philippine Constabulary and HON. JUAN
PONCE ENRILE in his capacity as Secretary, Department of National
defense, respondents.

G.R. No. L-33982 December 11, 1971

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E.

PRUDENTE FELICIDAD G. PRUDENTE, petitioners,

vs.

GENERAL MANUEL YAN, GEN. EDU GARCIA, respondents.

G.R. No. L-34004 December 11, 1971

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF

GERARDO TOMAS, ALSO KNOWN AS "GERRY TOMAS" AND FOR RETURN OF
DOCUMENTS ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity as Chairman,
Committee on Legal Assistance, Philippine Bar Association,petitioner,

vs.

BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE

CONSTABULARY, respondent.

G.R. No. L-34013 December 11, 1971

REYNALDO RIMANDO, petitioner,

vs.

BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine Constabulary, respondent.

G.R. No. L-34039 December 11, 1971

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF SGT.

FILOMENO M. DE CASTRO AND HIS WIFE, MRS. BARCELISA C. DE CASTRO. CARLOS
C. RABAGO, in his capacity as President of the Conference Delegates Association of
the Philippines (CONDA),petitioner,

vs.

BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.

G.R. No. L-34265 December 11, 1971

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN ORETA, JR.
ANTOLIN ORETA, JR.,petitioner,

vs.

GEN. EDUARDO GARCIA and COL. PROSPERO OLIVAS, respondents.

G.R. No. L-34339 December 11, 1971

GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, petitioner,

vs.

GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, et

al., respondents.

Ignacio P. Lacsina for petitioners Teodosio Lansang, et al.

Ramon A. Gonzales for petitioner Rogelio V. Arienda.

E. Voltaire Garcia II for petitioner Luzvimindo David.

Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E. Taada, Fortunato de Leon, R.
G. Suntay and Juan T. David for petitioner Felicidad G. Prudente.

Ruben L. Roxas for petitioner Reynaldo Rimando.

Nuez, Acob, Del Rosario and Ramos for petitioner Carlos Rabago, etc.

E. Voltaire Garcia II and M. P. Vivo for petitioner Gary Olivar, etc., et al.

Jose W. Diokno and Juanito R. Remulla for petitioner Antolin Oreta, Jr.

Domingo E. de Lara for and in his own behalf.

Office of the Solicitor General Felix Q. Antonio and Assistant Solicitor General Bernardo P.
Pardo for respondents.

CONCEPCION, C.J.:

In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines
was holding a public meeting at Plaza Miranda, Manila, for the presentation of its candidates
in the general elections scheduled for November 8, 1971, two (2) hand grenades were thrown,
one after the other, at the platform where said candidates and other persons were. As a
consequence, eight (8) persons were killed and many more injured, including practically all of
the aforementioned candidates, some of whom sustained extensive, as well as serious,
injuries which could have been fatal had it not been for the timely medical assistance given to
them.

On August 23, soon after noontime, the President of the Philippines announced the issuance
of Proclamation No. 889, dated August 21, 1971, reading as follows:

WHEREAS, on the basis of carefully evaluated information, it is definitely established that

lawless elements in the country, which are moved by common or similar ideological conviction,
design and goal and enjoying the active moral and material support of a foreign power and
being guided and directed by a well trained, determined and ruthless group of men and taking
advantage of our constitutional liberties to promote and attain their ends, have entered into a
conspiracy and have in fact joined and banded their forces together for the avowed purpose
of actually staging, undertaking and waging an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly constituted government, and
supplant our existing political social, economic and legal order with an entirely new one whose
form of government, whose system of laws, whose conception of God and religion, whose
notion of individual rights and family relations, and whose political, social and economic
precepts are based on the Marxist-Leninist-Maoist teachings and beliefs;

WHEREAS, these lawless elements, acting in concert through front organizations that are
seemingly innocent and harmless, have continuously and systematically strengthened and
broadened their memberships through sustained and careful recruiting and enlistment of new
adherents from among our peasantry, laborers, professionals, intellectuals, students, and
mass media personnel, and through such sustained and careful recruitment and enlistment
have succeeded in infiltrating almost every segment of our society in their ceaseless
determination to erode and weaken the political, social, economic and moral foundations of
our existing government and to influence many peasant, labor, professional, intellectual,
student and mass media organizations to commit acts of violence and depredations against
our duly constituted authorities, against the members of our law enforcement agencies, and
worst of all, against the peaceful members of our society;

WHEREAS, these lawless elements have created a state of lawlessness and disorder
affecting public safety and the security of the State, the latest manifestation of which has been
the dastardly attack on the Liberal Party rally in Manila on August 21, 1971, which has
resulted in the death and serious injury of scores of persons;

WHEREAS, public safety requires that immediate and effective action be taken in order to
maintain peace and order, secure the safety of the people and preserve the authority of the
State;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of

the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do
hereby suspend the privilege of the writ of habeas corpus, for the persons presently detained,
as well as others who may be hereafter similarly detained for the crimes of insurrection or
rebellion, and all other crimes and offenses committed by them in furtherance or on the
occasion thereof, or incident thereto, or in connection therewith.

Presently, petitions for writ of habeas corpus were filed, in the above-entitled cases, by the
following persons, who, having been arrested without a warrant therefor and then detained,
upon the authority of said proclamation, assail its validity, as well as that of their detention,
namely:

1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the petitioners in
Case No. L-33964 filed on August 24, 1971 who, on August 22, 1971, between 8 a.m.
and 6 p.m., were "invited" by agents of the Philippine Constabulary which is under the
command of respondent Brig. Gen. Eduardo M. Garcia to go and did go to the
headquarters of the Philippine Constabulary, at Camp Crame, Quezon City, for interrogation,
and thereafter, detained;

2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 filed, also, on August 24,
1971 who was picked up in his residence, at No. 55 Road, 3, Urduja Village, Quezon City,
by members of the Metrocom and then detained;

3. Soon after the filing of the petition in Case No. L-33965 or on August 28, 1971 the
same was amended to include VICENTE ILAO and JUAN CARANDANG, as petitioners
therein, although, apart from stating that these additional petitioners are temporarily residing
with the original petitioner, Rogelio V. Arienda, the amended petition alleged nothing
whatsoever as regards the circumstances under which said Vicente Ilao and Juan Carandang
are said to be illegally deprived of their liberty;

4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 filed on August 25, 1971 who
was similarly arrested in his residence, at No. 131-B Kamias Road, Quezon City, and
detained by the Constabulary;

5. Felicidad G. Prudente, who filed the petition in Case No. L-33982 on August 27, 1971
upon the ground that her father, Dr. NEMESIO E. PRUDENTE, had, on August 22, 1971, at
about 8 p.m., been apprehended by Constabulary agents in his house, at St. Ignatius Village,
Quezon City, and then detained at the Camp Crame stockade, Quezon City;

6. ANGELO DE LOS REYES, who was allowed on August 30, 1971 to intervene as one
of the petitioners in Cases Nos. L-33964, L-33965 and L-33973, he having been arrested by
members of the Constabulary on August 22, 1971, between 6:30 and 7:30 p.m., in his
residence, at 86 Don Manuel Street, Sta. Mesa Heights, Quezon City, and brought to Camp
Crame, Quezon City, where he is detained and restrained of liberty;

7. VICTOR FELIPE, who was similarly allowed to intervene as one of the petitioners in said
three (3) cases, upon the ground that, on August 23, 1971, at about 8 a.m., he was, likewise,
apprehended at Sta. Rosa, Laguna, by members of the Philippine Constabulary and brought,
first to the Constabulary headquarters at Canlubang, Laguna, and, then, to Camp Crame,
Quezon City, where he is detained and restrained of liberty;

8. TERESITO SISON, who was, also, allowed to intervene as one of the petitioners in the
same three (3) cases, he having been arrested in his residence, at 318 Lakandula St.,
Angeles City, on August 22, 1971, between 6 and 7 p.m., and taken to the PC offices at Sto.
Domingo, Angeles City, then to Camp Olivas, San Fernando, Pampanga, and eventually to
Camp Crame, Quezon City, where he is restrained and deprived of liberty;

9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college students of St.
Louis University, Baguio City, on whose behalf, Domingo E. de Lara in his capacity as
Chairman, Committee on Legal Assistance, Philippine Bar Association filed on September
3, 1971, the petition in Case No. L-34004, upon the ground that said Gerardo Tomas had, on
August 23, 1971, at about 6 a.m., been arrested by Constabulary agents, while on his way to
school in the City of Baguio, then brought to the Constabulary premises therein at Camp
Holmes, and, thereafter, taken, on August 24, 1971, to Camp Olivas, Pampanga, and thence,
on August 25, 1971, to the Constabulary headquarters at Camp Crame, Quezon City, where
he is detained;

10. REYNALDO RIMANDO, petitioner in Case No. L-34013 filed on September 7, 1971
a 19-year old student of the U.P. College in Baguio city who, while allegedly on his way
home, at Lukban Road, Baguio, on August 23, 1971, at about 1 a.m., was joined by three (3)
men who brought him to the Burnham Park, thence, to Camp Olivas at San Fernando,
Pampanga, and, thereafter, to Camp Crame, Quezon City, where he is detained;

11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C. DE CASTRO, on
whose behalf Carlos C. Rabago as President of the Conference Delegates Association of
the Philippines (CONDA) filed the petition in Case No. L-34039 on September 14, 1971
against Gen. Eduardo M. Garcia, alleging that, on August 27, 1971, at about 3 p.m., Mrs.
De Castro was arrested, while at Liamzon Subdivision, Rosario, Pasig, Rizal, by agents of the
Constabulary, and taken to the PC headquarters at Camp Crame, where, later, that same
afternoon, her husband was brought, also, by PC agents and both are detained;

12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265 on October 26, 1971
against said Gen. Garcia, as Chief of the Constabulary, and Col. Prospero Olivas, Chief of
the Central Intelligence Service (CIS), Philippine Constabulary, alleging that, upon invitation
from said CIS, he went, on October 20, 1971, to Camp Aguinaldo, Quezon City, to see Gen.
Manuel Yan, Chief of Staff of the Armed Forces of the Philippines, who referred petitioner to
Col. Laroya of the CIS; that the latter, in turn, referred him to CIS Investigator Atty. Berlin
Castillo and another CIS against, whose name is unknown to the petitioner; and that, after
being interrogated by the two (2), petitioner was detained illegally; and

13. GARY OLIVAR, petitioner in Case No. L-34339 filed on November 10, 1971 who
was apprehended, by agents of the Constabulary, in the evening of November 8, 1941, in
Quezon City, and then detained at Camp Crame, in the same City.

Upon the filing of the aforementioned cases, the respondents were forthwith required to
answer the petitions therein, which they did. The return and answer in L-33964 which
was, mutatis mutandis, reproduced substantially or by reference in the other cases, except
L-34265 alleges, inter alia, that the petitioners had been apprehended and detained "on
reasonable belief" that they had "participated in the crime of insurrection or rebellion;" that
"their continued detention is justified due to the suspension of the privilege of the writ
of habeas corpus pursuant to Proclamation No. 889 of the President of the Philippines;" that
there is "a state of insurrection or rebellion" in this country, and that "public safety and the
security of the State required the suspension of the privilege of the writ of habeas corpus," as
"declared by the President of the Philippines in Proclamation No. 889; that in making said
declaration, the "President of the Philippines acted on relevant facts gathered thru the
coordinated efforts of the various intelligence agents of our government but (of) which the
Chief Executive could not at the moment give a full account and disclosure without risking
revelation of highly classified state secrets vital to its safely and security"; that the
determination thus made by the President is "final and conclusive upon the court and upon all
other persons" and "partake(s) of the nature of political question(s) which cannot be the
subject of judicial inquiry," pursuant to Barcelon v. Baker, 5 Phil. 87, and Montenegro v.
Castaeda, 91 Phil. 882; that petitioners "are under detention pending investigation and
evaluation of culpabilities on the reasonable belief" that they "have committed, and are still
committing, individually or in conspiracy with others, engaged in armed struggle, insurgency
and other subversive activities for the overthrow of the Government; that petitioners cannot
raise, in these proceedings for habeas corpus, "the question of their guilt or innocence"; that
the "Chief of Constabulary had petitioners taken into custody on the basis of the existence of
evidence sufficient to afford a reasonable ground to believe that petitioners come within the
coverage of persons to whom the privilege of the writ of habeas corpus has been suspended";
that the "continuing detention of the petitioners as an urgent bona fide precautionary and
preventive measure demanded by the necessities of public safety, public welfare and public
interest"; that the President of the Philippines has "undertaken concrete and abundant steps
to insure that the constitutional rights and privileges of the petitioners as well as of the other
persons in current confinement pursuant to Proclamation 889 remain unimpaired and
unhampered"; and that "opportunities or occasions for abuses by peace officers in the
implementation of the proclamation have been greatly minimized, if not completely curtailed,
by various safeguards contained in directives issued by proper authority."

These safeguards are set forth in:

1. A letter of the President to the Secretary of National Defense, dated August 21, 1971,
directing, inter alia, in connection with the arrest or detention of suspects pursuant to
Proclamation No. 889, that, except when caught inflagrante delicto, no arrest shall be made
without warrant authorized in writing by the Secretary of National Defense; that such authority
shall not be granted unless, "on the basis of records and other evidences," it appears
satisfactorily, in accordance with Rule 113, section 6(b), of the Rules of Court, that the person
to be arrested is probably guilty of the acts mentioned in the proclamation; that, if such person
will be charged with a crime subject to an afflictive penalty under the Anti-Subversion Act, the
authorization for his arrest shall not be issued unless supported by signed intelligence reports
citing at least one reliable witness to the same overt act; that no unnecessary or unreasonable
force shall be used in effecting arrests; and that arrested persons shall not be subject to
greater restraint than is necessary for their detention;

2. Communications of the Chief of the Constabulary, dated August 23, 27, and 30, 1971, to all
units of his command, stating that the privilege of the writ is suspended for no other persons
than those specified in the proclamation; that the same does not involve material law; that
precautionary measures should be taken to forestall violence that may be precipitated by
improper behavior of military personnel; that authority to cause arrest under the proclamation
will be exercised only by the Metrocom, CMA, CIS, and "officers occupying position in the
provinces down to provincial commanders"; that there shall be no indiscriminate or mass
arrests; that arrested persons shall not be harmed and shall be accorded fair and humane
treatment; and that members of the detainee's immediate family shall be allowed to visit him
twice a week;

3. A memorandum of the Department of National Defense, dated September 2, 1971,

directing the Chief of the Constabulary to establish appropriate Complaints and Action
Bodies/Groups to prevent and/or check any abuses in connection with the suspension of the
privilege of the writ; and

4. Executive Order No. 333, dated August 26, 1971, creating a Presidential Administrative
Assistance Committee to hear complaints regarding abuses committed in connection with the
implementation of Proclamation No. 889.

Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and Juan
Carandang had been released from custody on August 31, 1971, "after it had been found that
the evidence against them was insufficient."

In L-34265, the "Answer and Return" filed by respondents therein traversed some allegations
of fact and conclusions of law made in the petition therein and averred that Antolin Oreta, Jr.,
the petitioner therein, had been and is detained "on the basis of a reasonable ground to
believe that he has committed overt acts in furtherance of rebellion or insurrection against the
government" and, accordingly, "comes within the class of persons as to whom the privilege of
the writ of habeas corpus has been suspended by Proclamation No. 889, as amended," the
validity of which is not contested by him.

On August 30, 1971, the President issued Proclamation No. 889-A, amending Proclamation
No. 889, so as to read as follows:

WHEREAS, on the basis of carefully evaluated information, it is definitely established that

lawless elements in the country, which are moved by common or similar ideological conviction,
design and goal and enjoying the active moral and material support of a foreign power and
being guided and directed by a well-trained, determined and ruthless group of men and taking
advantage of our constitutional liberties to promote and attain their ends, have entered into a
conspiracy and have in fact joined and banded their forces together for the avowed purpose
of [actually] staging, undertaking, [and] wagging and are actually engaged in an armed
insurrection and rebellion in order to forcibly seize political power in this country, overthrow
the duly constituted government, and supplant our existing political, social, economic and
legal order with an entirely new one whose form of government, whose system of laws, whose
conception of God and religion, whose notion of individual rights and family relations, and
whose political, social and economic precepts are based on the Marxist-Leninist-Maoist
teaching and beliefs;
WHEREAS, these lawless elements, acting in concert through front organizations that are
seemingly innocent and harmless, have continuously and systematically strengthened and
broadened their memberships through sustained and careful recruiting and enlistment of new
adherents from among our peasantly, laborers, professionals, intellectuals, students, and
mass media personnel, and through such sustained and careful recruitment and enlistment
have succeeded in infiltrating almost every segment of our society in their ceaseless
determination to erode and weaken the political, social, economic and moral foundations of
our existing government and influence many peasant, labor, professional, intellectual, student
and mass media organizations to commit acts of violence and depredations against our duly
constituted authorities, against the members of our law enforcement agencies, and worst of
all, against the peaceful members of our society;

WHEREAS, these lawless elements, by their acts of rebellion and insurrection, have created
a state of lawlessness and disorder affecting public safety and security of the State, the latest
manifestation of which has been the dastardly attack on the Liberal Party rally in Manila on
August 21, 1971, which has resulted in the death and serious injury of scores of persons;

WHEREAS, public safety requires that immediate and effective action be taken in order to
maintain peace and order, secure the safety of the people and preserve the authority of the
State;

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of

the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do
hereby suspend the privilege of the writ of habeas corpus for the persons presently detained,
as well as all others who may be hereafter similarly detained for the crimes of insurrection or
rebellion [,] and [all] other [crimes and offenses] overt acts committed by them in furtherance
[or on the occasion] thereof[,]. [or incident thereto, or in connection therewith.] 1

On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly
heard and then the parties therein were allowed to file memoranda, which were submitted
from September 3 to September 9, 1971.

Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further amended by
Proclamation No. 889-B, lifting the suspension of the privilege of the writ of habeas corpus in
the following provinces, sub-provinces and cities of the Philippine, namely:

A. PROVINCES:

1. Batanes 15. Negros Occ.

2. Ilocos Norte 16. Negros Or.
3. Ilocos Sur 17. Cebu
4. Abra 18. Bohol
5. Abra 19. Capiz
6. Pangasinan 20. Aklan
7. Batangas 21. Antique
8. Catanduanes 22. Iloilo
9. Masbate 23. Leyte
10. Romblon 24. Leyte del Sur
11. Marinduque 25. Northern Samar
12. Or. Mindoro 26. Eastern Samar
13. Occ. Mindoro 27. Western Samar
14. Palawan.
B. SUB-PROVINCES:

1. Guimaras 3. Siquior
2. Biliran

C. CITIES:

1. Laog 10. Bacolod

2. Dagupan 11. Bago
3. San Carlos 12. Canlaon
4. Batangas 13. La Carlota
5. Lipa 14. Bais
6. Puerto Princesa 15. Dumaguete
7. San Carlos (Negros 16. Iloilo
Occ.) 17. Roxas
8. Cadiz 18. Tagbilaran
9. Silay 19. Lapu-lapu

20. Cebu 24. Tacloban

21. Mandaue 25. Ormoc
22. Danao 26. Calbayog
23. Toledo

On September 25, 1971, the President issued Proclamation No. 889-C, restoring the privilege
of the writ in the following provinces and cities:

A. PROVINCES:

1. Surigao del Norte 8. Agusan del Sur

2. Surigao del Sur 9. Misamis Or.
3. Davao del Norte 10. Misamis Occ.
4. Davao del Sur 11. Zamboanga del Norte
5. Davao Oriental 12. Basilan
6. Bukidnon 13. Pagadian
7. Agusan del Norte

B. CITIES:

1. Surigao 8. Tangub
2. Davao 9. Dapitan
3. Butuan 10. Dipolog
4. Cagayan 11. Zamboanga
5. Gingoong 12. Basilan
6. Ozamiz 13. Pagadian.
7. Oroquieta

On October 4, 1971, the suspension of the privilege was further lifted by Proclamation No.
889-D, in the following places:

A. PROVINCES:
1. Cagayan 5. Camarines
2. Cavite 6. Albay
3. Mountain Province 7. Sorsogon
4. Kalinga-Apayao

B. CITIES:

1. Cavite City 3. Trece Martires

2. Tagaytay 4. Legaspi

As a consequences, the privilege of the writ of habeas corpus is still suspended in the
following eighteen (18) provinces, two (2) sub-provinces and eighteen (18) cities, to wit:

A. PROVINCE:

1. Bataan 10. North Cotabato

2. Benguet 11. Nueva Ecija
3. Bulacan 13. Pampanga
4. Camarines Sur 14. Quezon
5. Ifugao 15. Rizal
6. Isabela 16. South Cotabato
7. Laguna 17. Tarlac
8. Lanao del Norte 18. Zambales
9. Lanao del Norte

B. SUB-PROVINCES:

1. Aurora 2. Quirino

C. CITIES:

1. Angeles 10. Manila

2. Baguio 11. Marawi
3. Cabanatuan 12. Naga
4. Caloocan 13. Olongapo
5. Cotabato 14. Palayan
6. General Santos 15. Pasay
7. Iligan 16. Quezon
8 Iriga 17. San Jose
9 Lucena 18. San Pablo

The first major question that the Court had to consider was whether it would adhere to the
view taken in Barcelon v. Baker, 2 and reiterated in Montenegro v. Castaeda, 3 pursuant to
which, "the authority to decide whether the exigency has arisen requiring suspension (of the
privilege of the writ of habeas corpus) belongs to the President and his 'decision is final and
conclusive' upon the courts and upon all other persons." Indeed, had said question been decided
in the affirmative the main issue in all of these cases, except
L-34339, would have been settled, and, since the other issues were relatively of minor importance,
said cases could have been readily disposed of. Upon mature deliberation, a majority of the
Members of the Court had, however, reached, although tentatively, a consensus to the contrary,
and decided that the Court had authority to and should inquire into the existence of the factual
bases required by the Constitution for the suspension of the privilege of the writ; but before
proceeding to do so, the Court deemed it necessary to hear the parties on the nature and extent of
the inquiry to be undertaken, none of them having previously expressed their views thereof.
Accordingly, on October 5, 1971, the Court issued, in L-33964, L-33965, L-33973 and L-33982, a
resolution stating in part that

... a majority of the Court having tentatively arrived at a consensus that it may inquire in order
to satisfy itself of the existence of the factual bases for the issuance of Presidential
Proclamations Nos. 889 and 889-A (suspending the privilege of the writ of habeas corpus for
all persons detained or to be detained for the crimes of rebellion or insurrection throughout the
Philippines, which area has lately been reduced to some eighteen provinces, two
subprovinces and eighteen cities with the partial lifting of the suspension of the privilege
effected by Presidential Proclamations Nos. 889-B, 889-C and 889-D) and thus determine the
constitutional sufficiency of such bases in the light of the requirements of Article III, sec. 1, par.
14, and Article VII, sec. 10, par. 2, of the Philippine Constitution; and considering that the
members of the Court are not agreed on the precise scope and nature of the inquiry to be
made in the premises, even as all of them are agreed that the Presidential findings are
entitled to great respect, the Court RESOLVED that these cases be set for rehearing on
October 8, 1971 at 9:30 A.M.

xxx xxx xxx

On October 8, 1971, said four cases were, therefore, heard, once again, but, this time jointly
with cases Nos. L-34004, L-34013, and L-34039, and the parties were then granted a period
to file memoranda, in amplification of their respective oral arguments, which memoranda were
submitted from October 12 to October 21, 1971.

Respondents having expressed, during the oral arguments, on September 1 and October 8,
1971, their willingness to impart to the Court classified information relevant to these cases,
subject to appropriate security measures, the Court met at closed doors, on October 28 and
29, 1971, and, in the presence of three (3) attorneys for the petitioners, chosen by the latter,
namely, Senator Jose W. Diokno, Senator Salvador H. Laurel, and Atty. Leopoldo Africa, as
well as of the Solicitor General and two (2) members of his staff, was briefed, by Gen. Manuel
Yan, Chief of Staff of the Armed Forces of the Philippines, Gen. Fidel Ramos, Deputy Chief of
Staff, Gen. Felizardo Tanabe, Col. Tagumpay Nanadiego, Judge Advocate General, JAGS
(GSC), and other ranking officers of said Armed Forces, on said classified information, most
of which was contained in reports and other documents already attached to the records.
During the proceedings, the members of the Court, and, occassionally, counsel for the
petitioners, propounded pertinent questions to said officers of the Armed Forces. Both parties
were then granted a period of time within which to submit their respective observations, which
were filed on November 3, 1971, and complemented by some documents attached to the
records on November 6, 1971, and a summary, submitted on November 15, 1971, of the
aforesaid classified information.

In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed and the
parties therein were heard in oral argument on November 4, and 16, 1971, respectively.

On November 15, 1971, the Solicitor General filed manifestations motions stating that on
November 13, 1971, the following petitioners were:

(a) released from custody:

(1) Teodosio Lansang -- G.R. No. L-33964
(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013
(7) Filomeno M. de Castro -- " " L-34039
(8) Barcelisa de Castro -- " " L-34039
(9) Antolin Oreta, Jr. -- " " L-34264.

(b) charged, together with other persons named in the criminal complaint filed therefor, with a
violation of Republic Act No. 1700 (Anti-Subversion Act), in the City Fiscal's Office of Quezon
City:

(1) Angelo de los Reyes -- G.R. No. L-22982 *

(2) Teresito Sison -- " " L-33982 *

(c) accused, together with many others named in the criminal complaint filed therefor, of a
violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act), in the Court of First
Instance of Rizal:

(1) Rodolfo del Rosario -- G.R. No. L-33969 **

(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *

and continue under detention pursuant to Proclamation No. 889, as amended, and praying
that the petitions in G.R. Nos. L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039 be
dismissed, without prejudice to the resolution of the remaining cases. Copy of the criminal
complaint filed, as above stated, with the Court of First Instance of Rizal and docketed therein
as Criminal Case No. Q-1623 of said court which was appended to said
manifestations-motions of the respondent as Annex 2 thereof shows that Gary Olivar, the
petitioner in L-34339, is one of the defendants in said case.

Required to comment on said manifestations-motions, Luzvimindo David, petitioner in

L-33973, in his comment dated November 23, 1971, urged the Court to rule on the merits of
the petitions in all of these cases, particularly on the constitutionality of Presidential
Proclamation No. 889, as amended, upon the ground that he is still detained and that the
main issue is one of public interest involving as it does the civil liberties of the people. Angelo
de los Reyes, one of the petitioners in L-33964, L-33965 and L-33973, Nemesio E. Prudente
and Gerardo Tomas, for whose respective benefit the petitions in L-33982 and L-34004 have
been filed, maintained that the issue in these cases is not moot, not even for the detainees
who have been released, for, as long as the privilege of the writ remains suspended, they are
in danger of being arrested and detained again without just cause or valid reason. In his reply,
dated and filed on November 29, 1971, the Solicitor General insisted that the release of the
above-named petitioners rendered their respective petitions moot and academic.

Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of the
proclamation suspending the privilege of the writ of habeas corpus. In this connection, it
should be noted that, as originally formulated, Proclamation No. 889 was contested upon the
ground that it did not comply with the pertinent constitutional provisions, namely, paragraph
(14) of section 1, Article III of our Constitution, reading:

The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion,
insurrection, or rebellion, when the public safety requires it, in any way of which events the
same may be suspended wherever during such period the necessity for such suspension
shall exist.

and paragraph (2), section 10, Article VII of the same instrument, which provides that:

The President shall be commander-in-chief of all armed forces of the Philippines, and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or
rebellion, or imminent danger thereof when the public safety requires it, he may suspend the
privileges of the writ of habeas corpus, or place the Philippines or any part thereof under
martial law.

Regardless of whether or not the President may suspend the privilege of the writ of habeas
corpus in case of "imminent danger" of invasion, insurrection or rebellion which is one of
the grounds stated in said paragraph (2), section 10 of Art. VII of the Constitution, but not
mentioned in paragraph (14), section 1 of its Bill of Rights petitioners maintained that
Proclamation No. 889 did not declare the existence of actual "invasion insurrection or
rebellion or imminent danger thereof," and that, consequently, said Proclamation was invalid.
This contention was predicated upon the fact that, although the first "whereas" in
Proclamation No. 889 stated that "lawless elements" had "entered into a conspiracy and have
in fact joined and banded their forces together for the avowed purposeof actually staging,
undertaking and waging an armed insurrection and rebellion," the actuality so alleged refers
to the existence, not of an uprising that constitutes the essence of a rebellion or insurrection,
but of the conspiracyand the intent to rise in arms.

Whatever may be the merit of this claim, the same has been rendered moot and academic by
Proclamation No. 889-A, issued nine (9) days after the promulgation of the original
proclamation, or on August 30, 1971. Indeed, said Proclamation No. 889-A amended, inter
alia, the first "whereas" of the original proclamation by postulating the said lawless elements
"have entered into a conspiracy and have in fact joined and banded their forces together for
the avowed purpose of staging, undertaking, waging and are actually engaged in an armed
insurrection and rebellion in order to forcibly seize political power in this country, overthrow
the duly constituted government, and supplant our existing political, social, economic and
legal order with an entirely new one ...." Moreover, the third "whereas" in the original
proclamation was, likewise, amended by alleging therein that said lawless elements, "by their
acts of rebellion and insurrection," have created a state of lawlessness and disorder affecting
public safety and the security of the State. In other words, apart from adverting to the
existence of actualconspiracy and of the intent to rise in arms to overthrow the government,
Proclamation No. 889-A asserts that the lawless elements "are actually engaged in an armed
insurrection and rebellion" to accomplish their purpose.

It may not be amiss to note, at this juncture, that the very tenor of the original proclamation
and particularly, the circumstances under which it had been issued, clearly suggest the intent
to aver that there was and is, actually, a state of rebellion in the Philippines, although the
language of said proclamation was hardly a felicitous one, it having in effect, stressed the
actuality of the intent to rise in arms, rather than of the factual existence of the rebellion itself.
The pleadings, the oral arguments and the memoranda of respondents herein have
consistently and abundantly emphasized to justify the suspension of the privilege of the
writ of habeas corpus the acts of violence and subversion committed prior to August 21,
1971, by the lawless elements above referred to, and the conditions obtaining at the time of
the issuance of the original proclamation. In short, We hold that Proclamation No. 889-A has
superseded the original proclamation and that the flaws attributed thereto are purely formal in
nature.

II

Let us now consider the substantive validity of the proclamation, as amended. Pursuant to the
above-quoted provisions of the Constitution, two (2) conditions must concur for the valid
exercise of the authority to suspend the privilege to the writ, to wit: (a) there must be "invasion,
insurrection, or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the
Constitution "imminent danger thereof," and (b) "public safety" must require the suspension
of the privilege. The Presidential Proclamation under consideration declares that there has
been and there is actually a state of rebellion and
that 4 "public safety requires that immediate and effective action be taken in order to maintain
peace and order, secure the safety of the people and preserve the authority of the State."

Are these findings conclusive upon the Court? Respondents maintain that they are, upon the
authority of Barcelon v. Baker 5 and Montenegro v. Castaeda. 6 Upon the other hand, petitioners
press the negative view and urge a reexamination of the position taken in said two (2) cases, as
well as a reversal thereof.

The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a) it
relied heavily upon Martin v. Mott 7 involving the U.S. President's power to call out the militia,
which he being the commander-in-chief of all the armed forces may be exercised to
suppress or prevent any lawless violence, even without invasion, insurrection or rebellion, or
imminent danger thereof, and is, accordingly, much broader than his authority to suspend the
privilege of the writ of habeas corpus, jeopardizing as the latter does individual liberty; and (b) the
privilege had been suspended by the American Governor-General, whose act, as representative of
the Sovereign, affecting the freedom of its subjects, can hardly be equated with that of the
President of the Philippines dealing with the freedom of the Filipino people, in whom sovereignty
resides, and from whom all government authority emanates. The pertinent ruling in the
Montenegro case was based mainly upon the Barcelon case, and hence, cannot have more
weight than the same. Moreover, in the Barcelon case, the Court held that it could go into the
question: "Did the Governor-General" acting under the authority vested in him by the Congress
of the United States, to suspend the privilege of the writ of habeas corpus under certain conditions
"act in conformance with such authority?" In other words, it did determine whether or not the
Chief Executive had acted in accordance with law. Similarly, in the Montenegro case, the Court
held that petitioner therein had "failed to overcome the presumption of correctness which the
judiciary accords to acts of the Executive ...." In short, the Court considered the question whether
or not there really was are rebellion, as stated in the proclamation therein contested.

Incidentally, even the American jurisprudence is neither explicit nor clear on the point under
consideration. Although some cases 8 purport to deny the judicial power to "review" the findings
made in the proclamations assailed in said cases, the tenor of the opinions therein given,
considered as a whole, strongly suggests the court's conviction that the conditions essential for the
validity of said proclamations or orders were, in fact, present therein, just as the opposite view
taken in other cases 9 had a backdrop permeated or characterized by the belief that said conditions
were absent. Hence, the dictum of Chief Justice Taney to the effect that "(e)very case must
depend on its own circumstances." 10 One of the important, if not dominant, factors, in connection
therewith, was intimated in Sterling v. Constantin, 11 in which the Supreme Court of the United
States, speaking through Chief Justice Hughes, declared that:
.... When there is a substantial showing that the exertion of state power has overridden private
rightssecured by that Constitution, the subject is necessarily one for judicial inquiry in an
appropriate proceeding directed against the individuals charged with the transgression. To
such a case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to its
exercise. .... 12

In our resolution of October 5, 1971, We stated that "a majority of the Court" had
"tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence
of the factual bases for the issuance of Presidential Proclamations Nos. 889 and 889-A ... and
thus determine the constitutional sufficiency of such basesin the light of the requirements of
Article III, sec. 1, par. 14, and Article VII, sec. 10, par 2, of the Philippine Constitution...." Upon
further deliberation, the members of the Court are now unanimous in the conviction that it has
the authority to inquire into the existence of said factual bases in order to determine the
constitutional sufficiency thereof.

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The
authority conferred by the Constitution, both under the Bill of Rights and under the Executive
Department, is limited and conditional. The precept in the Bill of Rights establishes a general
rule, as well as an exception thereto. What is more, it postulates the former in the negative,
evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas
corpus shall not be suspended ...." It is only by way of exception that it permits the
suspension of the privilege "in cases of invasion, insurrection, or rebellion" or, under Art VII
of the Constitution, "imminent danger thereof" "when the public safety requires it, in any of
which events the same may be suspended wherever during such period the necessity for
such suspension shall exist." 13 For from being full and plenary, the authority to suspend the
privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed
setting or the conditions essential to its existence, but, also, as regards the time when and the
place where it may be exercised. These factors and the aforementioned setting or conditions mark,
establish and define the extent, the confines and the limits of said power, beyond which it does not
exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the
legislative department, adherence thereto and compliance therewith may, within proper bounds,
be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would
be meaningless. Surely, the framers of our Constitution could not have intended to engage in such
a wasteful exercise in futility.

Much less may the assumption be indulged in when we bear in mind that our political system
is essentially democratic and republican in character and that the suspension of the privilege
affects the most fundamental element of that system, namely, individual freedom. Indeed,
such freedom includes and connotes, as well as demands, the right of every single member of
our citizenry to freely discuss and dissent from, as well as criticize and denounce, the views,
the policies and the practices of the government and the party in power that he deems unwise,
improper or inimical to the commonwealth, regardless of whether his own opinion is
objectively correct or not. The untrammelled enjoyment and exercise of such right which,
under certain conditions, may be a civic duty of the highest order is vital to the democratic
system and essential to its successful operation and wholesome growth and development.

Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed
and exercised, not in derogation thereof, but consistently therewith, and, hence, within the
framework of the social order established by the Constitution and the context of the Rule of
Law. Accordingly, when individual freedom is used to destroy that social order, by means of
force and violence, in defiance of the Rule of Law such as by rising publicly and taking
arms against the government to overthrow the same, thereby committing the crime of
rebellion there emerges a circumstance that may warrant a limited withdrawal of the
aforementioned guarantee or protection, by suspending the privilege of the writ of habeas
corpus, when public safety requires it. Although we must be forewarned against mistaking
mere dissent no matter how emphatic or intemperate it may be for dissidence
amounting to rebellion or insurrection, the Court cannot hesitate, much less refuse when
the existence of such rebellion or insurrection has been fairly established or cannot
reasonably be denied to uphold the finding of the Executive thereon, without, in effect,
encroaching upon a power vested in him by the Supreme Law of the land and depriving him,
to this extent, of such power, and, therefore, without violating the Constitution and
jeopardizing the very Rule of Law the Court is called upon to epitomize.

As heretofore adverted to, for the valid suspension of the privilege of the writ: (a) there must
be "invasion, insurrection or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of
the Constitution "imminent danger thereof"; and (b) public safety must require the
aforementioned suspension. The President declared in Proclamation No. 889, as amended,
that both conditions are present.

As regards the first condition, our jurisprudence 14 attests abundantly to the Communist activities
in the Philippines, especially in Manila, from the late twenties to the early thirties, then aimed
principally at incitement to sedition or rebellion, as the immediate objective. Upon the
establishment of the Commonwealth of the Philippines, the movement seemed to have waned
notably; but, the outbreak of World War II in the Pacific and the miseries, the devastation and
havoc, and the proliferation of unlicensed firearms concomitant with the military occupation of the
Philippines and its subsequent liberation, brought about, in the late forties, a resurgence of the
Communist threat, with such vigor as to be able to organize and operate in Central Luzon an army
called HUKBALAHAP, during the occupation, and renamed Hukbong Mapagpalaya ng Bayan
(HMP) after liberation which clashed several times with the armed forces of the Republic. This
prompted then President Quirino to issue Proclamation No. 210, dated October 22, 1950,
suspending the privilege of the writ of habeas corpus, the validity of which was upheld
in Montenegro v. Castaeda. 15 Days before the promulgation of said Proclamation, or on October
18, 1950, members of the Communist Politburo in the Philippines were apprehended in Manila.
Subsequently accused and convicted of the crime of rebellion, they served their respective
sentences. 16

The fifties saw a comparative lull in Communist activities, insofar as peace and order were
concerned. Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as the
Anti-Subversion Act, was approved, upon the ground stated in the very preamble of said
statute that.

... the Communist Party of the Philippines, although purportedly a political party, is in fact an
organized conspiracy to overthrow the Government of the Republic of the Philippines, not
only by force and violence but also by deceit, subversion and other illegal means, for the
purpose of establishing in the Philippines a totalitarian regime subject to alien domination and
control;

... the continued existence and activities of the Communist Party of the Philippines constitutes
a clear, present and grave danger to the security of the Philippines; 17 and

... in the face of the organized, systematic and persistent subversion, national in scope but
international in direction, posed by the Communist Party of the Philippines and its activities,
there is urgent need for special legislation to cope with this continuing menace to the freedom
and security of the country....
In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the
Senate Ad Hoc Committee of Seven copy of which Report was filed in these cases by the
petitioners herein

The years following 1963 saw the successive emergence in the country of several mass
organizations, notably the Lapiang Manggagawa (now the Socialist Party of the Philippines)
among the workers; the Malayang Samahan ng mga Magsasaka (MASAKA) among the
peasantry; the Kabataang Makabayan (KM) among the youth/students; and the Movement for
the Advancement of Nationalism (MAN) among the intellectuals/professionals. The PKP has
exerted all-out effort to infiltrate, influence and utilize these organizations in promoting its
radical brand of
nationalism. 18

Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups, one
of which composed mainly of young radicals, constituting the Maoist faction reorganized
the Communist Party of the Philippines early in 1969 and established a New People's Army.
This faction adheres to the Maoist concept of the "Protracted People's War" or "War of
National Liberation." Its "Programme for a People's Democratic Revolution" states, inter alia:

The Communist Party of the Philippines is determined to implement its general programme
for a people's democratic revolution. All Filipino communists are ready to sacrifice their lives
for the worthy cause of achieving the new type of democracy, of building a new Philippines
that is genuinely and completely independent, democratic, united, just and prosperous ...

xxx xxx xxx

The central task of any revolutionary movement is to seize political power. The Communist
Party of the Philippines assumes this task at a time that both the international and national
situations are favorable of asking the road of armed
revolution ... 19

In the year 1969, the NPA had according to the records of the Department of National
Defense conducted raids, resorted to kidnappings and taken part in other violent incidents
numbering over 230, in which it inflicted 404 casualties, and, in turn, suffered 243 losses. In
1970, its records of violent incidents was about the same, but the NPA casualties more than
doubled.

At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the
traditional group or to the Maoist faction, believe that force and violence are indispensable to
the attainment of their main and ultimate objective, and act in accordance with such belief,
although they may disagree on the means to be used at a given time and in a particular place;
and (b) there is a New People's Army, other, of course, that the arm forces of the Republic
and antagonistic thereto. Such New People's Army is per se proof of the existence of a
rebellion, especially considering that its establishment was announced publicly by the
reorganized CPP. Such announcement is in the nature of a public challenge to the duly
constituted authorities and may be likened to a declaration of war, sufficient to establish a war
status or a condition of belligerency, even before the actual commencement of hostilities.

We entertain, therefore, no doubts about the existence of a sizeable group of men who have
publicly risen in arms to overthrow the government and have thus been and still are engaged
in rebellion against the Government of the Philippines.
In fact, the thrust of petitioners' argument is that the New People's Army proper is too small,
compared with the size of the armed forces of the Government, that the Communist rebellion
or insurrection cannot so endanger public safety as to require the suspension of the privilege
of the writ of habeas corpus. This argument does not negate, however, the existence of a
rebellion, which, from the constitutional and statutory viewpoint, need not be widespread or
attain the magnitude of a civil war. This is apparent from the very provision of the Revised
Penal Code defining the crime of rebellion, 20 which may be limited in its scope to "any part" of
the Philippines, and, also, from paragraph (14) of section 1, Article III of the Constitution,
authorizing the suspension of the privilege of the writ "wherever" in case of rebellion "the
necessity for such suspension shall exist." In fact, the case of Barcelon v. Baker referred to a
proclamation suspending the privilege in the provinces of Cavite and Batangas only. The case of
In re Boyle 21 involved a valid proclamation suspending the privilege in a smaller area a country
of the state of Idaho.

The magnitude of the rebellion has a bearing on the second condition essential to the validity
of the suspension of the privilege namely, that the suspension be required by public safety.
Before delving, however, into the factual bases of the presidential findings thereon, let us
consider the precise nature of the Court's function in passing upon the validity of Proclamation
No. 889, as amended.

Article VII of the 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 withinthe
sphere allotted to him by the Basic Law, and the authority to determine whether or not he has
so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally
supreme.

In the exercise of such authority, the function of the Court is merely to check not
to supplant 22 the Executive,or to ascertain merely whether he had gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the
wisdom of his act. To be sure, the power of the Court to determine the validity of the contested
proclamation is far from being identical to, or even comparable with, its power over ordinary civil or
criminal cases elevated thereto by ordinary appeal from inferior courts, in which cases the
appellate court has all of the powers of the court of origin.

Under the principle of separation of powers and the system of checks and balances, the
judicial authority to review decisions of administrative bodies or agencies is much more
limited, as regards findings of fact made in said decisions. Under the English law, the
reviewing court determines only whether there is some evidentiary basis for the contested
administrative findings; no quantitative examination of the supporting evidence is undertaken.
The administrative findings can be interfered with only if there is no evidence whatsoever in
support thereof, and said finding is, accordingly, arbitrary, capricious and obviously
unauthorized. This view has been adopted by some American courts. It has, likewise, been
adhered to in a number of Philippine cases. Other cases, in both jurisdictions, have applied
the "substantial evidence" rule, which has been construed to mean "more than a mere
scintilla" or "relevant evidence as a reasonable mind might accept as adequate to support a
conclusion," 23 even if other minds equally reasonable might conceivably opine otherwise.

Manifestly, however, this approach refers to the review of administrative determinations

involving the exercise of quasi-judicial functions calling for or entailing the reception of
evidence. It does not and cannot be applied, in its aforesaid form, in testing the validity of an
act of Congress or of the Executive, such as the suspension of the privilege of the writ
of habeas corpus, for, as a general rule, neither body takes evidence in the sense in which
the term is used in judicial proceedings before enacting a legislation or suspending the writ.
Referring to the test of the validity of a statute, the Supreme Court of the United States,
speaking through Mr. Justice Roberts, expressed, in the leading case of Nebbia v. New
York, 24 the view that:

... If the laws passed are seen to have a reasonable relation to a proper legislative purpose,
and areneither arbitrary nor discriminatory, the requirements of due process are satisfied,
and judicial determination to that effect renders a court functus officio ... With the wisdom of
the policy adopted, with the adequacy or practically of the law enacted to forward it, the courts
are both incompetent andunauthorized to deal ...

Relying upon this view, it is urged by the Solicitor General

... that judicial inquiry into the basis of the questioned proclamation can go no further than to
satisfy the Court not that the President's decision is correct and that public safety was
endanger by the rebellion and justified the suspension of the writ, but that in suspending the
writ, the President did not act arbitrarily.

No cogent reason has been submitted to warrant the rejection of such test. Indeed, the
co-equality of coordinate branches of the Government, under our constitutional system,
seems to demand that the test of the validity of acts of Congress and of those of the Executive
be, mutatis mutandis, fundamentally the same. Hence, counsel for petitioner Rogelio Arienda
admits that the proper standard is not correctness, but arbitrariness.

Did public safety require the suspension of the privilege of the writ of habeas corpus decreed
in Proclamation No. 889, as amended? Petitioners submit a negative answer upon the ground:
(a) that there is no rebellion; (b) that, prior to and at the time of the suspension of the privilege,
the Government was functioning normally, as were the courts; (c) that no untoward incident,
confirmatory of an alleged July-August Plan, has actually taken place after August 21, 1971;
(d) that the President's alleged apprehension, because of said plan, is non-existent and
unjustified; and (e) that the Communist forces in the Philippines are too small and weak to
jeopardize public safety to such extent as to require the suspension of the privilege of the writ
of habeas corpus.

As above indicated, however, the existence of a rebellion is obvious, so much so that counsel
for several petitioners herein have admitted it.

With respect to the normal operation of government, including courts, prior to and at the time
of the suspension of the privilege, suffice it to say that, if the conditions were such that courts
of justice no longer functioned, a suspension of the privilege would have been unnecessary,
there being no courts to issue the writ of habeas corpus. Indeed, petitioners' reference to the
normal operation of courts as a factor indicative of the illegality of the contested act of the
Executive stems, perhaps, from the fact that this circumstance was adverted to in some
American cases to justify the invalidation therein decreed of said act of the Executive. Said
cases involved, however, the conviction by military courts of members of
the civilian population charged with common crimes. It was manifestly, illegal for military
courts to assume jurisdiction over civilians so charged, when civil courts were functioning
normally.
Then, too, the alleged absence of any untoward incident after August 21, 1971, does not
necessarily bear out petitioners' view. What is more, it may have been due precisely to the
suspension of the privilege. To be sure, one of its logical effects is to compel those connected
with the insurrection or rebellion to go into hiding. In fact, most of them could not be located by
the authorities, after August 21, 1971.

The alleged July-August Plan to terrorize Manila is branded as incredible, upon the theory that,
according to Professor Egbal Ahman of Cornell University, "guerrilla use of terror ... is
sociological and psychologically selective," and that the indiscriminate resort to terrorism is
bound to boomerang, for it tends to alienate the people's symphaty and to deprive the
dissidents of much needed mass support. The fact, however, is that the violence used is
some demonstrations held in Manila in 1970 and 1971 tended to terrorize the bulk of its
inhabitants. It would have been highly imprudent, therefore, for the Executive to discard the
possibility of a resort to terrorism, on a much bigger scale, under the July-August Plan.

We will now address our attention to petitioners' theory to the effect that the New People's
Army of the Communist Party of the Philippines is too small to pose a danger to public safety
of such magnitude as to require the suspension of the privilege of the writ of habeas corpus.
The flaw in petitioners' stand becomes apparent when we consider that it assumes that the
Armed Forces of the Philippines have no other task than to fight the New People's Army, and
that the latter is the only threat and a minor one to our security. Such assumption is
manifestly erroneous.

The records before Us show that, on or before August 21, 1971, the Executive had
information and reports subsequently confirmed, in many respects, by the abovementioned
Report of the Senate Ad-Hoc Committee of Seven 25 to the effect that the Communist Party of
the Philippines does not merely adhere to Lenin's idea of a swift armed uprising; that it has, also,
adopted Ho Chi Minh's terrorist tactics and resorted to the assassination of uncooperative local
official; that, in line with this policy, the insurgents have killed 5 mayors, 20 barrio captains and 3
chiefs of police; that there were fourteen (14) meaningful bombing incidents in the Greater Manila
Area in 1970; that the Constitutional Convention Hall was bombed on June 12, 1971; that, soon
after the Plaza Miranda incident, the NAWASA main pipe, at the Quezon City-San Juan boundary,
was bombed; that this was followed closely by the bombing of the Manila City Hall, the COMELEC
building, the Congress Building and the MERALCO substation at Cubao, Quezon City; and that
the respective residences of Senator Jose J. Roy and Congressman Eduardo Cojuangco were,
likewise, bombed, as were the MERALCO main office premises, along Ortigas Avenue, and the
Doctor's Pharmaceuticals, Inc. Building, in Caloocan City.

Petitioners, similarly, fail to take into account that as per said information and reports the
reorganized Communist Party of the Philippines has, moreover, adopted Mao's concept of
protracted people's war, aimed at the paralyzation of the will to resist of the government, of
the political, economic and intellectual leadership, and of the people themselves; that
conformably to such concept, the Party has placed special emphasis upon a most extensive
and intensive program of subversion by the establishment of front organizations in urban
centers, the organization of armed city partisans and the infiltration in student groups, labor
unions, and farmer and professional groups; that the CPP has managed to infiltrate or
establish and control nine (9) major labor organizations; that it has exploited the youth
movement and succeeded in making Communist fronts of eleven (11) major student or youth
organizations; that there are, accordingly, about thirty (30) mass organizations actively
advancing the CPP interests, among which are the Malayang Samahan ng Magsasaka
(MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of
Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave
(SM) and the Malayang Pagkakaisa ng Kabataang Pilipino(MPKP); that, as of August, 1971,
the KM had two hundred forty-five (245) operational chapters throughout the Philippines, of
which seventy-three (73) were in the Greater Manila Area, sixty (60) in Northern Luzon,
forty-nine (49) in Central Luzon, forty-two (42) in the Visayas and twenty-one (21) in
Mindanao and Sulu; that in 1970, the Party had recorded two hundred fifty-eight (258) major
demonstrations, of which about thirty-three (33) ended in violence, resulting in fifteen (15)
killed and over five hundred (500) injured; that most of these actions were organized,
coordinated or led by the aforementioned front organizations; that the violent demonstrations
were generally instigated by a small, but well-trained group of armed agitators; that the
number of demonstrations heretofore staged in 1971 has already exceeded those of 1970;
and that twenty-four (24) of these demonstrations were violent, and resulted in the death of
fifteen (15) persons and the injury of many more.

Subsequent events as reported have also proven that petitioners' counsel have
underestimated the threat to public safety posed by the New People's Army. Indeed, it
appears that, since August 21, 1971, it had in Northern Luzon six (6) encounters and staged
one (1) raid, in consequence of which seven (7) soldiers lost their lives and two (2)others were
wounded, whereas the insurgents suffered five (5) casualties; that on August 26, 1971, a
well-armed group of NPA, trained by defector Lt. Victor Corpus, attacked the very command
port of TF LAWIN in Isabela, destroying two (2) helicopters and one (1) plane, and wounding
one (1) soldier; that the NPA had in Central Luzon a total of four (4) encounters, with two (2)
killed and three (3) wounded on the side of the Government, one (1) BSDU killed and three (3)
NPA casualties; that in an encounter at Botolan, Zambales, one (1) KM-SDK leader, an
unidentified dissident, and Commander Panchito, leader of the dissident group were killed;
that on August 26, 1971, there was an encounter in the barrio of San Pedro. Iriga City,
Camarines Sur, between the PC and the NPA, in which a PC and two (2) KM members were
killed; that the current disturbances in Cotabato and the Lanao provinces have been rendered
more complex by the involvement of the CPP/NPA, for, in mid-1971, a KM group, headed by
Jovencio Esparagoza, contacted the Higa-onan tribes, in their settlement in Magsaysay,
Misamis Oriental, and offered them books, pamphlets and brochures of Mao Tse Tung, as
well as conducted teach-ins in the reservation; that Esparagoza an operation of the PC in said
reservation; and that there are now two (2) NPA cadres in Mindanao.

It should, also, be noted that adherents of the CPP and its front organizations are, according
to intelligence findings, definitely capable of preparing powerful explosives out of locally
available materials; that the bomb used in the Constitutional Convention Hall was a
"clay-more" mine, a powerful explosive device used by the U.S. Army, believed to have been
one of many pilfered from the Subic Naval Base a few days before; that the President had
received intelligence information to the effect that there was a July-August Plan involving a
wave of assassinations, kidnappings, terrorism and mass destruction of property and that an
extraordinary occurence would signal the beginning of said event; that the rather serious
condition of peace and order in Mindanao, particularly in Cotabato and Lanao, demanded the
presence therein of forces sufficient to cope with the situation; that a sizeable part of our
armed forces discharge other functions; and that the expansion of the CPP activities from
Central Luzon to other parts of the country, particularly Manila and its suburbs, the Cagayan
Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region, required that the rest of our
armed forces be spread thin over a wide area.

Considering that the President was in possession of the above data except those related to
events that happened after August 21, 1971 when the Plaza Miranda bombing took place,
the Court is not prepared to hold that the Executive had acted arbitrarily or gravely abused his
discretion when he then concluded that public safety and national security required the
suspension of the privilege of the writ, particularly if the NPA were to strike simultaneously
with violent demonstrations staged by the two hundred forty-five (245) KM chapters, all over
the Philippines, with the assistance and cooperation of the dozens of CPP front organizations,
and the bombing or water mains and conduits, as well as electric power plants and
installations a possibility which, no matter how remote, he was bound to forestall, and a
danger he was under obligation to anticipate and arrest.

He had consulted his advisers and sought their views. He had reason to feel that the situation
was critical as, indeed, it was and demanded immediate action. This he took believing in
good faith that public safety required it. And, in the light of the circumstances adverted to
above, he had substantial grounds to entertain such belief.

Petitioners insist that, nevertheless, the President had no authority to suspend the privilege in
the entire Philippines, even if he may have been justified in doing so in some provinces or
cities thereof. At the time of the issuance of Proclamation No. 889, he could not be reasonably
certain, however, about the placed to be excluded from the operation of the proclamation. He
needed some time to find out how it worked, and as he did so, he caused the suspension to
be gradually lifted, first, on September 18, 1971, in twenty-seven (27) provinces, three (3)
sub-provinces and twenty six (26) cities; then, on September 25, 1971, in order fourteen (14)
provinces and thirteen (13) cities; and, still later, on October 4, 1971, in seven (7) additional
provinces and four (4) cities, or a total of forty-eight (48) provinces, three (3) sub-provinces
and forth-three (43) cities, within a period of forty-five (45) days from August 21, 1971.

Neither should We overlook the significance of another fact. The President could have
declared a generalsuspension of the privilege. Instead, Proclamation No. 889 limited the
suspension to persons detained "for crimes of insurrection or rebellion, and all other crimes
and offenses committed by them in furtherance or on the occasion thereof, or incident thereto,
or in connection therewith." Even this was further limited by Proclamation No. 889-A, which
withdrew from the coverage of the suspension persons detained for other crimes and
offenses committed "on the occasion" of the insurrection or rebellion, or "incident thereto, in or
connection therewith." In fact, the petitioners in L-33964, L-33982 and L-34004 concede that
the President had acted in good faith.

In case of invasion, insurrection or rebellion or imminent danger thereof, the President has,
under the Constitution, three (3) courses of action open to him, namely: (a) to call out the
armed forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to place the
Philippines or any part thereof under martial law. He had, already, called out the armed forces,
which measure, however, proved inadequate to attain the desired result. Of the two (2)other
alternatives, the suspension of the privilege is the least harsh.

In view of the foregoing, it does not appear that the President has acted arbitrary in issuing
Proclamation No. 889, as amended, nor that the same is unconstitutional.

III

The next question for determination is whether petitioners herein are covered by said
Proclamation, as amended. In other words, do petitioners herein belong to the class of
persons as to whom privilege of the writ of habeas corpus has been suspended?

In this connection, it appears that Bayani Alcala, one of the petitioners in L-33964, Gerardo
Tomas, petitioner in L-34004, and Reynaldo Rimando, petitioner in L-34013, were, on
November 13, 1971, released "permanently" meaning, perhaps, without any intention to
prosecute them upon the ground that, although there was reasonable ground to believe
that they had committed an offense related to subversion, the evidence against them is
insufficient to warrant their prosecution; that Teodosio Lansang, one of the petitioners in
L-33964, Rogelio Arienda, petitioner in L-33965, Nemesio Prudente, petitioner in L-33982,
Filomeno de Castro and Barcelisa C. de Castro, for whose benefit the petition in L-34039 was
filed, and Antolin Oreta, Jr., petitioner in L-34265, were, on said date, "temporarily released";
that Rodolfo del Rosario, one of the petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L-33973, as well as
Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, are still under
detention and, hence, deprived of their liberty, they together with over forty (40) other
persons, who are at large having been accused, in the Court of First Instance of Rizal, of a
violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act); and that Angelo delos
Reyes and Teresito Sison, intervenors in said L-33964, L-33965 and
L-33973, are, likewise, still detained and have been charged together with over fifteen (15)
other persons, who are, also, at large with another violation of said Act, in a criminal
complaint filed with the City Fiscal's Office of Quezon City.

With respect to Vicente Ilao and Juan Carandang petitioners in L-33965 who were
released as early as August 31, 1971, as well as to petitioners Nemesio Prudente, Teodosio
Lansang, Rogelio Arienda, Antolin Oreta, Jr., Filomeno de Castro, Barcelisa C. de Castro,
Reynaldo Rimando, Gerardo Tomas and Bayani Alcala, who were released on November 13,
1971, and are no longer deprived of their liberty, their respective petitions have, thereby,
become moot and academic, as far as their prayer for release is concerned, and should,
accordingly, be dismissed, despite the opposition thereto of counsel for Nemesio Prudente
and Gerardo Tomas who maintain that, as long as the privilege of the writ remains suspended,
these petitioners might be arrested and detained again, without just cause, and that,
accordingly, the issue raised in their respective petitions is not moot. In any event, the
common constitutional and legal issues raised in these cases have, in fact, been decided in
this joint decision.

Must we order the release of Rodolfo del Rosario, one of the petitioners in
L-33964, Angelo de los Reyes, Victor Felipe and Teresito Sison, intervenors in L-33964,
L-33965 and L-33973, Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in
L-34339, who are still detained? The suspension of the privilege of the writ was decreed by
Proclamation No. 889, as amended, for persons detained "for the crimes of insurrection or
rebellion and other overt acts committed by them in furtherance thereof."

The records shows that petitioners Luzvimindo David, Rodolfo del Rosario, Victor Felipe,
Angelo de los Reyes, Teresito Sison and Gary Olivar are accused in Criminal Case No.
Q-1623 of the Court of First Instance of Rizal with a violation of the Anti-Subversion Act and
that the similar charge against petitioners Angelo de los Reyes and Teresito Sison in a
criminal complaint, originally filed with the City Fiscal of Quezon City, has, also, been filed
with said court. Do the offenses so charged constitute one of the crimes or overt acts
mentioned in Proclamation No. 889, as amended?

In the complaint in said Criminal Case No. 1623, it is alleged:

That in or about the year 1968 and for sometime prior thereto and thereafter up to and
including August 21, 1971, in the city of Quezon, Philippines, and elsewhere in the Philippines,
within the jurisdiction of this Honorable Court, the above-named accused knowingly, wilfully
and by overt acts became officers and/or ranking leaders of the Communist Party of the
Philippines, a subversive association as defined by Republic Act No. 1700, which is an
organized conspiracy to overthrow the government of the Republic of the Philippines by force,
violence, deceit, subversion and other illegal means, for the purpose of establishing in the
Philippines a communist totalitarian regime subject to alien domination and control;

That all the above-named accused, as such officers and/or ranking leaders of the Communist
Party of the Philippines conspiring, confederating and mutual helping one another, did then
and there knowingly, wilfully, and feloniously and by overt acts committed subversive acts all
intended to overthrow the government of the Republic of the Philippines, as follows:

1. By rising publicly and taking arms against the forces of the government, engaging in war
against the forces of the government, destroying property or committing serious violence,
exacting contributions or diverting public lands or property from the law purposes for which
they have been appropriated;

2. By engaging by subversion thru expansion and requirement activities not only of the
Communist Party of the Philippines but also of the united front organizations of the
Communist Party of the Philippines as the Kabataang Makabayan (KM), Movement for the
Democratic Philippines (MDP), Samahang Demokratikong Kabataan (SDK), Students'
Alliance for National Democracy (STAND), MASAKA Olalia-faction, Student Cultural
Association of the University of the Philippines (SCAUP), KASAMA, Pagkakaisa ng
Magbubukid ng Pilipinas (PMP) and many others; thru agitation promoted by rallies,
demonstration and strikes some of them violent in nature, intended to create social discontent,
discredit those in power and weaken the people's confidence in the government; thru
consistent propaganda by publications, writing, posters, leaflets of similar means; speeches,
teach-ins, messages, lectures or other similar means; or thru the media as the TV, radio or
newspapers, all intended to promote the Communist pattern of subversion;

3. Thru urban guerilla warfare characterized by assassinations, bombings, sabotage,

kidnapping and arson, intended to advertise the movement, build up its morale and prestige,
discredit and demoralize the authorities to use harsh and repressive measures, demoralize
the people and weaken their confidence in the government and to weaken the will of the
government to resist.

That the following aggravating circumstances attended the commission of the offense:

a. That the offense was committed in contempt of and with insult to the public authorities;

b. That some of the overt acts were committed in the Palace of the Chief Executive;

c. That craft, fraud, or disguise was employed;

d. That the offense was committed with the aid of armed men;

e. That the offense was committed with the aid of persons under fifteen(15) years old.

Identical allegations are made in the complaint filed with the City Fiscal of Quezon City,
except that the second paragraph thereof is slightly more elaborate than that of the complaint
filed with the CFI, although substantially the same. 26

In both complaints, the acts imputed to the defendants herein constitute rebellion and
subversion, of in the language of the proclamation "other overt acts committed ... in
furtherance" of said rebellion, both of which are covered by the proclamation suspending the
privilege of the writ. It is clear, therefore, that the crime for which the detained petitioners are
held and deprived of their liberty are among those for which the privilege of the writ ofhabeas
corpus has been suspended.

Up to this point, the Members of the Court are unanimous on the legal principles enunciated.

After finding that Proclamation No. 889, as amended, is not invalid and that petitioners
Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and
Teresito Sison are detained for and actually accused of an offense for which the privilege of
the writ has been suspended by said proclamation, our next step would have been the
following: The Court, or a commissioner designated by it, would have received evidence on
whether as stated in respondents' "Answer and Return" said petitioners had been
apprehended and detained "on reasonable belief" that they had "participated in the crime of
insurrection or rebellion."

It is so happened, however, that on November 13, 1971 or two (2) days before the
proceedings relative to the briefing held on October 28 and 29, 1971, had been completed by
the filing 27 of the summary of the matters then taken up the aforementioned criminal
complaints were filed against said petitioners. What is more, the preliminary examination and/or
investigation of the charges contained in said complaints has already begun. The next question,
therefore, is: Shall We now order, in the cases at hand, the release of said petitioners herein,
despite the formal and substantial validity of the proclamation suspending the privilege, despite the
fact that they are actually charged with offenses covered by said proclamation and despite the
aforementioned criminal complaints against them and the preliminary examination and/or
investigations being conducted therein?

The Members of the Court, with the exception of Mr. Justice Fernando, are of the opinion, and,
so hold, that, instead of this Court or its Commissioner taking the evidence adverted to above,
it is best to let said preliminary examination and/or investigation to be completed, so that
petitioners' released could be ordered by the court of first instance, should it find that there is
no probable cause against them, or a warrant for their arrest could be issued, should a
probable cause be established against them. Such course of action is more favorable to the
petitioners, inasmuch as the preliminary examination or investigation requires a greater
quantum of proof than that needed to establish that the Executive had not acted arbitrary in
causing the petitioners to be apprehended and detained upon the ground that they had
participated in the commission of the crime of insurrection or rebellion. And, it is mainly for the
reason that the Court has opted to allow the Court of First Instance of Rizal to proceed with
the determination of the existence of probable cause, although ordinarily the Court would
have merely determined the existence of the substantial evidence of petitioners' connection
with the crime of rebellion. Besides, the latter alternative would require the reception of
evidence by this Court and thus duplicate the proceedings now taking place in the court of first
instance. What is more, since the evidence involved in the same proceedings would be
substantially the same and the presentation of such evidence cannot be made simultaneously,
each proceeding would tend to delay the other.

Mr. Justice Fernando is of the opinion in line with the view of Mr. Justice Tuason, in Nava v.
Gatmaitan, 28 to the effect that "... if and when formal complaint is presented, the court steps
in and the executive steps out. The detention ceases to be an executive and becomes a judicial
concern ..." that the filing of the above-mentioned complaint against the six (6) detained
petitioners herein, has the effect of the Executive giving up his authority to continue holding them
pursuant to Proclamation No. 889, as amended, even if he did not so intend, and to place them
fully under the authority of courts of justice, just like any other person, who, as such, cannot be
deprived of his liberty without lawful warrant, which has not, as yet, been issued against anyone of
them, and that, accordingly, We should order their immediate release. Despite the humanitarian
and libertarian spirit with which this view had been espoused, the other Members of the Court are
unable to accept it because:

(a) If the proclamation suspending the privilege of the writ of habeas corpus is valid and
We so hold it to be and the detainee is covered by the proclamation, the filing of a
complaint or information against him does not affect the suspension of said privilege, and,
consequently, his release may not be ordered by Us;

(b) Inasmuch as the filing of a formal complaint or information does not detract from the
validity and efficacy of the suspension of the privilege, it would be more reasonable to
construe the filing of said formal charges with the court of first instance as an expression of
the President's belief that there are sufficient evidence to convict the petitioners so charged
and that hey should not be released, therefore, unless and until said court after conducting
the corresponding preliminary examination and/or investigation shall find that the
prosecution has not established the existence of a probable cause. Otherwise, the Executive
would have released said accused, as were the other petitioners herein;

(c) From a long-range viewpoint, this interpretation of the act of the President in having
said formal charges filed is, We believe, more beneficial to the detainees than that favored
by Mr. Justice Fernando. His view particularly the theory that the detainees should be
released immediately, without bail, even before the completion of said preliminary
examination and/or investigation would tend to induce the Executive to refrain from filing
formal charges as long as it may be possible. Manifestly, We should encourage the early filing
of said charges, so that courts of justice could assume jurisdiction over the detainees and
extend to them effective protection.

Although some of the petitioners in these cases pray that the Court decide whether the
constitutional right to bail is affected by the suspension of the privilege of the writ of habeas
corpus, We do not deem it proper to pass upon such question, the same not having been
sufficiently discussed by the parties herein. Besides, there is no point in settling said question
with respect to petitioners herein who have been released. Neither is necessary to express
our view thereon, as regards those still detained, inasmuch as their release without bail might
still be decreed by the court of first instance, should it hold that there is no probable cause
against them. At any rate, should an actual issue on the right to bail arise later, the same may
be brought up in appropriate proceedings.

WHEREFORE, judgment is hereby rendered:

1. Declaring that the President did not act arbitrarily in issuing Proclamation No. 889, as
amended, and that, accordingly, the same is not unconstitutional;

2. Dismissing the petitions in L-33964, L-33965, L-33982, L-34004, L-34013, L-34039 and
L-34265, insofar as petitioners Teodosio Lansang, Bayani Alcala, Rogelio Arienda,
Vicentellao, Juan Carandang, Nemesio E. Prudente, Gerardo Tomas, Reynaldo Rimando,
Filomeno M. de Castro, Barcelisa C. de Castro and Antolin Oreta, Jr. are concerned;

3. The Court of First Instance of Rizal is hereby directed to act with utmost dispatch in
conducting the preliminary examination and/or investigation of the charges for violation of the
Anti-Subversion Act filed against herein petitioners Luzvimindo David, Victor Felipe, Gary
Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison, and to issue the
corresponding warrants of arrest, if probable cause is found to exist against them, or,
otherwise, to order their release; and

4. Should there be undue delay, for any reason whatsoever, either in the completion of the
aforementioned preliminary examination and/or investigation, or in the issuance of the proper
orders or resolution in connection therewith, the parties may by motion seek in these
proceedings the proper relief.

5. Without special pronouncement as to costs. It is so ordered.

Reyes, J.B.L., Makalintal, Zaldivar, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Separate Opinions

CASTRO and BARREDO, JJ., concurring:

While concurring fully in the opinion of the Court, we nevertheless write separately to answer,
from our own perspective, a point which Mr. Justice Fernando makes in his dissent. His view,
as we understand it, is that while an individual may be detained beyond the maximum
detention period fixed by law when the privilege of the writ ofhabeas corpus is suspended,
such individual is nevertheless entitled to be released from the very moment a formal
complaint is filed in court against him. The theory seems to be that from the time the charge is
filed, the court acquires, because the executive officials abdicate, jurisdiction.

This view is based on the separate opinion of Mr. Justice Pedro Tuason in Nava vs.
Gatmaitan. 1 Justice Tuason, in part, said:

All persons detained for investigation by the executive department are under executive control.
It is here where the Constitution tells the court to keep their hands off unless the cause of
the detention be for an offense other than rebellion or insurrection, which is another matter.

By the same token, if and when a formal complaint is presented, the court steps in and the
executive steps out. The detention ceases to be an executive and becomes a judicial
concern...

But the issue to which the Supreme Court Justices in Nava individually addressed themselves
is radically disparate from that raised in these cases. There the question was whether after
the detainees had been formally charged in court and an order for their arrest had been
issued, they were entitled to bail. It was on that question that the Court was split 5 to 4, and it
was the opinion of Justice Tuason, one of the five, that after the detainees had been accused
in court, the question of release on bail was a matter that the court should decide.
Upon the other hand, the question here presented is whether the detainees should be
released forthwith upon the filing of charges against them in court and cannot thereafter be
re-arrested except only by court order. This is a totally different question. It is our submission
that they are not entitled to be released. The dissent is, we believe, based on the fallacy that
when a formal charge is filed against a person he is thereby surrendered to the court and the
arresting officer is thereby divested of custody over him. Except in a metaphorical sense, the
detainee is not delivered or surrendered at all to the judicial authorities. What the phrase
"delivered to the court" simply means is that from the time a person is indicted in court, the
latter acquires jurisdiction over the subject-matter. 2The detainee remains in the custody of the
detaining officer, under the same authority invoked for the detention, until the court decides
whether there is probable cause to order his arrest.

Under ordinary circumstances, when a person is arrested without a warrant and is charged in
court, he is not released. He is held until the judicial authority orders either his release or his
confinement. It is no argument to say that under Article III, section 1 (3) of the Constitution
only a court can order the arrest of an individual. Arrests without warrant are familiar
occurrences, and they have been upheld as constitutional. 3

What is more, the privilege of the writ was suspended precisely to authorize the detention of
persons believed to be plotting against the security of the State until the courts can act on
their respective cases. To require their peremptory release upon the mere filing of charges
against them, without giving the proper court opportunity and time to decide the question of
probable cause, would obviously be to defeat the very basic purpose of the suspension. We
think our role as judges in the cases at bar is clear. After finding that the Presidential decree
was validly issued, we should give it effect. To uphold its validity and then try to dilute its
efficacy in the name of personal liberty is, we believe, actually to doubt the constitutionality of
the exercise of the Presidential prerogative.

Not only that. If the rule were that the detainees must be released upon the mere filing of
charges against them in court, it is unlikely that the executive officials would have filed the
charges because of their awareness of the continuing danger which in the first place impelled
the arrest of the detainees, and the end result would be to inflict on the latter a much longer
period of deprivation of personal liberty than is warranted.

Whatever our personal views may be of the power to suspend, the fact remains that the
power is there, writ large and indubitable in the Constitution. It is far too easy to write
anthologies on the side of civil liberties or on the side of governmental order, depending on
one's inclination or commitment. But that is not our function. Constitutional issues, it has been
said, do not take the form of right versus wrong, but of right versus right. And the Court's
function, as we see it, is, fundamentally to moderate the clash of values, and not to inflate
them into constitutional dimensions.

Where it is possible, we should avoid passing on a constitutional question. But where there is
no escape from the duty of abstention, our further duty is to decide the question of
constitutional validity on a less heroic plane.

And that is what we have tried to do in pointing out that the ordinary rules of criminal
procedure provide an adequate answer to Mr. Justice Fernando's problem. That solution is for
the arresting officer to hold the person detained until the court can act, with the only difference
that where the privilege of the writ of habeas corpus is available, the arresting officer must
release the detainee upon the expiration of the maximum detention time allowed by law, if he
has not delivered the detainee to the court within that period.
To insist on the procedural aspect of a constitutional problem as a manner of solving it is, after
all, no less to be libertarian. Insistence on it is, to us, and in point of fact, one of the
cornerstone of liberalism.

FERNANDO, J., concurring and dissenting:

The decision of the Court penned by the Chief Justice easily ranks with his many landmark
opinions in Constitutional Law and is in the tradition of the great judicial pronouncements from
this Tribunal. Skillful in its analysis, impressive as to its learning, comprehensive in its scope,
and compelling in its logic, it exerts considerable persuasive force. There is much in it
therefore to which concurrence is easily yielded. I find it difficult however to accept the
conclusion that the six petitioners still under detention should not be set free. It is for me a
source of deep regret that having gone quite far in manifesting the utmost sympathy for and
conformity with the claims of civil liberties, it did not go farther. Candor induces the admission
though that the situation realistically viewed may not justify going all the way. Nonetheless the
deeply-rooted conviction as to the undoubted primacy of constitutional rights, even under
circumstances the least propitious, precludes me from joining my brethren in that portion of
the decision reached. Nor should I let this opportunity pass without acknowledging the
fairness, even the generosity, in the appraisal of my position in the position of the Chief
Justice.

1. The function of judicial review fitly characterized as both delicate and awesome is never
more so than when the judiciary is called upon to pass on the validity of an act of the
President arising from the exercise of a power granted admittedly to cope with an emergency
or crisis situation. More specifically, with reference to the petitions before us, the question that
calls for prior consideration is whether the suspension of the privilege of the writ ofhabeas
corpus is tainted by constitutional infirmity. What the President did attested to an executive
determination of the existence of the conditions that warranted such a move. For one of the
mandatory provisions of the Bill of Rights 1 is that no such suspension is allowable, except in
cases of invasion, insurrection or rebellion, when the public safety requires, and, even, then, only
in such places and for such period of time as may be necessary. 2 There is the further provision
that the constitutional official so empowered to take such a step is the President. 3 The exceptional
character of the situation is thus underscored. The presumption would seem to be that if such a
step were taken, there must have been a conviction on the part of the Executive that he could not,
in the fulfillment of the responsibility entrusted to him, avoid doing so. That decision is his to make;
it is not for the judiciary. It is therefore encased in the armor of what must have been a careful
study on his part, in the light of relevant information which as Commander-in-Chief he is furnished,
ordinarily beyond the ken of the courts. When it is considered further that the Constitution does
admit that the sphere of individual freedom contracts and the scope of governmental authority
expands during times of emergency, it becomes manifest why an even greater degree of caution
and circumspection must be exercised by the judiciary when, on this matter, it is called upon to
discharge the function of judicial review.

2. Not that the judiciary has any choice on the matter. That view would indict itself for
unorthodoxy if it maintains that the existence of rebellion suffices to call for the disregard of
the applicable constitutional guarantees. Its implication would be that the Constitution ceases
to be operative in times of danger to national safety and security. Well has the American
Supreme Court in the leading case of Ex-parte Milligan 4 stated: "The Constitution is a law for
rulers and for 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." This ringing affirmation should at the very
least give pause to those troubled by the continuing respect that must be accorded civil liberties
under crisis conditions. The fact that the Constitution provides for only one situation where a
provision of the Bill of Rights may be suspended, emphasizes the holding in the above-cited
Milligan case that the framers of the Constitution "limited the suspension to one great right and left
the rest to remain forever inviolable." While perhaps at times likely to give rise to difficulties in the
disposition of cases during a troubled era where a suspension has been decreed, such a view is to
be taken into careful consideration.

3. For it is a truism that he Constitution is paramount, and the Supreme Court has no choice
but to apply its provisions in the determination of actual cases and controversies before it. Nor
is this all. The protection of the citizen and the maintenance of his constitutional rights is one
of the highest duties and privileges of the judiciary. 5The exercise thereof according to Justice
Laurel requires that it gives effect to the supreme law to the extent in clear cases of setting aside
legislative and executive action. 6 The supreme mandates of the Constitution are not to be loosely
brushed aside. 7 Otherwise, the Bill or Rights might be emasculated into mere expressions of
sentiment. 8 Speaking of this Court, Justice Abad Santos once pertinently observed: "This court
owes its own existence to that great instrument and derives all its powers therefrom. In the
exercise of its powers and jurisdiction, this court is bound by the provisions of the
Constitution."9 Justice Tuason would thus apply the constitutional rights with undeviating rigidity:
"To the plea that the security of the State would be jeopardized by the release of the defendants
on bail, the answer is that the existence of danger is never a justification for courts to tamper with
the fundamental rights expressly granted by the Constitution. These rights are immutable,
inflexible, yielding to no pressure of convenience, expediency, or the so-called 'judicial
statesmanship.' The Legislature itself can not infringe them, and no court conscious of its
responsibilities and limitations would do so. If the Bill of Rights are incompatible with stable
government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite to
say that, while the Constitution stands, the courts of justice as the repository of civil liberty are
bound to protect and maintain undiluted individual rights." 10

It is in that context, to my mind, that the petitions before us should be appraised, for in terms
of physical, as distinguished from intellectual, liberty, the privilege of the writ of habeas
corpus occupies a place second to none. As was stressed in Gumabon v. Director of
Prisons: 11 "Rightly then could Chafee refer to the writ 'as the most important human rights
provision' in the fundamental law." Care is to be taken then lest in the inquiry that must be
undertaken to determine whether the constitutional requisites justifying a suspension are present,
the effects thereof as to the other civil liberties are not fully taken into account. It affords no
justification to say that such a move was prompted by the best motives and loftiest of intentions.
Much less can there be acceptance of the view, as contended by one of the counsel for
respondents, that between the safety of the overwhelming majority of Filipinos and the claims of
the petitioners to liberty, the former must prevail. That is to indulge in the vice of over simplification.
Our fundamental postulate is that the state exists to assure individual rights, to protect which
governments are instituted deriving their just powers from the consent of the governed. "The
cardinal article of faith of our civilization," according to Frank further, "is the inviolable character of
the individual." 12

4. With all the admitted difficulty then that the function of judicial review presents in passing
upon the executive determination of suspending the privilege of the writ, there is still no way of
evading such a responsibility, except on the pain of judicial abdication. It may not admit of
doubt that on this matter this Court, unlike the President, cannot lay claim to the experience
and the requisite knowledge that would instill confidence in its decisions. That is no warrant
for an unquestioning and uncritical acceptance of what was done. It cannot simply fold its
hands and evince an attitude of unconcern. It has to decide the case. This it does by applying
the law to the facts as found, as it would in ordinary cases. If petitioners then can make out a
case of an unlawful deprivation of liberty, they are entitled to the writ prayed for. If the
suspension of the privilege be the justification, they could, as they did, challenge its validity.
To repeat, this Court, even if denied the fullness of information and the conceded grasp of the
Executive still must adjudicate the matter as best it can. It has to act not by virtue of its
competence but by the force of its commission a function authenticated by history. 13 That
would be to live up to its solemn trust, to paraphrase Cardozo, of preserving the great ideals of
liberty and equally against the erosion of possible encroachments, whether minute or
extensive. 14 Even if there be no showing then of constitutional infirmity, at least one other branch
of the government, that to which such an awesome duty had been conferred has had the
opportunity of reflecting on the matter with detachment, with objectivity, and with full awareness of
the commands of the Constitution as well as the realities of the situation.

5. Nor is the power of the judiciary to so inquire, negated as contended by respondents, by

reliance on the doctrine of political questions. The term has been made applicable to
controversies clearly non-judicial and therefore beyond its jurisdiction or to an issue involved
in a case appropriately subject to its cognizance, as to which there has been a prior legislative
or executive determination to which deference must be paid. 15 It has likewise been employed
loosely to characterize a suit where the party proceeded against is the President or Congress, or
any branch thereof. 16 If to be de-limited with accuracy, "political questions" should refer to such as
would under the Constitution be decided by the people in their sovereign capacity or in regard to
which full discretionary authority is vested either in the Presidency or Congress. It is thus beyond
the competence of the judiciary to pass upon. 17 Unless, clearly falling within the above formulation,
the decision reached by the political branches whether in the form of a congressional act or an
executive order could be tested in court. Where private rights are affected, the judiciary has no
choice but to look into its validity. It is not to be lost sight of that such a power comes into play if
there is an appropriate proceeding that may be filed only after either coordinate branch has acted.
Even when the Presidency or Congress possesses plenary power, its improvidence exercise or
the abuse thereof, if shown, may give rise to a justiciable controversy. 18 For the constitutional
grant of authority is not usually unrestricted. There are limits to what may be done and how it is to
be accomplished. Necessarily then, the courts in the proper exercise of judicial review could
inquire into the question of whether or not either of the two coordinate branches has adhered to
what is laid down by the Constitution. The question thus posed is judicial rather than political. So it
is in the matter before us so clearly explained in the opinion of the Chief Justice.

6. The doctrine announced in Montenegro v. Castaeda 19 that such a question is political has
thus been laid to rest. It is about time too. It owed its existence to the compulsion exerted by
Barcelon v. Baker, a 1905 decision. 20 This Court was partly misled by an undue reliance in the
latter case on what it considered to be authoritative pronouncements from such illustrious
American jurists as Marshall, Story, and Taney. That is to misread what was said by them. This is
most evidence in the case of Chief Justice Marshall, whose epochal Marbury v. Madison 21 was
cited. Why that was so is difficult to understand. For it speaks to the contrary. It was by virtue of
this decision that the function of judicial review owes its origin notwithstanding the absence of any
explicit provision in the American Constitution empowering the courts to do so. Thus: "It is
emphatically the province and duty of the judicial department to say what the law is. Those who
apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws
conflict with each other, the courts must decide on the operation of each. So if a law be in
opposition to the constitution: if both the law and the constitution apply to a particular case, so that
the court must either decide that case conformably to the law, disregarding the constitution; or
conformably to the constitution, disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty. If, the, the courts are
to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the
constitution, and not such ordinary act, must govern the case to which they both apply." 22

Nor is the excerpt from Justice Story, speaking for the United States Supreme Court, in Martin
v. Mott, 23 as made clear in the opinion of the Chief Justice, an authority directly in point. There, a
militiaman had been convicted of failing to respond to a call, made under the Act of 1795, to serve
during the War of 1812. His property was taken to satisfy the judgment. He brought an action of
replevin. The American Constitution empowers its Congress "to provide for calling forth the Militia"
in certain cases, and Congress did provide that in those cases the President should have authority
to make the call. All that Justice Story did in construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority of the American President to decide
whether the exigency has arisen. In stating that such power was exclusive and thus had a
conclusive effect, he relied on the language employed, impressed with such a character. The
constitutional provision on the suspension of the privilege of the writ is, as shown, anything but
that. 24 Chief Justice Taney, in Luther v. Borden, 25 likewise had to deal with a situation involving
the calling out of the militia. As a matter of fact, an eminent commentator speaking of the two
above decisions had this apt observation: "The common element in these opinions would seem to
be a genuine judicial reluctance to speak in a situation where the voice of the Court, even if heard,
could not have any effect. More than this, both Story and Taney seem to share the suspicion,
unusual in them, that under a popular form of government there are certain questions that the
political branches must be trusted to answer with finality."26 What was said next is even more
pertinent. Thus: "It would be dangerous and misleading to push the principles of these cases too
far, especially the doctrine of 'political questions' as implied in Luther v. Borden. Given the
opportunity to afford a grievously injured citizen relief from a palpably unwarranted use of
presidential or military power, especially when the question at issue falls in the penumbra between
the 'political' and the 'justiciable', the Court will act as if it had never heard of this doctrine and its
underlying assumption that there are some powers against which the judiciary simply cannot be
expected to act as the last line of defense." 27 It would thus seem evidence that support for the
hitherto prevailing Montenegro ruling was rather frail. Happily, with our decision, it is no longer
capable of the mischief to which it does lend itself of an undue diminution of judicial power to the
prejudice of constitutional rights.

7. With such presidential determination of the existence of the conditions required by the
Constitution to justify a suspension of the privilege of the writ no longer conclusive on the
other branches, this Court may thus legitimately inquire into its validity. The question before
us, it bears repeating, is whether or not Proclamation No. 889 as it now stands, not as it was
originally issued, is valid. The starting point must be a recognition that the power to suspend
the privilege of the writ belongs to the Executive, subject to limitations. So the Constitution
provides, and it is to be respected. The range of permissible inquiry to be conducted by this
Tribunal is necessarily limited then to the ascertainment of whether or not such a suspension,
in the light of the credible information furnished the President, was arbitrary. Such a test met
with the approval of the chief counsel for petitioners, Senator Jose W. Diokno. To paraphrase
Frankfurter, the question before the judiciary is not the correctness but the reasonableness of
the action taken. One who is not the Executive but equally knowledgeable may entertain a
different view, but the decision rests with the occupant of the office. As would be immediately
apparent even from a cursory perusal of the data furnished the President, so impressively
summarized in the opinion of the Chief Justice, the imputation of arbitrariness would be
difficult to sustain. Moreover, the steps taken by him to limit the area where the suspension
operates as well as his instructions attested to a firm resolve on his part to keep strictly within
the bounds of his authority. Under the circumstances, the decision reached by the Court that
no finding of unconstitutionality is warranted commends itself for approval. The most that can
be said is that there was a manifestation of presidential power well-nigh touching the extreme
border of his conceded competence, beyond which a forbidden domain lies. The requisite
showing of either improvidence or abuse has not been made.

8. Why the dissent then. My basic premise is that the suspension of the privilege of the writ
partakes of an executive action which if valid binds all who are within its operations. The
function of enacting a legal norm general in character appertains to either Congress or the
President. Its specific application to particular individuals, like petitioners here, is however a
task incumbent on the judiciary. What is more, as had just been explained, its validity maybe
tested in courts. Even if valid, any one may seek judicial determination as to whether he is
embraced within its terms. After our declaration of the validity of the Proclamation No. 889 as
amended, the next question is its applicability to petitioners. I am the first to recognize the
meticulous care with which the Chief Justice, after reaching the conclusion that petitioners are
covered by the suspension, saw to it that their constitutional rights are duly safeguarded in
whatever proceedings they would have thereafter to face. There is thus as assurance that as
far as human foresight can anticipate matters, the possibility of abuse is minimized.

The matter, for me, could be viewed independently of whether or not petitioners, by the
conduct imputed to them, could be detained further by virtue of the suspension of the privilege
of the writ. For admittedly, a supervening fact, the Executive's determination to have them
charged according to the ordinary procedural rules, did present itself. There was thus
introduced an element decisive in its consequences. They are entitled to treatment no
different from that accorded any other individual facing possible criminal charges. The opinion
of the Chief Justice is correct in pointing out that such an approach follows the dictum of
Justice Tuason, speaking for himself in Nava v. Gatmaitan, 28 where a majority of five, lacking
just one vote to enable this Court to reach a binding decision, did arrive at the conclusion that the
suspension of the privilege of the writ does not suspend the right to bail. Thus: "By the same token,
if and when formal complaint is presented, the court steps in and the executive steps out. The
detention ceases to be an executive and becomes a judicial concern. Thereupon the
corresponding court assumes its role and the judicial process takes its course to the exclusion of
the executive or the legislative departments. Hence forward, the accused is entitled to demand all
the constitutional safeguards and privileges essential to due process." 29 Parenthetically, it may be
observed that the above view reflects the stand taken by Justice Recto, fortified by Justice Laurel,
drawing heavily on continental juristic thought, both of whom, having retired from the bench and
thereafter having been elected to the Senate, were invited to appear as amici curiae in the Nava
case.

It would follow to my way of thinking then that the petitioners still detained ought not to be
further deprived of their liberty in the absence of a warrant of arrest for whatever offense they
may be held to answer, to be issued by a judge after a finding of probable cause. That is to
comply with the constitutional requirement against unreasonable search and
seizure. 30 Moreover, to keep them in confinement after the ordinary processes of the law are to
be availed of, as thereafter decreed by the Executive itself is to ignore the safeguard in the Bill of
Rights that no person shall be held to answer for a criminal offense without due process of
law. 31 That would explain why with full recognition of the sense of realism that infuses the opinion
of the Court, I cannot, from the above standpoint, reach the same conclusion they did. These six
petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo, David, Gary Olivar, Angelo de los
Reyes and Teresito Sison, have, for me, become immune from the operation of the proclamation
suspending the privilege of the writ ofhabeas corpus and are thus entitled to their liberty. I am
reinforced in my conviction by the well-settled principle of constitutional construction that if there
are two possible modes of interpretation, that one which raises the least constitutional doubt
should be preferred. Certainly, to my way of thinking, the choice is obvious. That interpretation
which would throw the full mantle of protection afforded by the Constitution to those unfortunate
enough to be caught in the meshes of criminal law is more in keeping with the high estate
accorded constitutional rights.

There is another consideration that strengthens my conviction on the matter. The language of
the Constitution would seem to imply at the most that the suspension of the privilege of the
writ renders it unavailable for the time being. Still there are authorities sustaining the view that
preventive detention subject to the test of good faith is allowable. 32 Such a doctrine is no doubt
partly traceable to Anglo-American legal history where as pointed out by Maine: "Substantive law
has at first the look of being gradually secreted in the interstices of procedure." 33 The writ
of habeas corpus then is more than just an efficacius device or the most speedy means of
obtaining one's liberty. It has become a most valuable substantive right. It would thus serve the
cause of constitutional rights better if the Tuason dictum as to the judicial process supplanting
executive rule the moment charges are filed be accorded acceptance. Thereby the number of
individuals who would have to submit to further detention, that may well turn out to be unjustified,
would be reduced. What is more, greater fidelity is manifested to the principle that liberty is the rule
and restraint the exception.

I am not of course insensible to the observation in the opinion of the Court that this concept
could be an obstacle to the early resumption of the ordinary judicial process as the Executive
might be minded to postpone resort to it, considering that there would necessarily be an end
to the detention at that early stage of individuals who continue to pose risk to the safety of the
government. It does occur to me, however, that the presumption should be that the high
executive dignitaries can be trusted to act in accordance with the dictates of good faith and
the command of the Constitution. At least, such seems to be the case now. The opinion of the
Court is quite explicit as to the measures taken to minimize the possibility of abuse from
officials in the lower category, who in their zeal or even from less worthy motives might make
a mockey of the other constitutional rights. That is as it should be. It should continue to be so
even if there be acceptance of the doctrine enunciated by Justice Tuason. There is, for me at
least, no undue cause for pessimism.

These is to my mind another reinforcement to this approach to the question before us,
perhaps one based more on policy rather than strictly legal considerations. The petitioners
who have not been released are youth leaders, who for motives best known to them, perhaps
excess of idealism, impatience with existing conditions, even overweening ambition, clamor
for change, apparently oblivious at times that it could be accomplished through means of
which the law does not disapprove. It would be premature at this stage to say whether or not
their activities have incurred for them a penal sanction, which certainly would be appropriate if
their conduct is beyond the pale. Even they should recognize that the existing order has the
right to defendant itself against those who would destroy it. Nonetheless as a constitutional
democracy can justifiably pride itself on its allegiance to ways of persuasion rather than
coercion, the most meticulous observance of the free way of life seems to me, even at this
stage, not without its beneficent influence on their future course of conduct. This is not by any
means to intimate that my brethren view matters differently. Far from it. Any difference if at all
in the positions taken is a question of emphasis. Rightly, the opinion of the Chief Justice
stresses the importance of the rule of law. It is to be hoped that with a proper understanding of
what has been decided by the Court today, there would be a diminution of the wholesale
condemnation of the present system of government by some sectors of the youth and
perhaps even lead to much-needed refinement in the volume and quality of their utterances. It
could even conceivably, not only for them but for others of a less radical cast of mind, but
equally suffering from disenchantment and disillusion, induce a reassessment and reappraisal
of their position, even if from all appearances their commitment and dedication are plain for all
to see. More than that, such a response will go a long way towards a keener appreciation of
the merits of a constitutional democracy. For thereby, it demonstrates that it lives up to its
ideas; it strives to act in accordance with what it professes. Its appeal for all sectors or society
becomes strengthened and vitalized. Nor do I close my eyes to the risk that such an attitude
towards those who constitute a source of danger entails. That for me is not conclusive. With
nations, as with ordinary mortals, that is unavoidable. Repose, in the often-quoted aphorism
of Holmes, is not the destiny of man.

9. One last observation. It would appear to me that if there is really a resolve to maintain
inviolate constitutional rights for all, more especially so for those inclined and disposed to
differ and to be vocal, perhaps even intemperate, in their criticism, that serious thought should
be given to the desirability of removing from the President his power to suspend the privilege
of the writ of habeas corpus as well as the power to declare martial law. Nor would the
government be lacking in authority to cope with the crisis of invasion, insurrection, or rebellion
or lawless violence, as the President as commander-in-chief can summon the aid of the
armed forces to meet the danger posed to public safety. If the privilege of the writ cannot be
suspended and martial law beyond the power of the President to declare, there is a greater
likelihood as far as the rights of the individual are concerned, of the Constitution remaining at
all times supreme, as it ought to be, whether it be in peace or in war or under other crisis
conditions. As long, however, as such a presidential prerogative exists, it would not be proper
for the courts not to accord recognition to its exercise, if there be observance of the limitations
imposed by the Constitution. At the most, they can only through construction nullify what
would amount to an unconstitutional application. How desirable it would be then, to my way of
thinking, if the Constitution would strip the President of such power. That would be
constitutionalism triumphant. In terms of Lincoln's memorable dilemma, the government
would be neither too strong for the liberties of the people nor too weak to maintain its
existence. This is a matter though appropriately addressed to the Constitutional Convention.

On the purely legal aspect, however, let me reiterate that my acceptance of the Tuason
dictum in the Nava case did result in my inability to concur fully with the opinion of the Chief
Justice, which, as pointed out at the outset, is possessed of a high degree of merit.

Separate Opinions

CASTRO and BARREDO, JJ., concurring:

While concurring fully in the opinion of the Court, we nevertheless write separately to answer,
from our own perspective, a point which Mr. Justice Fernando makes in his dissent. His view,
as we understand it, is that while an individual may be detained beyond the maximum
detention period fixed by law when the privilege of the writ ofhabeas corpus is suspended,
such individual is nevertheless entitled to be released from the very moment a formal
complaint is filed in court against him. The theory seems to be that from the time the charge is
filed, the court acquires, because the executive officials abdicate, jurisdiction.

This view is based on the separate opinion of Mr. Justice Pedro Tuason in Nava vs.
Gatmaitan. 1 Justice Tuason, in part, said:

All persons detained for investigation by the executive department are under executive control.
It is here where the Constitution tells the court to keep their hands off unless the cause of
the detention be for an offense other than rebellion or insurrection, which is another matter.

By the same token, if and when a formal complaint is presented, the court steps in and the
executive steps out. The detention ceases to be an executive and becomes a judicial
concern...

But the issue to which the Supreme Court Justices in Nava individually addressed themselves
is radically disparate from that raised in these cases. There the question was whether after
the detainees had been formally charged in court and an order for their arrest had been
issued, they were entitled to bail. It was on that question that the Court was split 5 to 4, and it
was the opinion of Justice Tuason, one of the five, that after the detainees had been accused
in court, the question of release on bail was a matter that the court should decide.
Upon the other hand, the question here presented is whether the detainees should be
released forthwith upon the filing of charges against them in court and cannot thereafter be
re-arrested except only by court order. This is a totally different question. It is our submission
that they are not entitled to be released. The dissent is, we believe, based on the fallacy that
when a formal charge is filed against a person he is thereby surrendered to the court and the
arresting officer is thereby divested of custody over him. Except in a metaphorical sense, the
detainee is not delivered or surrendered at all to the judicial authorities. What the phrase
"delivered to the court" simply means is that from the time a person is indicted in court, the
latter acquires jurisdiction over the subject-matter. 2The detainee remains in the custody of the
detaining officer, under the same authority invoked for the detention, until the court decides
whether there is probable cause to order his arrest.

Under ordinary circumstances, when a person is arrested without a warrant and is charged in
court, he is not released. He is held until the judicial authority orders either his release or his
confinement. It is no argument to say that under Article III, section 1 (3) of the Constitution
only a court can order the arrest of an individual. Arrests without warrant are familiar
occurrences, and they have been upheld as constitutional. 3

What is more, the privilege of the writ was suspended precisely to authorize the detention of
persons believed to be plotting against the security of the State until the courts can act on
their respective cases. To require their peremptory release upon the mere filing of charges
against them, without giving the proper court opportunity and time to decide the question of
probable cause, would obviously be to defeat the very basic purpose of the suspension. We
think our role as judges in the cases at bar is clear. After finding that the Presidential decree
was validly issued, we should give it effect. To uphold its validity and then try to dilute its
efficacy in the name of personal liberty is, we believe, actually to doubt the constitutionality of
the exercise of the Presidential prerogative.

Not only that. If the rule were that the detainees must be released upon the mere filing of
charges against them in court, it is unlikely that the executive officials would have filed the
charges because of their awareness of the continuing danger which in the first place impelled
the arrest of the detainees, and the end result would be to inflict on the latter a much longer
period of deprivation of personal liberty than is warranted.

Whatever our personal views may be of the power to suspend, the fact remains that the
power is there, writ large and indubitable in the Constitution. It is far too easy to write
anthologies on the side of civil liberties or on the side of governmental order, depending on
one's inclination or commitment. But that is not our function. Constitutional issues, it has been
said, do not take the form of right versus wrong, but of right versus right. And the Court's
function, as we see it, is, fundamentally to moderate the clash of values, and not to inflate
them into constitutional dimensions.

Where it is possible, we should avoid passing on a constitutional question. But where there is
no escape from the duty of abstention, our further duty is to decide the question of
constitutional validity on a less heroic plane.

And that is what we have tried to do in pointing out that the ordinary rules of criminal
procedure provide an adequate answer to Mr. Justice Fernando's problem. That solution is for
the arresting officer to hold the person detained until the court can act, with the only difference
that where the privilege of the writ of habeas corpus is available, the arresting officer must
release the detainee upon the expiration of the maximum detention time allowed by law, if he
has not delivered the detainee to the court within that period.
To insist on the procedural aspect of a constitutional problem as a manner of solving it is, after
all, no less to be libertarian. Insistence on it is, to us, and in point of fact, one of the
cornerstone of liberalism.

FERNANDO, J., concurring and dissenting:

The decision of the Court penned by the Chief Justice easily ranks with his many landmark
opinions in Constitutional Law and is in the tradition of the great judicial pronouncements from
this Tribunal. Skillful in its analysis, impressive as to its learning, comprehensive in its scope,
and compelling in its logic, it exerts considerable persuasive force. There is much in it
therefore to which concurrence is easily yielded. I find it difficult however to accept the
conclusion that the six petitioners still under detention should not be set free. It is for me a
source of deep regret that having gone quite far in manifesting the utmost sympathy for and
conformity with the claims of civil liberties, it did not go farther. Candor induces the admission
though that the situation realistically viewed may not justify going all the way. Nonetheless the
deeply-rooted conviction as to the undoubted primacy of constitutional rights, even under
circumstances the least propitious, precludes me from joining my brethren in that portion of
the decision reached. Nor should I let this opportunity pass without acknowledging the
fairness, even the generosity, in the appraisal of my position in the position of the Chief
Justice.

1. The function of judicial review fitly characterized as both delicate and awesome is never
more so than when the judiciary is called upon to pass on the validity of an act of the
President arising from the exercise of a power granted admittedly to cope with an emergency
or crisis situation. More specifically, with reference to the petitions before us, the question that
calls for prior consideration is whether the suspension of the privilege of the writ ofhabeas
corpus is tainted by constitutional infirmity. What the President did attested to an executive
determination of the existence of the conditions that warranted such a move. For one of the
mandatory provisions of the Bill of Rights 1 is that no such suspension is allowable, except in
cases of invasion, insurrection or rebellion, when the public safety requires, and, even, then, only
in such places and for such period of time as may be necessary. 2 There is the further provision
that the constitutional official so empowered to take such a step is the President. 3 The exceptional
character of the situation is thus underscored. The presumption would seem to be that if such a
step were taken, there must have been a conviction on the part of the Executive that he could not,
in the fulfillment of the responsibility entrusted to him, avoid doing so. That decision is his to make;
it is not for the judiciary. It is therefore encased in the armor of what must have been a careful
study on his part, in the light of relevant information which as Commander-in-Chief he is furnished,
ordinarily beyond the ken of the courts. When it is considered further that the Constitution does
admit that the sphere of individual freedom contracts and the scope of governmental authority
expands during times of emergency, it becomes manifest why an even greater degree of caution
and circumspection must be exercised by the judiciary when, on this matter, it is called upon to
discharge the function of judicial review.

2. Not that the judiciary has any choice on the matter. That view would indict itself for
unorthodoxy if it maintains that the existence of rebellion suffices to call for the disregard of
the applicable constitutional guarantees. Its implication would be that the Constitution ceases
to be operative in times of danger to national safety and security. Well has the American
Supreme Court in the leading case of Ex-parte Milligan 4 stated: "The Constitution is a law for
rulers and for 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." This ringing affirmation should at the very
least give pause to those troubled by the continuing respect that must be accorded civil liberties
under crisis conditions. The fact that the Constitution provides for only one situation where a
provision of the Bill of Rights may be suspended, emphasizes the holding in the above-cited
Milligan case that the framers of the Constitution "limited the suspension to one great right and left
the rest to remain forever inviolable." While perhaps at times likely to give rise to difficulties in the
disposition of cases during a troubled era where a suspension has been decreed, such a view is to
be taken into careful consideration.

3. For it is a truism that he Constitution is paramount, and the Supreme Court has no choice
but to apply its provisions in the determination of actual cases and controversies before it. Nor
is this all. The protection of the citizen and the maintenance of his constitutional rights is one
of the highest duties and privileges of the judiciary. 5The exercise thereof according to Justice
Laurel requires that it gives effect to the supreme law to the extent in clear cases of setting aside
legislative and executive action. 6 The supreme mandates of the Constitution are not to be loosely
brushed aside. 7 Otherwise, the Bill or Rights might be emasculated into mere expressions of
sentiment. 8 Speaking of this Court, Justice Abad Santos once pertinently observed: "This court
owes its own existence to that great instrument and derives all its powers therefrom. In the
exercise of its powers and jurisdiction, this court is bound by the provisions of the
Constitution."9 Justice Tuason would thus apply the constitutional rights with undeviating rigidity:
"To the plea that the security of the State would be jeopardized by the release of the defendants
on bail, the answer is that the existence of danger is never a justification for courts to tamper with
the fundamental rights expressly granted by the Constitution. These rights are immutable,
inflexible, yielding to no pressure of convenience, expediency, or the so-called 'judicial
statesmanship.' The Legislature itself can not infringe them, and no court conscious of its
responsibilities and limitations would do so. If the Bill of Rights are incompatible with stable
government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite to
say that, while the Constitution stands, the courts of justice as the repository of civil liberty are
bound to protect and maintain undiluted individual rights." 10

It is in that context, to my mind, that the petitions before us should be appraised, for in terms
of physical, as distinguished from intellectual, liberty, the privilege of the writ of habeas
corpus occupies a place second to none. As was stressed in Gumabon v. Director of
Prisons: 11 "Rightly then could Chafee refer to the writ 'as the most important human rights
provision' in the fundamental law." Care is to be taken then lest in the inquiry that must be
undertaken to determine whether the constitutional requisites justifying a suspension are present,
the effects thereof as to the other civil liberties are not fully taken into account. It affords no
justification to say that such a move was prompted by the best motives and loftiest of intentions.
Much less can there be acceptance of the view, as contended by one of the counsel for
respondents, that between the safety of the overwhelming majority of Filipinos and the claims of
the petitioners to liberty, the former must prevail. That is to indulge in the vice of over simplification.
Our fundamental postulate is that the state exists to assure individual rights, to protect which
governments are instituted deriving their just powers from the consent of the governed. "The
cardinal article of faith of our civilization," according to Frank further, "is the inviolable character of
the individual." 12

4. With all the admitted difficulty then that the function of judicial review presents in passing
upon the executive determination of suspending the privilege of the writ, there is still no way of
evading such a responsibility, except on the pain of judicial abdication. It may not admit of
doubt that on this matter this Court, unlike the President, cannot lay claim to the experience
and the requisite knowledge that would instill confidence in its decisions. That is no warrant
for an unquestioning and uncritical acceptance of what was done. It cannot simply fold its
hands and evince an attitude of unconcern. It has to decide the case. This it does by applying
the law to the facts as found, as it would in ordinary cases. If petitioners then can make out a
case of an unlawful deprivation of liberty, they are entitled to the writ prayed for. If the
suspension of the privilege be the justification, they could, as they did, challenge its validity.
To repeat, this Court, even if denied the fullness of information and the conceded grasp of the
Executive still must adjudicate the matter as best it can. It has to act not by virtue of its
competence but by the force of its commission a function authenticated by history. 13 That
would be to live up to its solemn trust, to paraphrase Cardozo, of preserving the great ideals of
liberty and equally against the erosion of possible encroachments, whether minute or
extensive. 14 Even if there be no showing then of constitutional infirmity, at least one other branch
of the government, that to which such an awesome duty had been conferred has had the
opportunity of reflecting on the matter with detachment, with objectivity, and with full awareness of
the commands of the Constitution as well as the realities of the situation.

5. Nor is the power of the judiciary to so inquire, negated as contended by respondents, by

reliance on the doctrine of political questions. The term has been made applicable to
controversies clearly non-judicial and therefore beyond its jurisdiction or to an issue involved
in a case appropriately subject to its cognizance, as to which there has been a prior legislative
or executive determination to which deference must be paid. 15 It has likewise been employed
loosely to characterize a suit where the party proceeded against is the President or Congress, or
any branch thereof. 16 If to be de-limited with accuracy, "political questions" should refer to such as
would under the Constitution be decided by the people in their sovereign capacity or in regard to
which full discretionary authority is vested either in the Presidency or Congress. It is thus beyond
the competence of the judiciary to pass upon. 17 Unless, clearly falling within the above formulation,
the decision reached by the political branches whether in the form of a congressional act or an
executive order could be tested in court. Where private rights are affected, the judiciary has no
choice but to look into its validity. It is not to be lost sight of that such a power comes into play if
there is an appropriate proceeding that may be filed only after either coordinate branch has acted.
Even when the Presidency or Congress possesses plenary power, its improvidence exercise or
the abuse thereof, if shown, may give rise to a justiciable controversy. 18 For the constitutional
grant of authority is not usually unrestricted. There are limits to what may be done and how it is to
be accomplished. Necessarily then, the courts in the proper exercise of judicial review could
inquire into the question of whether or not either of the two coordinate branches has adhered to
what is laid down by the Constitution. The question thus posed is judicial rather than political. So it
is in the matter before us so clearly explained in the opinion of the Chief Justice.

6. The doctrine announced in Montenegro v. Castaeda 19 that such a question is political has
thus been laid to rest. It is about time too. It owed its existence to the compulsion exerted by
Barcelon v. Baker, a 1905 decision. 20 This Court was partly misled by an undue reliance in the
latter case on what it considered to be authoritative pronouncements from such illustrious
American jurists as Marshall, Story, and Taney. That is to misread what was said by them. This is
most evidence in the case of Chief Justice Marshall, whose epochal Marbury v. Madison 21 was
cited. Why that was so is difficult to understand. For it speaks to the contrary. It was by virtue of
this decision that the function of judicial review owes its origin notwithstanding the absence of any
explicit provision in the American Constitution empowering the courts to do so. Thus: "It is
emphatically the province and duty of the judicial department to say what the law is. Those who
apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws
conflict with each other, the courts must decide on the operation of each. So if a law be in
opposition to the constitution: if both the law and the constitution apply to a particular case, so that
the court must either decide that case conformably to the law, disregarding the constitution; or
conformably to the constitution, disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty. If, the, the courts are
to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the
constitution, and not such ordinary act, must govern the case to which they both apply." 22

Nor is the excerpt from Justice Story, speaking for the United States Supreme Court, in Martin
v. Mott, 23 as made clear in the opinion of the Chief Justice, an authority directly in point. There, a
militiaman had been convicted of failing to respond to a call, made under the Act of 1795, to serve
during the War of 1812. His property was taken to satisfy the judgment. He brought an action of
replevin. The American Constitution empowers its Congress "to provide for calling forth the Militia"
in certain cases, and Congress did provide that in those cases the President should have authority
to make the call. All that Justice Story did in construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority of the American President to decide
whether the exigency has arisen. In stating that such power was exclusive and thus had a
conclusive effect, he relied on the language employed, impressed with such a character. The
constitutional provision on the suspension of the privilege of the writ is, as shown, anything but
that. 24 Chief Justice Taney, in Luther v. Borden, 25 likewise had to deal with a situation involving
the calling out of the militia. As a matter of fact, an eminent commentator speaking of the two
above decisions had this apt observation: "The common element in these opinions would seem to
be a genuine judicial reluctance to speak in a situation where the voice of the Court, even if heard,
could not have any effect. More than this, both Story and Taney seem to share the suspicion,
unusual in them, that under a popular form of government there are certain questions that the
political branches must be trusted to answer with finality."26 What was said next is even more
pertinent. Thus: "It would be dangerous and misleading to push the principles of these cases too
far, especially the doctrine of 'political questions' as implied in Luther v. Borden. Given the
opportunity to afford a grievously injured citizen relief from a palpably unwarranted use of
presidential or military power, especially when the question at issue falls in the penumbra between
the 'political' and the 'justiciable', the Court will act as if it had never heard of this doctrine and its
underlying assumption that there are some powers against which the judiciary simply cannot be
expected to act as the last line of defense." 27 It would thus seem evidence that support for the
hitherto prevailing Montenegro ruling was rather frail. Happily, with our decision, it is no longer
capable of the mischief to which it does lend itself of an undue diminution of judicial power to the
prejudice of constitutional rights.

7. With such presidential determination of the existence of the conditions required by the
Constitution to justify a suspension of the privilege of the writ no longer conclusive on the
other branches, this Court may thus legitimately inquire into its validity. The question before
us, it bears repeating, is whether or not Proclamation No. 889 as it now stands, not as it was
originally issued, is valid. The starting point must be a recognition that the power to suspend
the privilege of the writ belongs to the Executive, subject to limitations. So the Constitution
provides, and it is to be respected. The range of permissible inquiry to be conducted by this
Tribunal is necessarily limited then to the ascertainment of whether or not such a suspension,
in the light of the credible information furnished the President, was arbitrary. Such a test met
with the approval of the chief counsel for petitioners, Senator Jose W. Diokno. To paraphrase
Frankfurter, the question before the judiciary is not the correctness but the reasonableness of
the action taken. One who is not the Executive but equally knowledgeable may entertain a
different view, but the decision rests with the occupant of the office. As would be immediately
apparent even from a cursory perusal of the data furnished the President, so impressively
summarized in the opinion of the Chief Justice, the imputation of arbitrariness would be
difficult to sustain. Moreover, the steps taken by him to limit the area where the suspension
operates as well as his instructions attested to a firm resolve on his part to keep strictly within
the bounds of his authority. Under the circumstances, the decision reached by the Court that
no finding of unconstitutionality is warranted commends itself for approval. The most that can
be said is that there was a manifestation of presidential power well-nigh touching the extreme
border of his conceded competence, beyond which a forbidden domain lies. The requisite
showing of either improvidence or abuse has not been made.

8. Why the dissent then. My basic premise is that the suspension of the privilege of the writ
partakes of an executive action which if valid binds all who are within its operations. The
function of enacting a legal norm general in character appertains to either Congress or the
President. Its specific application to particular individuals, like petitioners here, is however a
task incumbent on the judiciary. What is more, as had just been explained, its validity maybe
tested in courts. Even if valid, any one may seek judicial determination as to whether he is
embraced within its terms. After our declaration of the validity of the Proclamation No. 889 as
amended, the next question is its applicability to petitioners. I am the first to recognize the
meticulous care with which the Chief Justice, after reaching the conclusion that petitioners are
covered by the suspension, saw to it that their constitutional rights are duly safeguarded in
whatever proceedings they would have thereafter to face. There is thus as assurance that as
far as human foresight can anticipate matters, the possibility of abuse is minimized.

The matter, for me, could be viewed independently of whether or not petitioners, by the
conduct imputed to them, could be detained further by virtue of the suspension of the privilege
of the writ. For admittedly, a supervening fact, the Executive's determination to have them
charged according to the ordinary procedural rules, did present itself. There was thus
introduced an element decisive in its consequences. They are entitled to treatment no
different from that accorded any other individual facing possible criminal charges. The opinion
of the Chief Justice is correct in pointing out that such an approach follows the dictum of
Justice Tuason, speaking for himself in Nava v. Gatmaitan, 28 where a majority of five, lacking
just one vote to enable this Court to reach a binding decision, did arrive at the conclusion that the
suspension of the privilege of the writ does not suspend the right to bail. Thus: "By the same token,
if and when formal complaint is presented, the court steps in and the executive steps out. The
detention ceases to be an executive and becomes a judicial concern. Thereupon the
corresponding court assumes its role and the judicial process takes its course to the exclusion of
the executive or the legislative departments. Hence forward, the accused is entitled to demand all
the constitutional safeguards and privileges essential to due process." 29 Parenthetically, it may be
observed that the above view reflects the stand taken by Justice Recto, fortified by Justice Laurel,
drawing heavily on continental juristic thought, both of whom, having retired from the bench and
thereafter having been elected to the Senate, were invited to appear as amici curiae in the Nava
case.

It would follow to my way of thinking then that the petitioners still detained ought not to be
further deprived of their liberty in the absence of a warrant of arrest for whatever offense they
may be held to answer, to be issued by a judge after a finding of probable cause. That is to
comply with the constitutional requirement against unreasonable search and
seizure. 30 Moreover, to keep them in confinement after the ordinary processes of the law are to
be availed of, as thereafter decreed by the Executive itself is to ignore the safeguard in the Bill of
Rights that no person shall be held to answer for a criminal offense without due process of
law. 31 That would explain why with full recognition of the sense of realism that infuses the opinion
of the Court, I cannot, from the above standpoint, reach the same conclusion they did. These six
petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo, David, Gary Olivar, Angelo de los
Reyes and Teresito Sison, have, for me, become immune from the operation of the proclamation
suspending the privilege of the writ ofhabeas corpus and are thus entitled to their liberty. I am
reinforced in my conviction by the well-settled principle of constitutional construction that if there
are two possible modes of interpretation, that one which raises the least constitutional doubt
should be preferred. Certainly, to my way of thinking, the choice is obvious. That interpretation
which would throw the full mantle of protection afforded by the Constitution to those unfortunate
enough to be caught in the meshes of criminal law is more in keeping with the high estate
accorded constitutional rights.

There is another consideration that strengthens my conviction on the matter. The language of
the Constitution would seem to imply at the most that the suspension of the privilege of the
writ renders it unavailable for the time being. Still there are authorities sustaining the view that
preventive detention subject to the test of good faith is allowable. 32 Such a doctrine is no doubt
partly traceable to Anglo-American legal history where as pointed out by Maine: "Substantive law
has at first the look of being gradually secreted in the interstices of procedure." 33 The writ
of habeas corpus then is more than just an efficacius device or the most speedy means of
obtaining one's liberty. It has become a most valuable substantive right. It would thus serve the
cause of constitutional rights better if the Tuason dictum as to the judicial process supplanting
executive rule the moment charges are filed be accorded acceptance. Thereby the number of
individuals who would have to submit to further detention, that may well turn out to be unjustified,
would be reduced. What is more, greater fidelity is manifested to the principle that liberty is the rule
and restraint the exception.

I am not of course insensible to the observation in the opinion of the Court that this concept
could be an obstacle to the early resumption of the ordinary judicial process as the Executive
might be minded to postpone resort to it, considering that there would necessarily be an end
to the detention at that early stage of individuals who continue to pose risk to the safety of the
government. It does occur to me, however, that the presumption should be that the high
executive dignitaries can be trusted to act in accordance with the dictates of good faith and
the command of the Constitution. At least, such seems to be the case now. The opinion of the
Court is quite explicit as to the measures taken to minimize the possibility of abuse from
officials in the lower category, who in their zeal or even from less worthy motives might make
a mockey of the other constitutional rights. That is as it should be. It should continue to be so
even if there be acceptance of the doctrine enunciated by Justice Tuason. There is, for me at
least, no undue cause for pessimism.

These is to my mind another reinforcement to this approach to the question before us,
perhaps one based more on policy rather than strictly legal considerations. The petitioners
who have not been released are youth leaders, who for motives best known to them, perhaps
excess of idealism, impatience with existing conditions, even overweening ambition, clamor
for change, apparently oblivious at times that it could be accomplished through means of
which the law does not disapprove. It would be premature at this stage to say whether or not
their activities have incurred for them a penal sanction, which certainly would be appropriate if
their conduct is beyond the pale. Even they should recognize that the existing order has the
right to defendant itself against those who would destroy it. Nonetheless as a constitutional
democracy can justifiably pride itself on its allegiance to ways of persuasion rather than
coercion, the most meticulous observance of the free way of life seems to me, even at this
stage, not without its beneficent influence on their future course of conduct. This is not by any
means to intimate that my brethren view matters differently. Far from it. Any difference if at all
in the positions taken is a question of emphasis. Rightly, the opinion of the Chief Justice
stresses the importance of the rule of law. It is to be hoped that with a proper understanding of
what has been decided by the Court today, there would be a diminution of the wholesale
condemnation of the present system of government by some sectors of the youth and
perhaps even lead to much-needed refinement in the volume and quality of their utterances. It
could even conceivably, not only for them but for others of a less radical cast of mind, but
equally suffering from disenchantment and disillusion, induce a reassessment and reappraisal
of their position, even if from all appearances their commitment and dedication are plain for all
to see. More than that, such a response will go a long way towards a keener appreciation of
the merits of a constitutional democracy. For thereby, it demonstrates that it lives up to its
ideas; it strives to act in accordance with what it professes. Its appeal for all sectors or society
becomes strengthened and vitalized. Nor do I close my eyes to the risk that such an attitude
towards those who constitute a source of danger entails. That for me is not conclusive. With
nations, as with ordinary mortals, that is unavoidable. Repose, in the often-quoted aphorism
of Holmes, is not the destiny of man.

9. One last observation. It would appear to me that if there is really a resolve to maintain
inviolate constitutional rights for all, more especially so for those inclined and disposed to
differ and to be vocal, perhaps even intemperate, in their criticism, that serious thought should
be given to the desirability of removing from the President his power to suspend the privilege
of the writ of habeas corpus as well as the power to declare martial law. Nor would the
government be lacking in authority to cope with the crisis of invasion, insurrection, or rebellion
or lawless violence, as the President as commander-in-chief can summon the aid of the
armed forces to meet the danger posed to public safety. If the privilege of the writ cannot be
suspended and martial law beyond the power of the President to declare, there is a greater
likelihood as far as the rights of the individual are concerned, of the Constitution remaining at
all times supreme, as it ought to be, whether it be in peace or in war or under other crisis
conditions. As long, however, as such a presidential prerogative exists, it would not be proper
for the courts not to accord recognition to its exercise, if there be observance of the limitations
imposed by the Constitution. At the most, they can only through construction nullify what
would amount to an unconstitutional application. How desirable it would be then, to my way of
thinking, if the Constitution would strip the President of such power. That would be
constitutionalism triumphant. In terms of Lincoln's memorable dilemma, the government
would be neither too strong for the liberties of the people nor too weak to maintain its
existence. This is a matter though appropriately addressed to the Constitutional Convention.

On the purely legal aspect, however, let me reiterate that my acceptance of the Tuason
dictum in the Nava case did result in my inability to concur fully with the opinion of the Chief
Justice, which, as pointed out at the outset, is possessed of a high degree of merit.

Footnotes

1 Words in bracket ([1]) are those appearing in the original Proclamation No. 889, but which
were eliminated in the amended Proclamation No. 889-A; words emphasized (emphasis)
have been amended by Proclamation No. 889-A.

2 Phil. 87.

3 91 Phil. 882, 887.

* Should be L-33964, L-33965 and L-33973.

** Should be L-33964.

4 As stated in the proclamation involved in Montenegro v. Castaeda, 91 Phil. 882.

5 5 Phil. 87.

6 91 Phil. 882.

7 6 L. ed. 537.

8 In re Boyle, 57 Pac 706; Moyer v. Peabody 212 US 78; Ex Parte Field, 5 Blatchf. 63, cited in
USCA Const. Part. 1, p. 463; Luther v. Borden, 7 How 1, 12 L. ed. 581; In re Kalanianaole, 10
Hawaii 29, cited in California Law Review, May, 1942, fn. 40, pp. 382-383; Ex
parte MacDonald, 143 Pac 947.

9 In re Burrus, 136 US 500; Sterling v. Constantin, 287 US 375; Patten v. Miller, 8 S.E. (2d)
757; Miller v. Rivera, 31 F. Supp. 540; Hearon v. Calus, 183 S.E. 13; In re Green, 16 Pac (2d)
582; Allen v. Oklahoma City, 52 Pac (2d) 1054; Joyner v. Browning, 30 F. Supp. 512; U.S. v.
Phillips, 33 F. Supp. 261.

10 Mitchell v. Harmony, 14 L. ed. 75, 84. See also, U.S. v. Russell, 20 L. ed. 474, 475.
11 287 U.S. 375, 385.

12 Northern P.R. Co. v. North Dakota, 236 U.S. 585; Merchants' Nat. Bank v. Richmond, 256
U.S. 635; First Nat. Bank v. Hartford, 273 U.S. 548; Fiske v. Kansas, 274 U.S. 380.

13 Which were, seemingly, taken from the seventh paragraph of Section 3, and Section 21 of
the Jones Law (Act of Congress of the U.S. of August 29, 1916). The only provision thereon in
the U.S. Constitution is found in Section 9(2) of Art. 1 thereof on the Legislative Power
which provides that "the privilege of the writ of habeas corpus shall not be suspended, unless
in cases of rebellion or invasion the public safety may require it."

14 People v. Evangelista, 57 Phil. 375; People v. Evangelista, et al., 57 Phil. 354; People v.
Capadocia, 57 Phil. 364; People v. Feleo, 57 Phil. 451; People v. Nabong, 57 Phil. 455.

15 91 Phil. 882. See also, Nava v. Gatmaitan, Hernandez v. Montesa, and Angeles v. Abaya,
90 Phil. 172.

16 People v. Nava, L-4907, June 29, 1963; In re Jesus Lava v. Gonzales, L-23048, July 31,
1964; People vs. Nava, L-5796, August 29, 1966; People v. Lava, L-4974, May 16, 1969.

17 Emphasis ours.

18 See page 22 thereof.

19 Emphasis supplied.

20 "ART. 134. Rebellion or insurrection. How committed. The crime of rebellion or

insurrection is committed by rising publicly and taking arms against the Government for the
purpose of removing from the allegiance to said Government or its laws, the territory of the
Philippine Islands or any part thereof, of any body of land, naval or other armed forces, or of
depriving the Chief Executive or the Legislative, wholly or partially, of any of their powers or
prerogatives."

21 57 Pac. 706.

22 Schwartz, An Introduction to American Administrative Law, 2nd ed., 190-191.

23 Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197.

24 291 U.S. 502.

25 Although not by some conclusions therein made.

26 Said paragraph reads:

"That all the above named accused, as such officers and/or ranking leaders of the Communist
Party of the Philippines conspiring, confederating and mutually helping one another, did then
and there knowingly, wilfully, feloniously and by over acts committed subversive acts all
intended to overthrow the government of the Republic of the Philippines, or the government of
any of its political subdivisions by force, violence, deceit, subversive or other illegal means, for
the purpose of placing such government or political subdivision under the control and
domination of any alien power, as follows:"

xxx xxx xxx

27 On November 15, 1971.

28 90 Phil. 172, 204. Emphasis ours. Justice Tuason was speaking for himself only, not for
the Court, which was divided.

CASTRO AND BARREDO, JJ., concurring:

1 90 Phil. 172, 204 (1951).

2 Sayo vs. Chief of Police, 80 Phil. 859 (1948).

3 E.g., People vs. Kagui Malasugui, 63 Phil. 231 (1936).

FERNANDO, J., concurring and dissenting:

1 Art. III, Constitution.

2 According to the Constitution: "The privilege of the writ of habeas corpus shall not be
suspended except in cases of invasion, insurrection, or rebellion, when the public safety
requires it, in any of which events the same may be suspended wherever during such period
the necessity for such suspension shall exist." Art. III, Sec. 1, par. (14).

3 On this point, the Constitution reads: "In case of invasion, insurrection, or rebellion, or
imminent danger thereof, when the public safety requires it, he may suspend the privileges of
the writ ofhabeas corpus or place the Philippines or any part thereof under martial law." Art.
VII, Sec. 10, par. (2).What is immediately noticeable is that the existence of an imminent
danger of invasion, insurrection, or rebellion was included in the justification for the
suspension.

4 4 Wall. 123 (1866).

5 Alvarez v. Court, 64 Phil. 33 (1937).

6 People v. Vera, 65 Phil. 56, 94-95 (1937).

7 Pampanga Bus Co. v. Pambusco Employees Union, 68 Phil. 541 (1939).

8 Angara v. Electoral Tribunal, 63 Phil. 139, 157 (1936).

9 Schneckburger v. Moran, 63 Phil. 249, 251-252 (1936).

10 90 Phil. 172, at p. 209 (1951).

11 L-30026, January 30, 1971, 37 SCRA 420, 423.

12 American Communications Asso. v. Douds, 339 US 382, 421 (1951).

13 Cf. West Virginia State Board of Education v. Barnette, 319 US 624 (1943).

14 Cardozo, The Nature of Judicial Process, 92-93 (1921).

15 Cf. Vera v. Avelino, 77 Phil. 192 (1946); Lopez v. Roxas, L-25716, July 28, 1966, 17 SCRA
756; Gonzales v. Commission on Elections, L-28196, No. 9, 1967, 21 SCRA 774.

16 Cf. Planas v. Gil, 67 Phil. 62 (1937); Vera v. Avelino, 77 Phil. 192 (1946).

17 Cf. Taada v. Cuenco, 103 Phil. 1051 (1957).

18 Cf. Morrero v. Bocar, 66 Phil. 429 (1938); Rodriguez v. Quirino, L-19800, October 28, 1963,
9 SCRA 284.

19 91 Phil. 882 (1952).

20 5 Phil. 87.

21 1 Cranch 137 (1803).

22 Ibid., pp. 177-178.

23 12 Wheaton 19 (1827).

24 Cf. Fairman, The Law of Martial Rule and the National Emergency, 55 harvard Law
Review, 1253, 1270-1271 (1942).

25 7 Howard 1 (1849).

26 Rossiter, The Supreme Court and the Commander in Chief, pp. 16-17 (1951).

27 Ibid., p. 17.

28 90 Phil. 172 (1951).

29 Ibid., p. 204.

30 According to Article III, Section 1, paragraph 3 of the Constitution: "The right of the people
to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be searched, and the
persons or things to be seized."

31 Article III, section 1, paragraph 15, Constitution.

32 Cf. Ex parte Milligan, 4 Wallace 2 (1866); Moyer v. Peabody, 212 US 78 (1909); Ex
parteSimmerman, 132 F2 442(1942). That was likewise acknowledged in the opinion of
Justice Tuason in the Nava case.

33 Cf. Chafee, Free Speech in the United States, p. 63 (1941). Holmes and Maitland
entertained a similar view.
 Republic of the Philippines
SUPREME COURT
Baguio City

THIRD DIVISION

G.R. No. 176114 April 8, 2015

GRACE SAN DIEGO y TRINIDAD, Petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

For resolution of this Court is the Petition for Review, dated January 23, 2007, of petitioner
Grace San Diego which seeks to reverse arid set aside the Decision1 and Resolution,2 dated
March 6, 2006 and December 14, 2006, respectively, of the Court of Appeals (CA) affirming
with modification the Decision3 dated August 20, 2001 of the Regional Trial Court (RTC) of
Malolos, Bulacan, Branch 1 7, finding her guilty beyond reasonable doubt of the crime of
qualified theft.

The following are the antecedent facts as found in the records.

Petitioner Grace San Diego had been the accountant of Obando Fisherman's Multi-Purpose
Cooperative, Inc. (OFMPCI) from January 1993 to March 11, 1997. Petitioner was in charge
of accounting all business transactions of the cooperative and performed the functions of
cashier and teller, granted loans and did check discounting and trading. She also recorded
and reported the cash in bank transactions and summarized the bank transactions for the day
and was also entrusted with a set of blank checks pre-signed and was authorized to fill up the
checks, particularly the date, the amount in words and in figures, and the payee.

That from November 18, 1996 to January 6, 1997, petitioner acted as cashier when Teresita
Gonzales was on maternity leave and acted as teller from January 13- 30, 1997 when
Flordeliza Ocampo was on her honeymoon. She then, on both occasions, had complete
access to the cash vaults and filing cabinets of the cooperative where its documents were
kept.

On March 12, 1997, petitioner stopped reporting for work. Narciso Correa, the General
Manager of the cooperative, then instructed the bookkeeper, Angelita Dimapelis, to prepare
bank book balance based on the cash transactions during the day at the office. They tried to
establish the accountability of San Diego by comparing the cash position she prepared and
certified as correct against the balances of the bank. Dimapelis asked the different depository
banks for their bank balances since their savings account passbooks and bank statements
were missing at that time.4

It was only after Corres and Dimapelis reconciled the cash position with the bank balances
that they discovered the discrepancies in petitioner's report. The audited figure showed the
cash on hand in bank to be Php3,712,442.80 as of March 11, 1997.However, petitioner
reported and certified the cash on hand of the cooperative with the total amount of
Php9,590,455.17 to be correct. Dimapelis reported the said discrepancies to Correa and the
Board of Directors. It was then that they decided to file a criminal complaint against San
Diego.5

Thus, an Information was filed against petitioner for the crime of qualified theft,6 which reads
as follows:

That [on] or about the period from January 1996 up to March 1997 in the [M]unicipality of
Obando, [P]rovince of Bulacan, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, being employed as accountant, cashier and teller of Obando
Fisherman's Multi-Purpose Cooperative, Inc. (OFMPCI) and as such had access to the books,
cash vaults and bank deposits of the Cooperative and with grave abuse of confidence, did
then and there willfully, unlawfully and feloniously, with intent to gain and without the
knowledge and consent of Obando Fisherman's Multi-Purpose Cooperative, Inc., take, steal
and carry away with her cash amounting to Php6,016,084.26, to [the] damage and prejudice
of the said Obando Fisherman's Multi-Purpose Cooperative, Inc., in the said amount of
Php6,016,084.26. CONTRARY TO LAW.7

Upon arraignment on December 11, 1987, the accused, then assisted by counsel de oficio for
arraignment only, entered a plea of not guilty. The pre-trial having been waived, trial on the
merits ensued.

The prosecution, to prove the above-stated facts, presented the testimonies of Alfonso
Piscasio, its expert witness, Narciso Correa, Angelita Demapilis, Teresita Gonzales, Noel
Hilario and Santiago Panganiban. The testimonies of Dante Liwanag, Cecilia Sayo and
Jessybelle San Diego were dispensed with. The defense, on the other hand, presented the
testimonies of Alberto C. Gonzales and Criselda Sarmiento-Oplas. The testimony of Oplas,
the defense's expert witness, can be summarized as follows:

Oplas stated that she went over the bank reconciliation statements for the whole year of 1996
and January to March 1997, the financial statements called financial conditions and the
financial operations of the company for the years ending December 1996 and March 1997.
She noticed that one of the recording items stated "overstatement of deposit" or overecording
of deposit so that it was deducted from the book. Another reconciling item stated
"understatement deposit" and it was added. In "overstatement of deposit," she found a
notation "shortage" but did not find that the amount added in the case of understatement of
deposit was offset against the shortage or the amount deducted from the book in case of
overstatement of deposit.8

Consequently, the RTC rendered a Decision dated August 20, 2001, finding petitioner Grace
San Diego guilty beyond reasonable doubt of the crime charged, thus:

WHEREFORE, based on the foregoing findings, the Court hereby finds accused GRACE
SAN DIEGO y TRINIDAD guilty beyond reasonable doubt of the crime of QUALIFIED THEFT
as defined and penalized under Article 310, in relation to Articles 308 and 309 of the Revised
Penal Code, and accordingly, sentences her to suffer the penalty of reclusion perpetua for
forty years without pardon before the lapse of 40 years and with the accessory penalties of
death under Article 40 of the Revised Penal Code, and to indemnify the Obando Fisherman's
Multi-Purpose Cooperative, Inc., in the amount of Php6,016,084.26.

SO ORDERED.9
Due to the nature of the judgment, petitioner filed her appeal with this Court. However, in
accordance with the ruling in People v. Mateo,10 the appeal was transmitted to the CA for
intermediate review. The CA then affirmed the decision of the RTC, with modification that she
indemnify the Obando Fisherman's Multi-Purpose Cooperative, Inc. in the amount of
Php2,080,000.00. The dispositive portion of the said Decision reads:

WHEREFORE, premises considered, the decision of the trial court appealed from which
found accused-appellant guilty beyond reasonable doubt of the crime of QUALIFIED THEFT
is hereby AFFIRMED with the MODIFICATION that she is to indemnify the Obando
Fisherman's Multi-Purpose Cooperative, Inc. in the amount of Php 2,080,000.00.

SO ORDERED.11

Petitioner, after the CA denied her motion for reconsideration, filed with this Court the present
petition stating the following grounds:

a) THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION WHEN IT HELD THAT
THE PROOF ADDUCED BY THE PEOPLE SUFFICES TO OVERTURN THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE;

b) THE COURT OF APPEALS ERRED IN THE CHARACTERIZATION OF THE OFFENSE

ALLEGED TO HAVE BEEN COMMITTED, AND IN CONSEQUENCE, COMMITTED[A]
GRAVE LEGAL ERROR WHEN IT HELD THAT THE PROOF ADDUCED CONGRUES WITH
THE OFFENSE WITH WHICH APPELLANT WAS CHARGED; AND

c) THE COURT OF APPEALS LIKEWISE COMMITTED A GRAVE ERROR OF LAW IN THE

MATTER OF THE PENALTY IMPOSED.

In its comment dated April 18, 2007, the Office of the Solicitor General (OSG) stated that
impleading the CA is procedurally improper. It was stressed that the petition was an offshoot
of a criminal case, thus, the real party-respondent-in-interest is the People of the Philippines.
The OSG prayed that the petition be dismissed outrightly.

This Court finds the present petition partially with merit.

It is settled that absent any showing that the findings are totally devoid of support in the
records, or that they are so glaringly erroneous as to constitute grave abuse of discretion, the
factual findings of the appellate court generally are conclusive, and carry even more weight
when said court affirms the findings of the trial court.12Petitioner is of the opinion that the CA
erred in affirming the factual findings of the RTC. She insists that the prosecution was not able
to prove her guilt beyond reasonable doubt because there was no proof in the audit that the
cooperative had really so much funds and that in consequence there was deficiency of some
Php6,000,000 when compared to pertinent bank statements. As such, petitioner asserts that it
is essential for a successful prosecution for theft that the existence of the personality stolen
be established by qualitative evidence, so the prosecution must fail if no such proof of good
quality was adduced.13

This Court disagrees.

The CA did not err when it ruled that the proof adduced by the prosecution is sufficient to
prove petitioner's guilt beyond reasonable doubt. The prosecution presented the testimony of
its expert witness, Alfonso Piscasio, the cooperative's independent auditor since 1992. He
stated that his audit was based on standard and generally accepted auditing
procedures.14 The audit report, duly offered and presented in the trial, was supported by
certifications by several depository banks of the cooperative indicating its balance on its
account. Records are bereft of any showing that the audit report made by the independent
auditor is erroneous and unsupported by documents and bank statements. Thus, there lies no
reason for this Court not to afford full faith and credit to his report.

Petitioner's own expert witness, Criselda Sarmiento Oplas, failed to dispute the audit report
presented. She admitted to focusing her review on bank reconciliation made by Piscasio.15 It
was only upon cross-examination that she saw the daily cash flow that petitioner prepared
and certified.16 She did not go over the primary books of accounts of the cooperative like the
ledgers, journals and vouchers nor its commercial documents such as invoices, returned
checks including account deposits. She limited herself to the monthly conciliation
reports.17Petitioner also asserts that the People did not present any witness who categorically
testified that petitioner ran away with the supposed missing funds. She claimed that the
demonstration that some checks of varying amounts not recorded in petitioner's books
notwithstanding their return or dishonor, only proved her incompetence in the performance of
her assigned task and not necessarily criminal authorship.

This Court does not agree. It was held in People v. Ragon that resort to circumstantial
evidence is inevitable when there are no eyewitnesses to a crime.18 Direct evidence of the
commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion
and finding of guilt.19 The courts are allowed to rule on the bases of circumstantial evidence if
the following requisites concur: (1) there is more than one circumstance, (2) the facts from
which the inferences are derived are proven, and (3) the combination of all the circumstances
is such as to produce a conviction beyond reasonable doubt.20 The corollary rule is that the
circumstances established must constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty
person.21

In the instant case, the following facts were established in the trial court, which the CA later
affirmed:

1) Petitioner was the accountant of the cooperative. She had custody of the cooperative's
checks which were pre-signed by its Manager and Chairman of the Board of Directors. She
was likewise in charge of cash in bank. She had custody of the documents pertaining to the
withdrawal of the cooperative's deposits with its depository banks.

2) Petitioner completed said checks by filling in all the details inclusive of the date, name of
payee and the amount of the check in words and in figures but exclusive of the signatures.

3) From November 18, 1996 to January 6, 1997, she acted as cashier when Teresita
Gonzales was on maternity leave and acted as teller from January 13-30, 1997 when
Flordeliza Ocampo went into her honeymoon. She then, on both occasions, had complete
access to the cash vaults and filing cabinets of the cooperative where its documents were
kept.

4) Petitioner prepared a certification that the amount of Php9,653,527.06 represented the total
cash balance of the cooperative its depository banks as of March 11, 1997. Upon actual
verification, it was shown that the total cash balance was only Php3,637,442. 80, indicating
that there was a difference of Php 6,016,084.25 and the loss of which were unexplained.
5) Petitioner admitted in a letter to her father that she withdrew Php200,000 from his account
and Php20,000 from her sister-in-law's account in the cooperative.

6) Petitioner deposited Php1,050,000 and Php250,000 to her account with PCI Bank on
August 13, 1996 and May 28, 1996, respectively.

7) Petitioner stopped reporting for work since March 12, 1997.22

In view of the foregoing circumstances and based on records, such created an unbroken
chain which leads to one fair and reasonable conclusion pointing to the petitioner, to the
exclusion of all others, as the guilty person.

Petitioner then insists that the proof adduced plausibly indicates commission of estafa and not
qualified theft. Petitioner argued that if the thing is not taken away, but received and then
appropriated or converted without the consent of the owner, the crime committed is
estafa.23 This Court is not persuaded by her argument. One of the elements of estafa24 with
abuse of confidence is that the money, goods or other personal property be received by the
offender in trust, or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return, the same. When the thing is received by
the offender from the offended party in trust or in commission or for administration, the
offender acquires both material or physical possession and juridical possession of the thing
received.25

Juridical possession means a possession which gives the transferee a right over the thing
transferred and this he may set up even against the owner.26 It was established in the trial that
petitioner never received the sum of money in trust, or on commission or for administration.
Correa outlined the procedure followed by the cooperative in the deposit of its funds with the
cooperative's depository banks, thus:

A: There were cash summarized for the day and the checks collected during the day for the
different depository banks are summarized and prepared by Grace San Diego and this(sic)
were being brought to the different depository banks and sent through our liaison office Mr. Al
Gonzales.27

xxx

When asked how said funds were withdrawn from said banks by the cooperative, Correa
answered:

A: Normally, withdrawals are made by checks and if there are no cleared checks in the bank
the accountant because she knew the cash position in the bank if there is a need of cash, a
check is converted into cash in the depository bank and sent through the liaison officer and
handed to the chief accountant because she was the one responsible.28

xxx

As to how checks were prepared as far as withdrawals were concerned was, Correa's answer
was:

A: Because we have so many things to do, we were busy we were preoccupied, we prepared
set of blank check resigned and we entrusted this to Ms. Grace San Diego and she filled up
the checks particularly the date, the words, the amount in words and in figure numbers,
sir.29 Clearly, the above testimonies show that petitioner did not have juridical possession of
the sum of money. She did not have the right over the sum of money she may have received
in the course of her functions as accountant, teller and cashier of the cooperative. The CA
was correct when it described the possession of the petitioner was akin to that of a receiving
teller of funds received from third persons paid to the bank. Payment by third persons to the
teller is payment to the bank itself; the teller is a mere custodian or keeper of the funds
received, and has no independent, autonomous right to retain the money or goods received in
consequence of the agency, as when the principal fails to reimburse him for advances he has
made, and indemnify him for damages suffered without his fault.30

Anent the issue of penalty, the penalty for the crime of qualified theft based on Article 310 of
the Revised Penal Code (RPC)is the penalty next higher by two (2) degrees than those
respectively specified in Article 309 of the RPC, thus:

The penalty of prision mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the
thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten thousand pesos, but the
total of the penalty which may be imposed shall not exceed twenty years. In such cases, and
in connection with the accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal,
as the case may be. From the provisions of Articles 309 and 310 of the RPC, the penalty that
is two (2) degrees higher than prision mayor in its minimum and medium periods is reclusion
temporalin its medium and maximum periods. In view, however, of the incremental penalty in
simple theft under Article 309 of the RPC, which is likewise applicable to the crime of qualified
theft, when the value of the thing stolen is more than P22,000.00, the penalty shall be
imposed in its maximum period with an additional period of one (1) year for every P10,000.00
in excess ofP22,000.00. In the case at bar, the value of the property stolen as determined by
the RTC and modified by the CA is P2,080,000.00. Deducting P22,000.00 to the amount, the
difference of P2,058,000.00 will then be divided byP10,000.00, disregarding any amount less
than P10,000.00, we will have two hundred five (205). Thus, 205 years is the incremental
penalty. Since the imposable penalty for qualified theft is reclusion temporalin its medium and
maximum periods to be imposed in its maximum period which is eighteen (18) years, two (2)
months, and twenty-one (21) days to twenty (20) years, if we add the incremental penalty of
two hundred five (205) years, then the range of the penalty is two hundred twenty-three (223)
years, two (2) months, and twenty-one (21) days to two hundred twenty-five (225) years.
However, such penalty cannot be imposed because the maximum penalty that can be
imposed is only up to 40 years, which is the maximum period of reclusion perpetua.

Unlike in Simple Theft where the maximum penalty cannot exceed twenty (20) years, in
Qualified Theft such limitation does not exist. Nonetheless, inasmuch as the penalty
1 wphi1

imposable in the case at bar exceeds twenty (20) years, logically, the penalty that should be
imposed is reclusion perpetua, which is the penalty one degree higher than reclusion
temporal.

There is now a need to modify the penalty imposed by the lower court and affirmed by the CA.
Verily, the proper penalty imposable is, thus, the penalty of reclusion perpetua, but it was
incorrect for the R TC to sentence the accused to the penalty of reclusion perpetua for forty
( 40) years without pardon because that would be a limitation on the part of the power of the
Chief Executive. The exercise of the pardoning power is discretionary in the President and
may not be controlled by the legislature or reversed by the court, save only when it
contravenes the limitations set forth by the Constitution.31 Interest at the rate of six percent
(6%) per annum is likewise imposed from date of finality of this Decision until full payment
pursuant to Nacar v. Gallery Frames.32

WHEREFORE, the petition is DENIED. Consequently, the Decision and Resolution, dated
March 6, 2006 and December 14, 2006, respectively, of the Court of Appeals affirming with
modification the Decision dated August 20, 2001 of the Regional Trial Court of Malolos,
Bulacan, Branch 17, finding petitioner guilty beyond reasonable doubt of the crime of qualified
theft under Article 310, in connection with Article 308 of the Revised Penal Code, are hereby
AFFIRMED with MODIFICATION. Petitioner Grace San Diego y Trinidad is sentenced to
reclusion perpetua, with all its accessory penalties. and to indemnify the Obando Fisherman's
Multi-Purpose Cooperative, Inc. in the amount of Php2,080,000.00, plus interest at the rate of
six percent (6%) per annum from finality of judgment until full satisfaction:

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

MARIANO C. DEL CASTILLO* BIENVENIDO L. REYES

Associate Justice Associate Justice

FRANCIS H. JARDELEZA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice
Footnotes

* Designated Acting Member, per Special Order No. 1958 dated March 23, 2015.

1Penned by Associate Justice Arcangelita M. Romilla-Lontok, with Associate Justices Marina

L. Buson and Martin S. Villarama, Jr. (now a member of this Court), concurring; rollo, pp.
22-53.

2 Id. at 63-56.

3 Penned by Presiding Judge Teresita V. Diaz-Baldos; id. at 86-110.

4
CA Decision p. 6,rollop. 27.

5
TSN, November 17, 1998, pp. 11-12

6Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain
but without violence against or intimidation of persons nor force upon things, shall take
personal property of another without the latter's consent.

Art. 310. Qualified theft. The crime of theft shall be punished by the penalties next higher
by two degrees than those respectively specified in the next preceding article, if committed by
a domestic servant, or with grave abuse of confidence, or if the property stolen is motor
vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the
plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire,
earthquake, typhoon, volcanic erruption, or any other calamity, vehicular accident or civil
disturbance.

7
Rollo, p. 86.

8
TSN, June 22, 2000, p. 20.

9 Rollop. 110.

10
G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

11 CA Decision, p. 31, rollo p. 52.

12 Libuit v. People, 506 Phil. 591, 599 (2005).

13 Rollo, p. 8.

14
TSN, April 28, 1998, p. 18.

15
TSN, June 22, 2000, p. 15.

16 CA Decision, pp. 23-24; rollo, pp. 44-45;

17 TSN, July 27, 2000, pp- 9-10

18 346 Phil. 772, 779 (1997).

19People v. Danao, 313 Phil. 178, 184 (1995), citing People v. Desalisa, G. R. No. 95262,
January 4, 1994, 229 SCRA 35.

20 Id., citing People v. Sunga, et al., G.R. No. 106096, November 22, 1994, 238 SCRA 274.

Id., citing People v. Genobia, et al., G.R. No. 110058, August 3, 1994, 234 SCRA 699;
21

People v. Estrellanes, Jr., et al., G.R. No. 111003, December 15, 1994, 239 SCRA 235.

22 CA Decision, pp. 26-27; rollo, pp. 47-48.

23
Citing People v. Nieves De Vera, 43 Phil. 1000, 1004 (1922); People v. Jaranilla, G.R. No.
L-28547, February 22, 1974, 55 SCRA 563.

Art. 315 Swindling (estafa) Any person who shall defraud another by any of the means
24

mentioned herein below shall be punished by:

x x x x 1. With unfaithfulness or abuse of confidence, namely:

x x x (b) By misappropriating or converting, to the prejudice of another, money, goods, or any

other personal property received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of or to return
the same, even though such obligation be totally or partially guaranteed by a bond; or by
denying having received such money, goods, or other property.

25
Reyes, The Revised Penal Code, 2008 ed., Book Two, p. 781.

26
Id.

27 TSN, August 25, 1998, p. 20.

28 CA Decision, p. 8; rollo, p. 29.

29
TSN, August 25, 1998, p. 21.

30
Citing Guzman vs. CA, 99 Phil. 704, 707 (1956), citing Article 1915, New Civil Code.

31 Cruz, Philippine Political Law, 2002 ed., p. 230.

32 G.R. No. 189871, August 13, 2013, 703 SCRA 439.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 99031 October 15, 1991

RODOLFO D. LLAMAS, petitioner,

vs.
EXECUTIVE SECRETARY OSCAR ORBOS and MARIANO UN OCAMPO III, respondents.

Mauricio Law Office for petitioner.

Ongkiko, Bucoy, Dizon & Associates for private respondent.

PARAS, J.:p

The case before Us calls for a determination of whether or not the President of the Philippines
has the power to grant executive clemency in administrative cases. In connection therewith,
two important questions are also put in issue, namely, whether or not the grant of executive
clemency and the reason therefore, are political questions beyond judicial review, and
whether or not the questioned act was characterized by grave abuse of discretion amounting
to lack of jurisdiction.

Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the Province of Tarlac and,
on March 1, 1991 he assumed, by virtue of a decision of the Office of the President, the
governorship (p. 1, Petition). Private respondent Mariano Un Ocampo III is the incumbent
Governor of the Province of Tarlac and was suspended from office for a period of 90 days.
Public respondent Oscar Orbos was the Executive Secretary at the time of the filing of this
petition and is being impleaded herein in that official capacity for having issued, by authority of
the President, the assailed Resolution granting executive clemency to respondent governor.

Sometime in 1989, petiotioner, together with Tarlac Board Members Marcelino Aganon, Jr.
and Arnaldo P. Dizon, filed on June 13, 1989 a verified complaint dated June 7, 1989 against
respondent governor before the then Department of Local Government (DLG, for short),
charging him with alleged violation of Section 203(2) (f) 203(2) (p), and 208(w), of Batas
Pambansa (B.P.) Blg. 337, otherwise known as the Local Government Code, and other
appropriate laws, among them, the Anti-Graft and Corrupt Practices ACt. Prior to that,
petitoner filed with the Office of the Omdusman a verified complainant dated November 10,
1988 against respondent governor for the latter's alleged viloation of Section 3-G of Republic
Act. (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

The complaint before the DLG, docketed as Administrative Case 10459, was subsequently
tried, where both petitioner and respondent govemor presented their respective evidence.

Petitioner maintains that sometime in August, 1988, respondent governor, in his official
capacity as Provincial Governor Tarlac, entered into and executed a Loan Agreement with
Lingkod Tarlac Foundation, Inc., a non-stock and non-profit organization headed by the
governor himself as chairman and controlled by his brother-in-law as executive director,
trustee, and secretary; that the said Loan Agreement was never authorized and approved by
the Provincial Board, in direct contravention of the provisions of the Local Government Code;
that the said Agreement is wholly one-sided in favor of the Foundation and grossly inimical to
the interest of the Provincial Government (because it did not provide for interest or for any
type security and it did not provide for suretyship and comptrollership or audit to control the
safe disbursement of said loan); that a total amount of P20,000,000.00 was disbursed to the
aforesaid Foundation; that the transactions constitute a fraudulent scheme to defraud the
Provincial Government; and that the said Agreement is wholly unconstitutional, illegal, a
immoral. (Annex "A", Petition)

On the other hand, it is the contention of respondent governor that "the funds were intended
to generate livelihood project among the residents of Tarlac and the use of the Lingkod Tarlac
Foundation, Inc. was authorized by law and considered the best alternative as a matter of
judgment." (pp. 12-13, Appeal Memorandom); that he resigned from the said Foundation in
order to forestall any suspicion that he would influence it; that it is not true that the Loan
Agreement did not provide for continuing audit by the Provincial Government because the
Memorandum of Agreement provides otherwise; and that the Agreement is not manifestly and
grossly disadvantageous to the Provincial Government and respondent governor did not and
would not profit thereby because it provided sufficient safeguards for repayment. (Annex "A",
Petition)

After trial, the Secretary of the then Department of Local Government rendered a decision
dated September 21, 1990, dispositive portion of which reads:

WHEREFORE, Governor Mariano Un Ocampo III is, as he hereby found guilty of having
violated Section 3(g) of Republic Act No.3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, which act amounts to serious neglect of duty and/or abuse of authority, for
which tilp penalty of suspension from office for a period of ninety (90) days, effective upon the
finality of this Decision, is hereby imposed upon him. (p. 3, Petition)

Parenthetically, be it noted that the Resolution imposed not a preventive suspension but a
penalty of suspension.

Respondent govemor moved for a reconsideration of the abovequoted decision but the same
was denied on October 19, 1990. Aggrieved, he appealed the DLG decision dated September
21, 1990 and the order of denial dated October 19, 1990 to the Office of the President (O.P.
Case No. 4480).

On February 26, 1991, herein public respondent Executive Secretary issued a Resolution
dismissing respondent governor's appeal and affirming the September 21, 1990 DLG
decision.

Subsequently, and pursuant to Sec. 66, Chapter 4 of B.P. Blg. 337, to the effect that the
decision of the Office of the President in administrative suspension of local officials shall be
immediately executory without prejudice to appeal to appropriate courts, petitioner, on March
1, 1991, took his oath of office as acting governor. Under the administrative suspension order,
petitioner had up to May 31, 1991 as acting governor. On the same date (March 1, 1991),
respondent govemor moved for a reconsideration of the Executive Secretary's Resolution, to
which petitioner filed an opposition. From the allegations of the petitioner in his petition,
respondent govemor accepted his suspension and turned over his office to petitioner.
To the surprise of petitioner, however, respondent govemor on March 19, 1991, issued an
"administrative order" dated March 8, 1991, in which the latter signified his intention to
"(continue, as I am bound to exercise my fimctions as govemor and shall hold office at my
residence," in the belief that "the pendency of my Motion for Reconsideration precludes the
coming into finality as executory the DLG decision." (Annex "E", Petition; p. 10, Comment).
And, as categorically stated in the petition, the reassumption ceremony by respondent
governor was held on May 21, 1991 (p. 8, Petition).

Without ruling on respondent governor's Motion for Reconsideration, public respondent

issued a Resolution dated May 15, 1991, in O.P. Case No. 4480, which reads:

This refers to the petition of Gov. Mariano Un Ocampo III of Tarlac for executive clemency,
interposed in connection with the decision of the Secretary of then Department of Local
Governmen (DLG) dated 21 September 1990, as affirmed in a Resolution of this Office dated
26 February 1991, suspending petitioner from office for period of ninety (90) days upon the
finality of said decision.

As will be recalled, the DLG Secretary imposed the penalty of suspension upon his finding
that petitioner was guilty of serious neglect of duty and/or abuse of authority for entering into a
loan contract with the Lingkod Tarlac Foundation, Inc. (LTFI) grossly/manifestly
disadvantageous to Tarlac Province. In his letter-petition of 10 May 1991, thereby pleading for
a thirty (30)-day reduction of his suspension, petitioner invited attention to the DLG
Secretary's decision clearing him of having personally benefitted from the questioned
transaction. In the same letter, petitioner manifests serving more than sixty (60) days of the
ninety-day suspension. Previously, petitioner submitted documents and letters from his
constituents tending to show the relative success of his livelihood loan program pursue under
the aegis of the LTFI and/or the Foundation's credible loan repayment record. To cite some:

1. Certification of the Chairman,Tarlac Integrated Livelihood Cooperative, Inc., attesting to the

full payment of its loan (P15.05 M) plus interest with LTFI;

2. Certification of the Manager, Rural Bank of Geron (Tarlac), Inc., attesting to the gradual
liquidation of the loan granted to family-borrowers out of funds provided by LTFI;

3. Letter of Jover's Phil., expressing gratitude for the loan assistance extended for its export
activities by LTFI;

4. Letter of the Tarlac Provincial Agricultural Officer i forming that the proceeds of the loan
from LTFI have bee utilized in hybrid com production; and

5. Letter of the President of the Federation of Tobacco Leaf Producers of Tarlac, Inc.,
informing of the payment of 76 of the amount (P203,966.00) loaned to the Federation for
tobacco production.

Petitioner's act, vis-a-vis the loan to LTFI, may have been promp by an over eagerness to
accelerate the delivery of livelihood services to his provincemates. As the truism goes,
however, the end does not always justify the means. Be that as it may, but without belaboring
the propriety of the loan agreement aforementioned, some measure of leniency may be
accorded petitioner as the purpose of his suspen sion may have made its mark.
WHEREFORE, Governor Mariano Un Ocampo III is hereby granted executive clemency in
the sense that his ninety-day suspension is hereby reduced to the period already served.

SO ORDERED.

(Annex "F", Petition; pp. 25-26, Rollo)

By virtue of the aforequoted Resolution, respondent governor reassumed the governorship of

the province, allegedly withou any notification made to the petitioner.

Petitioner posits that the issuance by public respondent of the May 15, 1991 Resolution was
"whimsical, capricious and despotic, and constituted grave abuse of discretion amounting lack
of jurisdiction," (p. 6, petition) basically on the ground th executive clemency could be granted
by the President only in criminal cases as there is nothing in the statute books or even in the
Constitution which allows the grant thereof in administrative cases. Petitioner also contends
that since respondent governor refused to recognize his suspension (having reassumed the
governorship in gross defiance of the suspension order), executive clemency cannot apply to
him; that his rights to due process were violated because the grant of executive clemency was
so sudden that he was not even notified thereof; and that despite a finding by public
respondent of impropriety in the loan transaction entered into by respondent governor, the
former failed to justify the reduction of the penalty of suspension on the latter. Petitioner
further alleges that the exftutive clemency granted by public respondent was "the product of a
hocus-pocus strategy" (p. 1, Manifestation with Motion, etc.) because there was allegedly no
real petition for the grant of executive clemency filed by respondent govemor.

Batas Pambansa Blg. 337 provides:

Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the
Minister of Local Government if the respondent is a provincial or city official, ...

(2) Preventive suspension may be imposed at any time after the issues are joined, when there
is reasonable ground to believe that the respondent has committed the act or acts complained
of, when the evidence of culpability is strong, when the gravity of the offense s warrants, or
when the continuance in office of the respondent coul influence the witnesses or pose a threat
to the safety and integrity the records and other evidence. In all cases, preventive suspension
shall not extend beyond sixty days after the start of said suspension.

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office
without prejudice to the continuation the proceedings against him until its termination.
(Emphasis supplied)

It is admitted by petitioner that since March 1, 1991, he has assumed the governorship. A
portion of the petition is hereon der quoted as follows:

7. [On February 28, 1991], and in accordance with the provisions of the Local Government
Code (Sec. 66, Chapter 4, Batas Pambansa Blg. 337), to the effect that the decision of the
Office of the President in an administrative suspension of local officials shall be immediately
executory without prejudice to appeal to appropriate courts, Petitioner Llamas took his oath of
office as acting govemor. Under the administrative suspension order, Llamas had up to May
31 [sic 29] 1991 as acting governor;
8. A copy of this oath of office is attached and made a part hereof as Annex B;

9. Significantly, this oath of office was sworn to by Petitioner Llamas before Secretary Santos
of the newly created Department Interior and Local Government, as shown by the lower
portion Annex B, and by a picture of the oathtaking itself, attached and mad a part hereof as
Annex B-1;

10. Subsequently, Petitioner Llamas and Respondent Ocampo met, where Ocampo was
shown Llamas' oath of office. During meeting, held in the presence of all department heads at
the provi cial capitol and in the presence of various local government offici and
representatives of the media, Ocampo agreed to turn over reigns of the provincial government
to Petitioner;

11. In fact, Ocampo had asked the department heads and all other officials of the provincial
government of Tarlac to extend their cooperation to Llamas, during the ninety days that the
latter would assume the governorship;

12. And, as if this was not enough, Ocampo even made announcements in the media that he
was allowing Petitioner Llamas to perform his functions as acting governor at the Office of the
Govern at the Capitol where he (Ocampo) used to hold office (true enough Ocampo has
subsequently allowed Llamas to hold office at the of the Governor, with Ocampo even
escorting the acting therein last March 4, 1991);

l 3. An account of Ocampo's acceptance of his suspension and of his having turned over his
office to Petitioner Llamas was published, front page, in the March 5, 1991 issue of the Manila
Bulletin. A copy of this news account is attached and made a part hereof as Annex C);

14. Furthermore, various other officials, President Aquino Rep. Jose Cojuangco included,
have extended recognition to Petitions Llamas' assumption of the governorship. Llamas met
with President Aquino and Rep. Cojuangco and, during this meeting, the two highest officials
of the land have asked Llamas to discharge his duties acting governor;

15. Secretary Santos, for that matter, has issued a designation to Tarlac Senior Board
Member Aganon, dated March 18, 1991, a pointing bim as acting vice governor of the
province, "in view of the suspension of Gov. Mariano Un Ocampo III, and the assumption Vice
Governor Rodolfo Llamas as acting governor." A copy of this designation is attached and
made a part hereof as Annex D;

xxx xxx xxx

30. ... [T]he reassumption ceremony by [Governor] Ocampo was held [in the] morning of May
21, 1991 ... (pp- 2-4 & 7, Petition; pp. 3-5 & 8, Rollo)

It is prayed in the instant petition dated May 21, 1991 that:

b. In the meantime that this action is pending, and irnmediately upon the filing hereof, a
temporary restraining order be issued stopping the Respondents from enforcing, in any
manner, the aforesaid contested resolution, and Respondent Ocampo, firom continuing with
his reassumption of the governorship. IN THE ALTERNATIVE, that a cease and desist order
be issued against Respondent Ocampo stopping him from continuing with hiii reassumption of
the governorship.
Let us first deal with the issue on jurisdiction. Respondent govemor avers that since under the
Constitution fiffl discretionary authority is granted to the President on the exercise of executive
clemency, the same constitutes a political question which is beyond judicial review.

Such a rule does not hold true in the case at bar. While it is true that courts cannot inquire into
the manner in which the President's discretionary powers are exercised or into the wisdom for
its exercise, it is also a settled rule that when the issue involved concerns the validity of such
discretionary powers or whether said powers are within the limits prescribed by the
Constitution, We will not decline to exercise our power of judicial review. And such review
does not constitute a modification or correction of the act of the President, nor does it
constitute interference with the functions of the President. In this connection, the case
of Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051, is very enlightening, and We
quote:

Elsewhere in this treatise the well-known and well-established principle is considered that it is
not within the province of the courts to pass judgment upon the policy of legislative or
executive action. Where, therefore, discretionary powers are granted by the Consfitution or by
statute, the manner in which those powers are exercised is not subject to judicial review. The
courts, therefore, concern themselves only with the question as to the existence and extent of
these discretionary powers.

As distinguished from the judicial, the legislative and executive departments are spoken of as
the political departments of government because in very many cases their action is
necessarily dictated by considerations of public or political policy. These considerations of
public or political policy of course will not permit the legislature to violate constitutional
provisions, or the executive to exercise authority not granted him by the Constitution or by
statute, but, within these limits, they do permit the departments, separately or together, to
recognize that a certain set of facts exists or that a given status exists, and these
determinations, together with the consequences that flow therefrom, may not be traversed in
the courts. (Willoughby on the Constitution of the United States, Vol. 3, p. 1326).

xxx xxx xxx

What is generally meant, when it is said that a question is political, and not judicial, is that it is
a matter which is to be exercised by the people in their primary political capacity, or that it has
been specifically delegated to some other department or particular officer of the goverrunent,
with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, 51 L.R.A. 561; In Re
Gunn, 50 Fan. 155; 32 Pac. 470, 948, 19 L. RA. 519; Green vs. Mills, 69 Fed. 852, 16, C. CA
516, 30 L.R.A- 90; Fletcher vs. Tuttle, 151 111, 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St.
Rep. 220. Thus the Legislature may in its discretion determine whether it will pass a law or
submit a proposed constitutional amendment to the people. The courts have no judicial
control over such matters, not merely because they involve political question, but because
they are matters which the people have by the Constitute delegated to the Legislature. The
Governor may exercise the powers delegated to him, free from judicial control, so long as he
observes the laws and acts within the limits of the power conferred. His discretionary acts
cannot be controllable, not primarily because they are of a political nature, but because the
Constitution and laws have placed the particular matter under his control. But every officer
under a constitutional government must act according to law and subject him to the
restraining and controlling power of the people, acting through the courts, as well as through
the executive or the Legislature. One department is just as representative as the other, and
the judiciary the department which is charged with the special duty of determinining the
limitations which the law places upon all official action. The recognition of this principle,
unknown except in Great Britain and America, is necessary, to "the end that the government
may be one of laws and not men" words which Webster said were the greatest contained in
any written constitutional document.

Besides, under the 1987 Constitution, the Supreme Court has been conferred an "expanded
jurisdiction" to review the decisions of the other branches and agencies of the government to
determine whether or not they have acted within the bounds of the Constitution (See Art. VIII,
Sec. 1, Constitution). "Yet, in the exercise thereof, the Court is to merely check whether or not
the govermental branch or agency has gone beyond the constitutional limits of its jurisdiction,
not that it erred or has a different view" (Co vs. Electoral Tribunal of the House of
Representatives & Ong, G.R. Nos. 92191-92 and Balanquit vs. Electoral Tribunal of the
House of Representatives & Ong, G.R Nos. 92202-03, July 30, 1991).

In the case at bar, the nature of the question for determination is not purely political. Here, we
are called upon to decide whether under the Constitution the President may grant executive
clemency in administrative cases. We must not overlook the fact that the exercise by the
President of her power of executive clemency is subject to constitutional l'um'tations. We will
merely check whether the particular measure in question has been in accordance with law. In
so doing, We will not concern ourselves with the reasons or motives which actuate the
President as such is clearly beyond our power of judicial review.

Petitioner's main argument is that the President may grant executive clemency only in
criminal cases, based on Article VII, Section 19 of the Constitution which reads:

Sec. 19. Except in cases of impeachment, or as otherwise pro vided in this Constitution, the
President may grant reprieves, commu tations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the
members of the Congress. (Emphasis supplied)

According to the petitioner, the qualifying phrase "after conviction by final judgment" applies
solely to criminal cases, and no other law allows the grant of executive clemency or pardon to
anyone who has been "convicted in an administrative case," allegedly because the word
"conviction" refers only to criminal cases (par. 22-b, c, d, Petition). Petitioner, however,
describes in his very own words, respondent governor as one who has been "convicted in an
administrative case" (par. 22-a, petition). Thus, petitioner concedes that the word "conviction"
may be used either in a criminal case or in an administrative case. In Layno, Sr. vs.
Sandiganbayan, 136 SCRA 536, We ruled:

For misfeasance or malfeasance ... any [elective official] could ... be proceeded against
administratively or ... criminally. In either case, his culpability must be established ...

It is also important to note that respondent govemor's Motion for Reconsideration filed on
March 1, 1991 was withdrawn in his petition for the grant of executive clemency, which fact
rendered the Resolution dated February 26, 1991 affirming the DLG Decision (which found
respondent governor guilty of neglect of duty and/or abuse of authority and which suspended
him for ninety (90) days) final.

Moreover, applying the doctrine "Ubi lex non distinguit, nec nos distinguire debemos," We
cannot sustain petitioner's view. In other words, if the law does not distinguish, so We must no
distinguish. The Constitution does not distinguish between which cases executive clemency
may be exercised by the President, with the sole exclusion of impeachment cases. By the
same token, if executive clemency may be exercised only in criminal cases, it would indeed
be unnecessary to provide for the exclusion of impeachment cases from the coverage of
Article VII, Section 19 of the Constitution. Following petitioner's proposed interpretation, cases
of impeachment are automatically excluded inasmuch as the same do not necessarily involve
criminal offenses.

In the same vein, We do not clearly see any valid and convincing reason why the President
cannot grant executive clemency in administrative cases. It is Our considered view that if the
President can grant reprieves, commutations and pardons, and remit fines and forfeitures in
criminal cases, with much more reason can she grant executive clemency in administrative
cases, which are clearly less serious than criminal offenses.

A number of laws impliedly or expressly recognize or support the exercise of the executive
clemency in administrative cases.

Under Sec. 43 of P.D. 807, "In meritorious cases, ..., the President may commute or remove
administrative penalties or disabilities issued upon officers and employees, in disciplinary
cases, subject to such terms and conditions as he may impose in the interest of the service."

During the deliberations of the Constitutional Commission, a subject of deliberations was the
proposed amendment to Art. VII, Sec. 19 which reads as follows: "However, the power to
grant executive clemency for violation of corrupt practices laws may be limited by
legislation."The Constitutional Commission, however, voted to remove the amendment, since
it was in derogation of the powers of the President. As Mr. Natividad stated:

I am also against this provision which will again chip more powers from the President. In case
of other criminals convicted in our society we extend probation to them while in this case, they
have already been convicted and we offer mercy. The only way we can offer mercy to them is
through this executive clemency extended to them by the President. If we still close this
avenue to them, they would be prejudiced even worse than the murderers and the more
vicious killers in our society ....

The proposal was primarily intended to prevent the President from protecting his cronies.
Manifestly, however, the Commission preferred to trust in the discretion of Presidents and
refrained from putting additional limitations on his clemency powers. (II RECORD of the
Constitutional Commission, 392, 418-419, 524-525)

It is evident from the intent of the Constitutional Commission, therefore, that the President's
executive clemency powers may not be limited in terms of coverage, except as already
provided in the Constitution, that is, "no pardon, amnesty, parole, or suspension of sentence
for violation of election laws, rules and regulations shall be granted by the President without
the favorable recommendation of the COMELEC" (Article IX, C, Section 5, Constitution). If
those already adjudged guilty criminally in court may be pardoned, those adjudged guilty
administratively should likewise be extended the same benefit.

In criminal cases, the quantum of evidence required to convict an individual is proof beyond
reasonable doubt, but the Constitution grants to the President the power to pardon the act
done by the proved criminal and in the process exempts him from punishment therefor. On
the other hand, in administrative cases, the quantum of evidence required is mere substantial
evidence to support a decision, not to mention that as to the admissibility of evidence,
administrative bodies are not bound by the technical and rigid rules of admissibility prescribed
in criminal cases. It will therefore be unjust and unfair for those found guilty administratively of
some charge if the same effects of pardon or executive clemency cannot be extended to them,
even in the sense of modifying a decision to subserve the interest of the public. (p. 34,
Comment of public respondent)

Of equal importance are the following provisions of Executive Order No. 292, otherwise
known as the Administrative Code of 1987, Section I, Book III of which provides:

SECTION 1. Power of Control. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

SECTION 38. Definition of Administrative Relationships. Unless otherwise expressly stated

in the Code or in other laws defining the special relationships of particular agencies,
administrative relationships shall be categorized and defined as follows:

(1) Supervision and Control. Supervision and control shall include authority to act directly
whenever a specific function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve, reverse or modify acts
and decisions of subordinate officials or units; determine priorities in the execution of plans
and programs. Unless a different meaning is explicitly provided in the specific law governing
the relationship of particular agencies the word "control" shall encompass supervision and
control as defined in this paragraph. ... (emphasis supplied)

The disciplinary authority to investigate, suspend, and remove provincial or city officials
devolves at the first instance on the Department of Interior and Local Government (Secs. 61
and 65, B.P. Blg. 337) and ultimately on the President (Sec. 66). Implicit in this authority,
however, is the "supervision and control" power of the President to reduce, if circumstances
so warrant, the imposable penalty or to modify the suspension or removal order, even "in the
sense" of granting executive clemency. "Control," within the meaning of the Constitution, is
the power to substitute one's own judgment for that of a subordinate. Under the doctrine of
Qualified Political Agency, the different executive departments are mere adjuncts of the
President. Their acts are presumptively the acts of the President until countermanded or
reprobated by her (Vinena v. Secretary, 67 Phil. 451; Free Telephone Workers Union vs.
Minister of Labor and Employment, 108 SCRA 767 [1981]). Replying upon this view, it is
urged by the Solicitor General that in the present case, the President, in the exercise of her
power of supervision and control over all executive departments, may substitute her decision
for that of her subordinate, most especially where the basis therefor would be to serve the
greater public interest. It is clearly within the power of the President not only to grant
"executive clemency" but also to reverse or modify a ruling issued by a subordinate against an
erring public official, where a reconsideration of the facts alleged would support the same. It
is in this sense that the alleged executive clemency was granted, after adducing reasons that
subserve the public interest. "the relative success of . . . livelihood loan program." (pp.
39-40, Comment of public respondent)

We wish to stress however that when we say the President can grant executive clemency in
administrative cases, We refer only to all administrative cases in the Executive branch, not in
the Judicial or Legislative branches of the government.

Noteworthy is the fact that on March 1, 1991, respondent governor filed a motion for
reconsideration and the same may be regarded as implicitly resolved, not only because of its
withdrawal but also because of the executive clemency which in effect reduced the penalty,
conformably with the power of "control."
On petitioner's argument that private respondent's motion for reconsideration has abated the
running of the reglementary period for finality of judgment in O.P. Case No. 4480 (that is,
there being no final judgment to speak of, the pardon granted was premature and of no effect,
We reiterate the doctrine that upon acceptance of a presidential pardon, the grantee is
deemed to have waived any appeal which he may have filed. Thus, it was held that:

The commutation of the penalty is impressed with legal significance. That is an exercise of
executive clemency embraced in the pardoning power. According to the Constitution: "The
President may except in cases of impeachment, grant reprieves, commutations and pardons,
remit fines and forfeitures and, with the concurrence of the Batasang Pambansa, grant
amnesty. "Once granted, it is binding and effective. It serves to put an end to this appeal."
(Mansanto v. Factoran, Jr., G.R. No. 78239, 170 SCRA 190. 196). (See also Peo v. Crisola,
129 SCRA 13)

Consequently, respondent governor's acceptance of the presidential pardon "serves to put an

end" to the motion for reconsideration and renders the subject decision final, that of the period
already served.

Finally, petitioner's argument that his constitutional rights to due process were violated is
uruneritorious. Pardon has been defined as "the private, though official, act of the executive
magistrate, delivered to the individual for whose benefit it is intended and not communicated
officially to the court. ..." (Bernas, The Constitution of the Philippines, Vol. II, First Ed. 1988,
pp. 239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]). Thus, assuming that petitioner was
not notified of the subject pardon, it is only because said notice is unnecessary. Besides,
petitioner's claim that respondent governor has not begun serve sentence is belied by his very
own factual allegations in his petition, more particularly that he served as Acting Governor of
Tarlac effective from the date he took his Oath of Office on February 28, 1991 up to the time
respondent govemor reassumed the governorship of Tarlac on May 21, 1991 (par. 30
petition). It is, therefore, error to say that private respondent did not serve any portion of the
90-day suspension meted upon him.

We fail to see any grave abuse of discretion amounting to lack or in excess of jurisdiction
committed by public respondent.

WHEREFORE, judgment is hereby rendered: (1) DECLARING that the President did not act
arbitrarily or with abuse, much less grave abuse of discretion in issuing the May 15, 1991
Resolution granting on the grounds mentioned therein, executive clemency to respondent
governor and that, accordingly, the same is not unconstitutional (without prejudice to criminal
proceedings which have been filed or may be filed against respondent governor), and (2)
DENYING the rest of the prayers in the petition for being unmeritorious, moot and academic.
No costs.

SO ORDERED.

Fernan, C.J., Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.

Melencio-Herrera, J., is on leave.

 Separate Opinions

CRUZ, J., dissenting:

I concur in the result and would s the challenged resolution of May 18, 1991, on the basis only
of the Fresident's control power. I think the discussion of the pardoning power is unnecessary
and may even be misleading as theponencia itself says that it was not by virtue thereof that
the private respondent's penalty was reduced. The correct approach, if I may spectfully
suggest it, is to uphold the resolution solely on strength of the President's power of "control of
all the executive departments, bureaus and offices" under Article VII, Sect 17, of the
Constitution.

We have held in many cases that a Cabinet member is an alter ego of the President whose
acts may be affirmed, modified reversed by the latter in his discretion. (Villena v. Sec. of
Interior, 67 Phil. 451; Lacson-Magallanes v. Pao, 21 SC 895; Gascon v. Arroyo, 178 SCRA
582; De Leon v. Carpio, 1 SCRA 457). What happened in this case was that President Aquino
saw fit to amend the decision rendered by the Secretary of Local Government on September
21, 1990, by reducing 90-day suspension imposed on Gov. Ocampo. The President had the
authority to do this, and she could exercise it through Executive Secretary. His act, not having
been "reprobated disauthorized" by her, is presumed to be the act of the Preside herself.

The Court is not concerned with the wisdom of that act, on its legality. I believe the act is legal
but reserve judgment on its wisdom.

PADILLA, J., dissenting:

I vote to grant the petition which seeks to annul the 15 May 1991 resolution of the Office of the
President, for the reason that the respondent Executive Secretary, presumably acting on
behalf of the President, had acted in excess of his jurisdiction in granting executive clemency
to private respondent Ocampo III by reducing the ninety-day suspension imposed upon him to
the period he had already served.

Under the Local Government Code (BP 337), the law in force at the time material to this
case, the authority of the President over local governments is one of general supervision only,
to ensure that local affairs are administered according law. General supervision over local
governments includes the authority to order an investigation of the conduct of local officials
whenever necessary. 1 The 1987 Constitution as well as the Administrative Code of 1987 also grants to the President the
power of general supervision over local governments. 2

In taking disciplinary action against local elective officials, the President has no inherent
power to suspend or remove them unless authorized by law and on grounds set forth by the
latter. 3 Section 60 of the Local Government Code 4enumerates the acts for which an elective local official may be suspended or
removed. The Secretary of Interior and Local Government is given the authority to try complaints filed against any elective city or
provincial official. 5 The decision of removal or suspension by the Secretary of Interior and Local Government is appealable to the
Office of the President. 6 The appellate jurisdiction of the President to review, reverse or modify the decision of the Secretary of
Interior and Local Government does not carry with it the power to grant executive clemency. Neither does the Local Government
Code expressly vest upon the President the power to commute or lift the administrative sanctions imposed upon erring, local
elective officials after the decision has become final.

The suspension of private respondent Ocampo III for ninety (90) days was imposed after
investigation and hearing of the complaint against him. The decision of suspension was
rendered after a finding by the Secretary of Interior and Local Government that private
respondent had committed and which was manifestly and grossly disadvantageous to the
Provincial Government of Tarlac. Thus, the suspension meted o to private respondent is
entirely distinct and separate from preventive suspension imposed on local elective officials
prior the final determination of the complaint filed against them, which is limited to only sixty
(60) days under the Local Government Code. A preventive suspension may be imposed after
issues have been joined and before the termination of the case when there is reasonable
ground to believe that respondent had committed the act complained of and the evidence of
culpability is strong, when the gravity of the offense warrants such preventive suspension; or
when the continuance in office of the respondent could influence the witnesses or pose a
threat to the safe and integrity of the records and other evidence. 7

In contrast, the administrative sanction of suspension imposed after the case has been heard
is subject to the limitation that it must not exceed the unexpired term of the respondent nor bar
the respondent from an elective public office for as long as he meets the qualifications
required by law. 8 Considering that private respondent's suspension was not a preventive one but a punitive sanction, the
limitation of sixty (60) days does not apply.

At the time the questioned grant of executive clemency was issued by respondent Secretary
to private respondent, a motion for reconsideration by private respondent Ocampo III was
pending. Assuming (without admitting) that the constitutional power of the President to grant
executive clemency extends to administrative sanctions imposed in an administrative
proceeding such reduction of the period of suspension of private respondent
was premature under the circumstances. Had respondent Secretary, acting for the President,
really believed that the origin 90-day period of suspension imposed upon private respondent
was too harsh, the President could have modified the imposed penalty by reducing the same
or entirely lifting such suspension in resolving the pending motion for reconsideration.
Furthermore, private respondent had already served eighty one (81) days out of the 90-day
suspension when the executive clemency was extended. With only nine (9) days left
unserved of the suspension imposed, the reason behind the grant of such executive
clemency to private respondent appears dubious, if not entirely whimsical.

It is the contention of private respondent that the reduction of his suspension was granted in
accordance with the Constitution. I disagree. It is my opinion that the constitutional grant of
power to the President to accord executive clemency, does not extend to administrative
sanctions imposed, in an administrative proceeding. Sec. 19, Art. VII of the 1987 Constitution
clearly provides that

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress. (Emphasis supplied)
The philosophy behind the grant of power to the President to grant executive clemency is
founded on the recognition that human institutions are imperfect and that there are infirmities,
deficiencies or flaws in the administration of justice. The power exists as an instrument or
means for correcting these infirmities and also for mitigating whatever harshness might be
generated by a too strict an application of the law. 9 This principle applies to all criminal offenses committed
against the state.

Pardon is an act of grace proceeding from the power entrusted with the execution of the laws,
which exempts the individual on whom it is bestowed from the punishment the law inflicts for a
crime he has committed. It is a voluntary act of the sovereign, granting outright remission of
guilt and declaring record that a particular individual is to be relieved of the legal
consequences of a particular crime. 10 Amnesty commonly d notes a general pardon to rebels for their treason or
other high political offenses, or the forgiveness which one sovereign grants to the subjects of another, who have offended by some
breach the law of nations. 11

A commutation of sentence is the reduction of penalty imposed 12 while reprieve is defined as the
temporary suspension of the execution of a sentence, especially of a sentence of death. 13 The object of commutation of sentence
is the rehabilitation the criminal offender. 14 The law of respite or reprieve appeal to apply only to capital sentences. 15

From the foregoing definitions of the different forms by which the President may exercise the
power to grant executive clemency, it is plainly evident that the intention of the Constitution is
to empower and enable the President to afford relief from enforcement of the criminal law
which imposes penalty and which appears unduly harsh. However, the President's pardoning
power cannot be used to release or destroy the civil rights or remedies of private
individuals, 16 or to relieve against private obligations, civil penalties and forfeitures, or an order or judgment in a civil action or
proceeding, or an administrative proceeding. 17

In order that the President may be able to exercise the power to commute or remove
administrative penalties or disabilities in an administrative proceeding for violation of the Local
Government Code, such power must be expressly provided for by law. It may not just be
inferred from the President's authority to exercise general supervision over local governments
nor from the President's power of control over the acts of the Secretary of Interior and Local
Government.

In the case at bar, private respondent entered into and executed a loan agreement with a
non-stock and non-profit organization known as Lingkod Tarlac Foundation, Inc. without
instituting adequate safeguards in the loan document, without a time frame for repayments,
reasonable repayment schedule and security or surety for the amount of the loan. Such act of
private respondent was found by the Secretary of Interior and Local Government as
manifestly and grossly disadvantageous to the Provincial Government of Tarlac, amounting to
serious neglect of duty and/or abuse of authority, punishable by suspension or removal under
Sec. 60 of the Local Government Code.

The administrative sanction of suspension imposed upon private respondent does not affect
the criminal complaint also filed against him before the Office of the Ombudsman for violation
of the Anti-Graft Law (Rep. Act 3019). The administrative finding of the Secretary of Interior
and Local Government, as affirmed by the Office of the President, that private respondent had
committed neglect of duty and/or abuse of authority while in office, was not by virtue of a
criminal proceeding. Thus, it cannot be said that there was a criminal conviction of the private
respondent by final judgment. Nor can it be said that the disciplinary action suspending
private respondent is an execution and/or enforcement of the criminal laws of the land.
Therefore, the President's power to grant executive clemency is not applicable or even
relevant in the case at bar.
From the deliberations of the Constitutional Commission which drafted the 1987
Constitution, it is clear that the intention of the framers of the fundamental law was to extend
to the President the power to grant pardons, reprieves, or commutations in cases involving
criminal offenses, which include violations of the Anti-Graft Law. There is no indication at all
that such power to grant executive clemency by the President may be extended to
administrative sanctions imposed in an administrative proceeding. In this connection, it is
timely to once more re-state that in a constitutional republic, such as ours, sovereignty resides
in the people and all government authority emanates from them. The people, through the
Constitution, have delegated to the President and other institutions of government certain
powers and those not delegated remain with the people. The President, in the Constitution,
has been delegated the power to grant reprieves, commutations and pardons "after conviction
by final judgment". This power can not be stretched even by fiction or imagination to include
the authority to grant similar reprieves, commutations or pardons over sanctions in
administratives proceedings.

ACCORDINGLY, I vote to annul the resolution of the respondent Executive Secretary dated
15 May 1991, as having been issued clearly in excess of jurisdiction or with grave abuse or
discretion amounting to lack or excess of jurisdiction.

# Separate Opinions

CRUZ, J., dissenting:

I concur in the result and would s the challenged resolution of May 18, 1991, on the basis only
of the Fresident's control power. I think the discussion of the pardoning power is unnecessary
and may even be misleading as theponencia itself says that it was not by virtue thereof that
the private respondent's penalty was reduced. The correct approach, if I may spectfully
suggest it, is to uphold the resolution solely on strength of the President's power of "control of
all the executive departments, bureaus and offices" under Article VII, Sect 17, of the
Constitution.

We have held in many cases that a Cabinet member is an alter ego of the President whose
acts may be affirmed, modified reversed by the latter in his discretion. (Villena v. Sec. of
Interior, 67 Phil. 451; Lacson-Magallanes v. Pao, 21 SC 895; Gascon v. Arroyo, 178 SCRA
582; De Leon v. Carpio, 1 SCRA 457). What happened in this case was that President Aquino
saw fit to amend the decision rendered by the Secretary of Local Government on September
21, 1990, by reducing 90-day suspension imposed on Gov. Ocampo. The President had the
authority to do this, and she could exercise it through Executive Secretary. His act, not having
been "reprobated disauthorized" by her, is presumed to be the act of the Preside herself.

The Court is not concerned with the wisdom of that act, on its legality. I believe the act is legal
but reserve judgment on its wisdom.

PADILLA, J., dissenting:

I vote to grant the petition which seeks to annul the 15 May 1991 resolution of the Office of the
President, for the reason that the respondent Executive Secretary, presumably acting on
behalf of the President, had acted in excess of his jurisdiction in granting executive clemency
to private respondent Ocampo III by reducing the ninety-day suspension imposed upon him to
the period he had already served.

Under the Local Government Code (BP 337), the law in force at the time material to this
case, the authority of the President over local governments is one of general supervision only,
to ensure that local affairs are administered according law. General supervision over local
governments includes the authority to order an investigation of the conduct of local officials
whenever necessary. 1 The 1987 Constitution as well as the Administrative Code of 1987 also grants to the President the
power of general supervision over local governments. 2

In taking disciplinary action against local elective officials, the President has no inherent
power to suspend or remove them unless authorized by law and on grounds set forth by the
latter. 3 Section 60 of the Local Government Code 4enumerates the acts for which an elective local official may be suspended or
removed. The Secretary of Interior and Local Government is given the authority to try complaints filed against any elective city or
provincial official. 5 The decision of removal or suspension by the Secretary of Interior and Local Government is appealable to the
Office of the President. 6 The appellate jurisdiction of the President to review, reverse or modify the decision of the Secretary of
Interior and Local Government does not carry with it the power to grant executive clemency. Neither does the Local Government
Code expressly vest upon the President the power to commute or lift the administrative sanctions imposed upon erring, local
elective officials after the decision has become final.

The suspension of private respondent Ocampo III for ninety (90) days was imposed after
investigation and hearing of the complaint against him. The decision of suspension was
rendered after a finding by the Secretary of Interior and Local Government that private
respondent had committed and which was manifestly and grossly disadvantageous to the
Provincial Government of Tarlac. Thus, the suspension meted o to private respondent is
entirely distinct and separate from preventive suspension imposed on local elective officials
prior the final determination of the complaint filed against them, which is limited to only sixty
(60) days under the Local Government Code. A preventive suspension may be imposed after
issues have been joined and before the termination of the case when there is reasonable
ground to believe that respondent had committed the act complained of and the evidence of
culpability is strong, when the gravity of the offense warrants such preventive suspension; or
when the continuance in office of the respondent could influence the witnesses or pose a
threat to the safe and integrity of the records and other evidence. 7

In contrast, the administrative sanction of suspension imposed after the case has been heard
is subject to the limitation that it must not exceed the unexpired term of the respondent nor bar
the respondent from an elective public office for as long as he meets the qualifications
required by law. 8 Considering that private respondent's suspension was not a preventive one but a punitive sanction, the
limitation of sixty (60) days does not apply.

At the time the questioned grant of executive clemency was issued by respondent Secretary
to private respondent, a motion for reconsideration by private respondent Ocampo III was
pending. Assuming (without admitting) that the constitutional power of the President to grant
executive clemency extends to administrative sanctions imposed in an administrative
proceeding such reduction of the period of suspension of private respondent
was premature under the circumstances. Had respondent Secretary, acting for the President,
really believed that the origin 90-day period of suspension imposed upon private respondent
was too harsh, the President could have modified the imposed penalty by reducing the same
or entirely lifting such suspension in resolving the pending motion for reconsideration.
Furthermore, private respondent had already served eighty one (81) days out of the 90-day
suspension when the executive clemency was extended. With only nine (9) days left
unserved of the suspension imposed, the reason behind the grant of such executive
clemency to private respondent appears dubious, if not entirely whimsical.

It is the contention of private respondent that the reduction of his suspension was granted in
accordance with the Constitution. I disagree. It is my opinion that the constitutional grant of
power to the President to accord executive clemency, does not extend to administrative
sanctions imposed, in an administrative proceeding. Sec. 19, Art. VII of the 1987 Constitution
clearly provides that

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress. (Emphasis supplied)

The philosophy behind the grant of power to the President to grant executive clemency is
founded on the recognition that human institutions are imperfect and that there are infirmities,
deficiencies or flaws in the administration of justice. The power exists as an instrument or
means for correcting these infirmities and also for mitigating whatever harshness might be
generated by a too strict an application of the law. 9 This principle applies to all criminal offenses committed
against the state.

Pardon is an act of grace proceeding from the power entrusted with the execution of the laws,
which exempts the individual on whom it is bestowed from the punishment the law inflicts for a
crime he has committed. It is a voluntary act of the sovereign, granting outright remission of
guilt and declaring record that a particular individual is to be relieved of the legal
consequences of a particular crime. 10 Amnesty commonly d notes a general pardon to rebels for their treason or
other high political offenses, or the forgiveness which one sovereign grants to the subjects of another, who have offended by some
breach the law of nations. 11

A commutation of sentence is the reduction of penalty imposed 12 while reprieve is defined as the
temporary suspension of the execution of a sentence, especially of a sentence of death. 13 The object of commutation of sentence
is the rehabilitation the criminal offender. 14 The law of respite or reprieve appeal to apply only to capital sentences. 15

From the foregoing definitions of the different forms by which the President may exercise the
power to grant executive clemency, it is plainly evident that the intention of the Constitution is
to empower and enable the President to afford relief from enforcement of the criminal law
which imposes penalty and which appears unduly harsh. However, the President's pardoning
power cannot be used to release or destroy the civil rights or remedies of private
individuals, 16 or to relieve against private obligations, civil penalties and forfeitures, or an order or judgment in a civil action or
proceeding, or an administrative proceeding. 17

In order that the President may be able to exercise the power to commute or remove
administrative penalties or disabilities in an administrative proceeding for violation of the Local
Government Code, such power must be expressly provided for by law. It may not just be
inferred from the President's authority to exercise general supervision over local governments
nor from the President's power of control over the acts of the Secretary of Interior and Local
Government.

In the case at bar, private respondent entered into and executed a loan agreement with a
non-stock and non-profit organization known as Lingkod Tarlac Foundation, Inc. without
instituting adequate safeguards in the loan document, without a time frame for repayments,
reasonable repayment schedule and security or surety for the amount of the loan. Such act of
private respondent was found by the Secretary of Interior and Local Government as
manifestly and grossly disadvantageous to the Provincial Government of Tarlac, amounting to
serious neglect of duty and/or abuse of authority, punishable by suspension or removal under
Sec. 60 of the Local Government Code.

The administrative sanction of suspension imposed upon private respondent does not affect
the criminal complaint also filed against him before the Office of the Ombudsman for violation
of the Anti-Graft Law (Rep. Act 3019). The administrative finding of the Secretary of Interior
and Local Government, as affirmed by the Office of the President, that private respondent had
committed neglect of duty and/or abuse of authority while in office, was not by virtue of a
criminal proceeding. Thus, it cannot be said that there was a criminal conviction of the private
respondent by final judgment. Nor can it be said that the disciplinary action suspending
private respondent is an execution and/or enforcement of the criminal laws of the land.
Therefore, the President's power to grant executive clemency is not applicable or even
relevant in the case at bar.

From the deliberations of the Constitutional Commission which drafted the 1987
Constitution, it is clear that the intention of the framers of the fundamental law was to extend
to the President the power to grant pardons, reprieves, or commutations in cases involving
criminal offenses, which include violations of the Anti-Graft Law. There is no indication at all
that such power to grant executive clemency by the President may be extended to
administrative sanctions imposed in an administrative proceeding. In this connection, it is
timely to once more re-state that in a constitutional republic, such as ours, sovereignty resides
in the people and all government authority emanates from them. The people, through the
Constitution, have delegated to the President and other institutions of government certain
powers and those not delegated remain with the people. The President, in the Constitution,
has been delegated the power to grant reprieves, commutations and pardons "after conviction
by final judgment". This power can not be stretched even by fiction or imagination to include
the authority to grant similar reprieves, commutations or pardons over sanctions in
administratives proceedings.

ACCORDINGLY, I vote to annul the resolution of the respondent Executive Secretary dated
15 May 1991, as having been issued clearly in excess of jurisdiction or with grave abuse or
discretion amounting to lack or excess of jurisdiction.

# Footnotes

* Retired on October 8, 1991.

1 Local Government Code (BP 337), Sec. 14, par. (1).

2 1987 Constitution, Art. X, Sec. 4-1 1987 Administrative Code, Book III, Title 1, Chapter 6,
Section 18.

3 Lacson vs. Roque, 92 Phil. 452.

4 Sec. 60. Suspension and Removal; Grounds. An elective local official may be suspended
or removed from office on any of the following grounds committed while in office:

(1) Disloyalty to the Republic of the Philippines;

(2) Culpable violation of the Constitution;

(3) Dishonesty, oppression, misconduct in ofuce and neglect of duty;

(4) Commission of any offense involving moral turpitude;

(5) Abuse of authority;

(6) Unauthorized absence for three consecutive months.

5 Local Government Code, Section 61.

6 Ibid, Section 66.

7 Local Government Code, Sec. 63.

8 Ibid., Sec. 65.

9 Comment by Joaquin G. Bemas, S.J. on the Revised 1973 Philippine Constitution, p. 228,
Part 1, 1983 Edition.

10 67A C.J.S. Pardon and Parole S 3.

11 Villa vs. Allen, 2 Phil. 436.

12 Cabantay vs. Wolfe, 6 Phil. 276.

13 Philippine Law Dictionary by Moreno, p. 534, Second Edition.

14 67A C.J.S., Pardon and Parole S 3.

15 Director of Prisons vs. Judge of First Instance, 29 Phil. 292.

16 67A C.J.S. S 10, citing In re Nevitt, Mo. 117 F. 448, 117 Federal Reporter 448.

17 Ibid, citing Theodore vs. Department of Liquor Control, 527 S.W. 2d 350.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 76872 July 23, 1987

WILFREDO TORRES Y SUMULONG, petitioner,

vs.
HON. NEPTALI A. GONZALES, THE CHAIRMAN, BOARD OF PARDONS AND PAROLE,
and THE DIRECTOR, BUREAU OF PRISONS, respondents.

FELICIANO, J.:

This is an original petition for habeas corpus filed on behalf of petitioner Wilfredo S. Torres,
presently confined at the National Penitentiary in Muntinlupa. We issued the writ and during
the hearing and from the return filed by the respondents through the Solicitor General, and
other pleadings in this case, the following facts emerged:

1. Sometime before 1979 (no more specific date appears in the records before this Court),
petitioner was convicted by the Court of First Instance of Manila of the crime of estafa (two
counts) and was sentenced to an aggregate prison term of from eleven (11) years, ten (10)
months and twenty-two (22) days to thirty-eight (38) years, nine (9) months and one (1) day,
and to pay an indemnity of P127,728.75 (Criminal Cases Nos. 68810, 91041 and F-138107).
These convictions were affirmed by the Court of Appeals (CA-G.R. Nos. 14773-CR and
17694-CR). The maximum sentence would expire on 2 November 2000.1

2. On 18 April 1979, a conditional pardon was granted to the petitioner by the President of the
Philippines on condition that petitioner would "not again violate any of the penal laws of the
Philippines. Should this condition be violated, he will be proceeded against in the manner
prescribed by law."2 Petitioner accepted the conditional pardon and was consequently
released from confinement.

3. On 21 May 1986, the Board of Pardons and Parole (the "Board") resolved to recommend to
the President the cancellation of the conditional pardon granted to the petitioner. In making its
recommendation to the President, the Board relied upon the decisions of this Court in Tesoro
vs. Director of Prisons (68 Phil. 154 [1939]) and Espuelas vs. Provincial Warden of
Bohol (108 Phil. 356 [1960]). The evidence before the Board showed that on 22 March 1982
and 24 June 1982, petitioner had been charged with twenty counts of estafa in Criminal
Cases Nos. Q-19672 and Q-20756, which cases were then (on 21 May 1986) pending trial
before the Regional Trial Court of Rizal (Quezon City). The record before the Board also
showed that on 26 June 1985, petitioner had been convicted by the Regional Trial Court of
Rizal (Quezon City) of the crime of sedition in Criminal Case No. Q-22926; this conviction was
then pending appeal before the Intermediate Appellate Court. The Board also had before it a
letter report dated 14 January 1986 from the National Bureau of Investigation ("NBI"),
addressed to the Board, on the petitioner. Per this letter, the records of the NBI showed that a
long list of charges had been brought against the petitioner during the last twenty years for a
wide assortment of crimes including estafa, other forms of swindling, grave threats, grave
coercion, illegal possession of firearms, ammunition and explosives, malicious mischief,
violation of Batas Pambansa Blg. 22, and violation of Presidential Decree No. 772 (interfering
with police functions). Some of these charges were Identified in the NBI report as having been
dismissed. The NBI report did not purport to be a status report on each of the charges there
listed and Identified.

4. On 4 June 1986, the respondent Minister of Justice wrote to the President of the Philippines
informing her of the Resolution of the Board recommending cancellation of the conditional
pardon previously granted to petitioner.

5. On 8 September 1986, the President cancelled the conditional pardon of the petitioner.

6. On 10 October 1986, the respondent Minister of Justice issued "by authority of the
President" an Order of Arrest and Recommitment against petitioner. The petitioner was
accordingly arrested and confined in Muntinlupa to serve the unexpired portion of his
sentence.

Petitioner now impugns the validity of the Order of Arrest and Recommitment. He claims that
he did not violate his conditional pardon since he has not been convicted by final judgment of
the twenty (20) counts of estafa charged in Criminal Cases Nos. Q-19672 and Q-20756 nor of
the crime of sedition in Criminal Case No. Q-22926.3Petitioner also contends that he was not
given an opportunity to be heard before he was arrested and recommitted to prison, and
accordingly claims he has been deprived of his rights under the due process clause of the
Constitution.

The issue that confronts us therefore is whether or not conviction of a crime by final judgment
of a court is necessary before the petitioner can be validly rearrested and recommitted for
violation of the terms of his conditional pardon and accordingly to serve the balance of his
original sentence.

This issue is not novel. It has been raised before this Court three times in the past. This Court
was first faced with this issue in Tesoro Director of Prison.4 Tesoro, who had been convicted
of the crime of falsification of public documents, was granted a parole by the then
Governor-General. One of the conditions of the parole required the parolee "not [to] commit
any other crime and [to] conduct himself in an orderly manner."5 Two years after the grant of
parole, Tesoro was charged before the Justice of the Peace Court of San Juan, Rizal, with the
crime of adultery said to have been committed with the wife of Tesoro's brother-in-law. The
fiscal filed with the Court of First Instance the corresponding information which, however, was
dismissed for non-appearance of the complainant. The complainant then went before the
Board of Indeterminate Sentence and charged Tesoro with violation of the conditions of his
parole. After investigation by the parole officer, and on the basis of his report, the Board
recommended to the President of the Philippines the arrest and recommitment of the
petitioner. Tesoro contended, among other things, that a "judicial pronouncement to the effect
that he has committed a crime" is necessary before he could properly be adjudged as having
violated his conditional parole.

Addressing this point, this Court, speaking through then Mr. Justice Moran, held that the
determination of whether the conditions of Tesoro's parole had been breached rested
exclusively in the sound judgment of the Governor-General and that such determination
would not be reviewed by the courts. As Tesoro had consented to place his liberty on parole
upon the judgment of the power that had granted it, we held that "he [could not] invoke the aid
of the courts, however erroneous the findings may be upon which his recommitment was
ordered."6 Thus, this Court held that by accepting the terms under which the parole had been
granted, Tesoro had in effect agreed that the Governor-General's determination (rather than
that of the regular courts of law) that he had breached one of the conditions of his parole by
committing adultery while he was conditionally at liberty, was binding and conclusive upon
him. In reaching this conclusion, this Court relied upon Section 64 (i) of the Revised
Administrative Code which empowered the Governor-General

to grant to convicted prisoners reprieves or pardons, either plenary or partial, conditional or

unconditional; to suspend sentences without parole, remit fines, and order the discharge of
any convicted person upon parole, subject to such conditions as he may impose; and
to authorize the arrest and recommitment of any such person who, in his judgment, shall fail
to comply with the condition or conditions, of his pardon, paroleor suspension of sentence.
(Emphasis supplied)

In Sales vs. Director of Prisons,7 the petitioner had been convicted of the crime of frustrated
murder. After serving a little more than two years of his sentence, he was given a conditional
pardon by the President of the Philippines, "the condition being that he shall not again violate
any of the penal laws of the Philippines and that, should this condition be violated, he shall be
proceeded against in the manner prescribed by law."8 Eight years after the grant of his
conditional pardon, Sales was convicted of estafa and sentenced to three months and eleven
days ofarresto mayor. He was thereupon recommitted to prison to serve the unexpired portion
of his original sentence. Sales raised before this Court two principal contentions. Firstly, he
argued that Section 64 (i) of the Revised Administrative Code had been repealed by Article
159 of the Revised Penal Code. He contended, secondly, that Section 64 (i) was in any case
repugnant to the due process clause of the Constitution (Article III [1], 1935 Constitution). This
Court, through Mr. Justice Ozaeta speaking for the majority, rejected both contentions of
Sales.

Sales held, firstly, that Article 159 of the Revised Penal Code did not repeal Section 64 (i)
Revised Administrative Code. It was pointed out that Act No. 4103, the Indeterminate
Sentence Law, which was enacted subsequent to the Revised Penal Code, expressly
preserved the authority conferred upon the President by Section 64. The Court also held that
Article 159 and Section 64 (i) could stand together and that the proceeding under one
provision did not necessarily preclude action under the other. Sales held, secondly, that
Section 64 (i) was not repugnant to the constitutional guarantee of due process. This Court in
effect held that since the petitioner was a convict "who had already been seized in a
constitutional was been confronted by his accusers and the witnesses against him-, been
convicted of crime and been sentenced to punishment therefor," he was not constitutionally
entitled to another judicial determination of whether he had breached the condition of his
parole by committing a subsequent offense. Thus:

[a] statute [like Section 64 (i)] supervenes to avoid the necessity for any action by the courts in
the premises. The executive clemency under it is extended upon the conditions named in it,
and he accepts it upon those conditions. One of these is that the governor may withdraw his
grace in a certain contingency, and another is that the governor shall himself determine when
that contingency has arisen. It is as if the convict, with full competency to bind himself in the
premises, had expressly contracted and agreed, that, whenever the governor should
conclude that he had violated the conditions of his parole, an executive order for his arrest
and remandment to prison should at once issue, and be conclusive upon him. 9

In Espuelas vs. Provincial Warden of Bohol,10 the petitioner had been convicted of the crime
of inciting to sedition. While serving his sentence, he was granted by the President a
conditional pardon "on condition that he shall not again violate any of the penal laws of the
Philippines."11 Espuelas accepted the conditional pardon and was released from confinement.
Sometime thereafter, he was convicted by the Justice of the Peace Court in Tagbilaran, Bohol,
of the crime of usurpation of authority. He appealed to the Court of First Instance. Upon
motion of the provincial fiscal, the Court of First Instance dismissed the case provisionally, an
important prosecution witness not having been available on the day set for trial. A few months
later, upon recommendation of the Board of Pardons and Parole, the President ordered his
recommitment to prison to serve the unexpired period of his original sentence.

The Court in Espuelas reaffirmed the continuing force and effect of Section 64 (i) of the
Revised Administrative Code. This Court, quoting Tesoro and Sales, ruled that:

Due process is not necessarily judicial The appellee had had his day in court and been
afforded the opportunity to defend himself during his trial for the crime of inciting to sedition,
with which he was charged, that brought about or resulted in his conviction, sentence and
confinement in the penitentiary. When he was conditionally pardoned it was a generous
exercise by the Chief Executive of his constitutional prerogative.The acceptance thereof by
the convict or prisoner carrie[d] with it the authority or power of the Executive to determine
whether a condition or conditions of the pardon has or have been violated. To no other
department of the Government [has] such power been intrusted. 12

The status of our case law on the matter under consideration may be summed up in the
following propositions:

1. The grant of pardon and the determination of the terms and conditions of a conditional
pardon are purely executive acts which are not subject to judicial scrutiny.

2. The determination of the occurrence of a breach of a condition of a pardon, and the proper
consequences of such breach, may be either a purely executive act, not subject to judicial
scrutiny under Section 64 (i) of the Revised Administrative Code; or it may be a judicial act
consisting of trial for and conviction of violation of a conditional pardon under Article 159 of the
Revised Penal Code. Where the President opts to proceed under Section 64 (i) of the
Revised Administrative Code, no judicial pronouncement of guilt of a subsequent crime is
necessary, much less conviction therefor by final judgment of a court, in order that a convict
may be recommended for the violation of his conditional pardon.

3. Because due process is not semper et unique judicial process, and because the
conditionally pardoned convict had already been accorded judicial due process in his trial and
conviction for the offense for which he was conditionally pardoned, Section 64 (i) of the
Revised Administrative Code is not afflicted with a constitutional vice.

We do not believe we should depart from the clear and well understood rules and doctrine on
this matter.

It may be emphasized that what is involved in the instant case is not the prosecution of the
parolee for a subsequent offense in the regular course of administration of the criminal
law. What is involved is rather the ascertainment of whether the convict has breached his
undertaking that he would "not again violate any of the penal laws of the Philippines" for
purposes of reimposition upon him of the remitted portion of his original sentence. The
consequences that we here deal with are the consequences of an ascertained breach of the
conditions of a pardon. A convict granted conditional pardon, like the petitioner herein, who is
recommitted must of course be convicted by final judgment of a court of the subsequent crime
or crimes with which he was charged before the criminal penalty for such subsequent
offense(s) can be imposed upon him. Again, since Article 159 of the Revised Penal Code
defines a distinct, substantive, felony, the parolee or convict who is regarded as having
violated the provisions thereof must be charged, prosecuted and convicted by final judgment
before he can be made to suffer the penalty prescribed in Article 159.1avvph i1

Succinctly put, in proceeding against a convict who has been conditionally pardoned and who
is alleged to have breached the conditions of his pardon, the Executive Department has two
options: (i) to proceed against him under Section 64 (i) of the Revised Administrative Code; or
(ii) to proceed against him under Article 159 of the Revised Penal Code which imposes the
penalty of prision correccional, minimum period, upon a convict who "having been granted
conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon."
Here, the President has chosen to proceed against the petitioner under Section 64 (i) of the
Revised Administrative Code. That choice is an exercise of the President's executive
prerogative and is not subject to judicial scrutiny.

WHEREFORE, this Petition is hereby DISMISSED. No pronouncement as to costs.

SO ORDERED.

Teehankee, C.J., Fernan, Melencio-Herrera, Gutierrez, Jr., Gancayco, Padilla, Bidin,

Sarmiento and Cortes, JJ., concur.
Yap, J., is on leave.
Narvasa, J., took no part.

The Lawphil Project - Arellano Law Foundation

Separate Opinions

CRUZ, J., dissenting:

The petitioner challenges his recommitment, claiming he has not violated the condition of his
pardon "that he shall not again violate any of the penal laws of the Philippines." The
government bases its stand on the case ofEspuelas v. Provincial Warden of Bohol, 108 Phil.
353, where it was held, in connection with a similar condition, that mere commission of a
crime, as determined by the President, was sufficient to justify recommitment. Conviction was
considered not necessary.

I would grant the petition.

There is no question that the petitioner is facing a long list of criminal charges, but that
certainly is not the issue. The point is that, as many as such charges may be, none of them so
far has resulted in a final conviction, without which he cannot be recommitted under the
condition of his pardon.

Mere accusation is not synonymous with guilt. (People v. Dramayo, 42 SCRA 59). A prima
facie case only justifies the filing of the corresponding information, but proof beyond
reasonable doubt is still necessary for conviction. Manifestly, an allegation merely accuses
the defendant of a crime: it is the conviction that makes him a criminal. In other words, a
person is considered to have committed a crime only if he is convicted thereof, and this is
done not by his accuser but by the judge.
That this conviction must be pronounced by the judge and no other is too obvious a
proposition to be disputed. The executive can only allege the commission of crime and
thereafter try to prove it through indubitable evidence. If the prosecution succeeds, the court
will then affirm the allegation of commission in a judgment of conviction.

The current doctrine holds that, by virtue of Section 64(i) of the Revised Administrative Code,
the President may in his judgment determine whether the condition of the pardon has been
violated. I agree that the authority is validly conferred as long as the condition does not
involve the commission of a crime but, say, merely requires good behavior from the pardonee.
But insofar as it allows the President to determine in his judgment whether or not a crime has
been committed, I regard the authority as an encroachment on judicial functions.

Dissenting from the majority opinion in the case of Tesoro v. Director of Prisons, 68 Phil. 154,
Justice Pedro Concepcion declared:

I am of the opinion that the "commission" of a crime may only be determined upon the
"conviction" of the accused. It is not sufficient that a person be charged with having committed
a crime in order to consider that he is convicted thereof. His innocence is a legal presumption
which is overcome only by his conviction after he is duly and legally prosecuted. And the
courts of justice are the only branch of the government which has exclusive jurisdiction under
the law to make a pronouncement on the conviction of an accused.

Black defines "commission" as "doing or preparation; the performance of an act." (Groves v.

State, 116 Ga. 516). "Conviction," on the other hand, is "the result of a criminal trial which
ends in a judgment or sentence that the prisoner is guilty as charged." Continuing, he says,
"in ordinary parlance, the meaning of the word conviction is the finding by the jury of
a verdict that the accused is guilty. But, in legal parlance, it often denotes the final
judgment of the court." (Blaufus v. People, 69 N.Y., 109, 28 A-Rep. 148; Marino v. Hibbard,
243 Mass. 90). To convict is "to condemn after a judicial investigation " (p. 403). A convict is
"one who has been finally condemned by a court, one who has been adjudged guilty of a
crime or misdemeanor." (Molineur v. Collins, 177 N.Y., 395). Emphasis is mine.

In the instant case, the government does not deny that the petitioner has not been finally
convicted of any of the offenses imputed to him. There are several convictions by the lower
court, to be sure, but all of them are on appeal. From the judicial viewpoint, therefore, the
petitioner has, since accepting his conditional pardon not violated any of the penal laws of the
Philippines as to be subject to recommitment.

In the landmark case of United States v. Wilson, 7 Pet. (U.S.) 100, it was remarked that "a
conditional pardon is in force and substance a contract between the executive power of the
State and the person for whom it is granted." Once accepted, therefore, the stipulated
condition binds not only the pardonee, who must observe the same, but the State as well,
which can recommit the pardonee only if the condition is violated. Stated otherwise, the
condition is a limitation not only of the pardonee's conduct but also of the President's power of
recommitment, which can be exercised only if the condition is not observed.

Even if considered "an act of grace," declared this Court in Infante v. Provincial Warden of
Negros Occidental, 32 Phil. 311, "there is general agreement that limitations upon its
operation should be strictly construed (46 C.J. 1202) so that, where a conditional pardon is
susceptible of more than one interpretation, it is to be construed most favorably to the grantee
(39 Am. Jur. 564). "
I am for the reversal of Espuelas v. Provincial Warden of Bohol and the immediate release of
the petitioner on the ground that he has not violated the condition of his pardon.

Paras, J., dissents.

Footnotes

1
Resolution, dated 21 May 1986, of the Board of Pardons and Parole Rollo, p. 17.

2
Conditional Pardon; Rollo, p. 39.

3
By an instrument dated 28 January 1987, petitioner was granted by the President an
absolute pardon for his conviction for sedition. This instrument was apparently released much
later-i.e., sometime in March 1987.

4
68 Phil. 154 (1939).

5
68 Phil., at 157.

6
68 Phil., at 16 1.

7
87 Phil. 495 (1950).

8
87 Phil., at 493.

9
Underscoring supplied. The Court was here (87 Phil., at 496) quoting from Fuller v. State of
Alabama, 45 LRA 502.

10
108 Phil. 353 (1960).

11
108 Phil., at 355.

12
108 Phil., at 357-358; underscoring supplied.
 THIRD DIVISION

[G.R. No. 116512. March 7, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILLIAM O.

CASIDO @ MARIO, and FRANKLIN A.
ALCORIN @ ARMAN, accused-appellants.

RESOLUTION
DAVIDE, JR., J.:

In our Resolution of 30 July 1996, we ruled that the conditional pardons

granted in this case to accused-appellants William Casido and Franklin Alcorin
are void for having been extended on 19 January 1996 during the pendency of
their instant appeal, and disposed of the incident as follows:
WHEREFORE, the accused-appellants Urgent Motion To Withdraw
Appeal is hereby DENIED and the Bureau of Corrections is
DIRECTED to effect, with the support and assistance of the Philippine
National Police, the re-arrest of accused-appellants William Casido and
Franklin Alcorin who shall then, forthwith, be reconfined at the New
Bilibid Prisons in Muntinlupa, Metro Manila, both within sixty (60)
days from notice hereof, and to submit a report thereon within the same
period. In the meantime, further action on the appeal is suspended until
the re-arrest of the accused-appellants.
The Court further resolves to REQUIRE the officers of the Presidential
Committee for the Grant of Bail, Release, and Pardon to SHOW
CAUSE, within thirty (30) days from notice hereof, why they should
not be held in contempt of court for acting on and favorably
recommending approval of the applications for the pardon of the
accused-appellants despite the pendency of their appeal.
In a Comment for the members of the Presidential Committee for the Grant of
Bail, Release or Pardon (hereinafter Committee), dated 28 August 1996, two
members of the Committees Secretariat, namely, Nilo C. Mariano (Assistant Chief
Prosecutor) and Nestor J. Ballacillo (Solicitor in the Office of the Solicitor General),
submitted the following explanation in compliance with the above-mentioned
resolution:
1. In line with the confidence building measures of government, the
President on August 11, 1992 constituted the Presidential
 Committee for the Grant of Bail, Release or Pardon with the
Secretary of Justice as the Chairman and Secretary of National
Defense and the Secretary of the Interior and Local
Government as members with the directive to establish
guidelines for the grant of bail, release or pardon of persons
detained or convicted of crimes against national security and
public order and violations of the Articles of
War. Subsequently, membership to the Committee was
expanded to include the Chairman of the Commission on
Human Rights and a member of the defunct National
Unification Commission who was later on replaced by the
Presidential Adviser on the Peace Process.
2. On 9 December 1992, the President issued an amendment to the
guidelines incorporating therein a provision which
reads: Those charged, detained or convicted of common
crimes but who can establish by sufficient evidence that they
have actually committed any of the crimes/offenses
enumerated above may apply for possible grant of bail, release
or pardon under these guidelines.
3. Corollary to the constitution of the Committee, a Secretariat was
also constituted which was tasked to process and evaluate the
applications of those desiring to be granted pardon or
recommended for release or bail under the aforementioned
guidelines and which will recommend to the Committee those
who qualify under the guidelines.
4. The members of the Secretariat are representatives of the Office
of the Chief State Prosecutor, the Board of Pardons and Parole,
the Office of the Chief State Counsel, the Bureau of
Corrections, the Philippine National Police Legal Service, the
Judge Advocates Office-Armed Forces of the Philippines, the
Office of the Solicitor General, and the Commission on
Human Rights (Legal Services).
5. In the processing and evaluation of the applications for the grant
of pardon, release or bail, it was the agreement between the
Secretariat and counsels for the applicants who are usually the
lawyers of non-government organizations (NGOs), such as the
Task Force Detainees of the Philippines (TFDP), the Free
Legal Assistance Group (FLAG), the KAPATID, PAHRA,
among others, that simultaneous with the processing of the
 applications, motions for the withdrawal of the applicants
appeals must be filed by them with this Honorable Court.
6. With the arrangement, the processing and evaluation of the
applications for the grant of pardon, release or bail by the
committee resulted in the grant of conditional pardon to 123
applicants and absolute pardon to eight (8) applicants as of
June 27, 1994.
7. The applications for conditional pardon of the aforenamed
prisoners were recommended by the Committee to the
President for the grant of Conditional Pardon (after the
Secretariat had evaluated that the former committed the crimes
for which they had been charged in pursuit of their political
belief) per Memorandum dated May 25, 1995 and approved by
the President on December 29, 1995. The Conditional Pardon
paper was signed by the President on January 19, 1996 and the
subject prisoners (accused-appellants) were released by the
Bureau of Corrections on January 25, 1996.
8. Prior to their release, subject prisoners filed an Urgent Motion to
Withdraw Appeal which was received by the Supreme Court
on January 11, 1996. Unfortunately, the Committee failed to
verify first whether the counsel of the accused had also
withdrawn their appeal or that the NGO lawyers had filed in
their behalf a motion to Withdraw their Appeal. It was upon
the honest belief of the Secretariat that the NGO lawyers
would perform their agreed undertaking, that the Secretariat
indorsed the applications for conditional pardon of subject
prisoners for favorable action by the Committee, and thereafter
by the President.
9. There was no intention on the part of the Secretariat and the
Presidential Committee to violate Section 19, Article VII, of
the Constitution, but that what happened was a clear
misappreciation of fact.
10. The Secretariat/Committee was only prompted to act, as they
did, in their sincere and zealous effort to take part in the
governments confidence building measure geared towards
achieving peace and national reconciliation. To avoid
repetition of grant of presidential clemency under similar
circumstances, the Secretariat/Committee will require
applicants for any executive relief to show proof that their
 appeal, if any, has been withdrawn and the withdrawal thereof
has been also approved before acting on their applications as
directed by President Fidel V. Ramos in his handwritten
instructions to the Presidential Committee, thru the Executive
Secretary, and upon recommendation of Chief Presidential
Legal Counsel Rene Cayetano, for the Presidential Committee
to exercise better diligence. (See Annex 1, and its
attachments).
11. The undersigned most respectfully pray for the kind indulgence
and understanding of this Honorable Court on the matter.
On 18 September 1996, the Court required Hon. Nilo C. Mariano and Hon.
Nestor J. Ballacillo to submit to this Court a list of the members of the Secretariat
who participated in the deliberations on the accused-appellants application for
pardon and recommended the grant thereof, together with a certified true copy of
the agreement between the Secretariat and the counsel for the applicants for
pardon regarding the filing with the appropriate courts of motions for the
withdrawal of appeals pending therein. Their Compliance, dated 23 October 1996,
stated as follows:
2. A review of the records of the Secretariat indicates that initially
or as of January, 1993, the members of the Secretariat were:
Undersecretary Ramon S. Esquerra - DOJ
Assistant Chief State Nilo C. Mariano - DOJ
Executive Director Artemio C. Aspiras - DOJ
State Counsel Teresita L. de Castro - DOJ
Director Eriberto Misa, Jr. -Bureau of Pardon Corrections
Edgardo Dayao - JAGO
Pedro Abella - PNP
Samuel M. Soriano, Jr. - CHR
Imelda B. Devila - National Unification Commission
Nestor J. Ballacillo - OSG
3. On February 9-11, 1995, a Working Group was constituted to
conduct and expeditious review of the cases of prisoners in
the New Bilibid Prison who are alleged to have committed
crime in pursuit of political objectives (Resolution No. 1, of
the Secretariat Working Group).
4. For this purpose, the Working Group consisting of State
Prosecutor Alberto Vizcocho of the Department of Justice
(DOJ), Commissioner Mercedes V. Contreras of the
Commission on Human Rights (CHR) and Andrei Bon C.
 Tagum of the Office of the Presidential Adviser on the Peace
Process (OPAPP) convened for three days or February 9-11,
1995 to review the cases of the political prisoners.
5. Among the cases reviewed by the Working Group were those of
appellants Franklin Alcorin y Alparo and William Casido y
Balcasay.
6. After the review of the cases, the Working Group issued
Resolution No. 1, which states among others that the prisoners
[including Alcorin and Casido] be recommended to the
Secretariat of the Presidential Committee for the Grant of
Conditional Pardon in view of a determination that they were
charged or convicted of crimes that may have been committed
in pursuit of political objectives. (A copy of Resolution No. 1
is attached hereto as Annex 1).
7. The recommendations on the political prisoners listed in
Resolution No. 1 by the Working Group as well as the
recommendations made by the Secretariat were based on the
undertaking of those representing the political prisoners,
particularly the Non-Government Organizations (NGOs) such
as, among others, the Task Force Detainees of the Philippines
(TFDP), the Free Legal Assistance Group (FLAG), KAPATID
and PAHRA who promised that the corresponding
withdrawals of appeal would be filed with this Honorable
Court and other Courts concerned. This undertaking of the
NGOs was however verbal and not made in writing.
8. In recommending the grant of conditional pardon to Alcorin and
Casido, the members of the Secretariat Working Group acted
in good faith and did not disregard the Resolutions of this
Honorable Court in People vs. Hino, Jr., G.R. No. 110035,
January 31, 1995 and People vs. Salle, (250 SCRA 582,
December 4, 1995). At the time they made the
recommendations or the Working Group issued Resolution No.
1, the members of the Secretariat and the Working Group were
not aware of the Hino and Salle rulings. Moreover, at the time
the cases were being reviewed, the members of the Secretariat,
were pressed on by members of the NGOs to act on certain
applications for pardon or provisional release with dispatch. In
turn, they made it clear to those following up the applications
 that the appropriate withdrawal of appeals should be filed so
that the applications could be acted upon.
9. Believing in good faith that the promise or undertaking of those
who followed up the applications for pardon of Alcorin and
Casido would be complied with as promised, the members of
the Secretariat Working Group did not secure the written
commitment for the withdrawal of the appeal by accused
Alcorin and Casido before their applications for pardon were
reviewed.
Earlier, or on 1 October 1996, the Court received from Hon. Manuel C.
Herrera, Chairman of the National Amnesty Commission, a letter, dated 26
September 1996 addressed to Mr. Justice Hilario G. Davide, Jr., wherein the
former informed the Court that the applications for amnesty of accused-appellants
Franklin A. Alcorin and William O. Casido were favorably acted upon by the
National Amnesty Commission on 22 February 1996. The body of the letter reads:
We refer to a newspaper article found in the Philippine Daily
Inquirers August 1, 1996 issue. Please be informed that on February 22,
1996, the National Amnesty Commission (hereinafter the NAC)
favorably acted on the applications for amnesty of Franklin A. Alcorin
and William O. Casido.
The NAC was created under Proclamation No. 347 by President Fidel V.
Ramos on March 25, 1994, to receive, process, and decide on
applications for amnesty. Under Proclamation No. 347 a grant of
amnesty shall carry with it the extinguishment of any criminal liability
for acts committed by the grantee in pursuit of his or her political
beliefs. It also carries with it the restoration of civil or political rights
that may have been suspended or lost by virtue of a criminal conviction.
In the course of our deliberations, the NAC found that the applicants are
indeed confirmed members of the CPP/NPA/NDF whose killing of
Victoriano Mapa was committed in pursuit of their political beliefs.
We enclose, for ready reference, copies of the following documents:

1. Notice of Resolution for Franklin A. Alcorin and William O. Casido

2. Proclamation No. 347
3. Primer on Amnesty under Proclamation Nos. 347 and 348.

In its Comment to the aforesaid letter (submitted in compliance with our

Resolution of 7 October 1996), the Office of the Solicitor General alleged that the
accused-appellants in this case, in an effort to seek their release at the soonest
possible time, applied for pardon before the Presidential Committee on the Grant
of Bail, Release or Pardon (PCGBRP), as well as for amnesty before the National
Amnesty Commission (NAC); then contended that since amnesty, unlike pardon,
may be granted before or after the institution of the criminal prosecution and
sometimes even after conviction, as held in Barrioquinto v. Fernandez,[1] the
amnesty then granted accused-appellants William Casido and Franklin Alcorin
rendered moot and academic the question of the premature pardon granted to
them.
We agree with the Office of the Solicitor General. In Barrioquinto,[2] we stated
as follows:
The theory of the respondents, supported by the dissenting opinion, is
predicated on a wrong contention of the nature or character of an
amnesty. Amnesty must be distinguished from pardon.
Pardon is granted by the Chief Executive and as such it is a private act
which must be pleaded and proved by the person pardoned, because the
courts take no notice thereof; while amnesty by Proclamation of the
Chief Executive with the concurrence of Congress, and it is a public act
of which the courts should take judicial notice. Pardon is granted to one
after conviction; while amnesty is granted to classes of persons or
communities who may be guilty of political offenses, generally before
or after the institution of the criminal prosecution and sometimes after
conviction. Pardon looks forward and relieves the offender from the
consequences of an offense of which he has been convicted, that is, it
abolishes or forgives the punishment, and for that reason it does nor
work the restoration of the rights to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the
pardon, and it in no case exempts the culprit from the payment of the
civil indemnity imposed upon him by the sentence (article 36, Revised
Penal Code). While amnesty looks backward and abolishes and puts
into oblivion the offense itself, it so overlooks and obliterates the
offense with which he is charged that the person released by amnesty
stands before the law precisely as though he had committed no
offense. (underscoring supplied)
Accordingly, while the pardon in this case was void for having been extended
during the pendency of the appeal or before conviction by final judgment and,
therefore, in violation of the first paragraph of Section 19, Article VII of the
Constitution, the grant of the amnesty, for which accused-appellants William
Casido and Franklin Alcorin voluntarily applied under Proclamation No. 347,[3] was
valid. This Proclamation was concurred in by both Houses of Congress in
Concurrent Resolution No. 12 adopted on 2 June 1994.
The release then of accused-appellants William Casido and Franklin Alcorin
can only be justified by the amnesty, but not by the pardon.
 As to the pardon, we find unsatisfactory the Explanation of the Secretariat of
the Committee. It borders on the absurd that its members were unaware of the
resolutions of this Court inPeople v. Hinlo[4] and People v. Salle.[5] As early as 1991,
this Court, in People v. Sepada,[6] cited in our Resolution of 30 July 1996 in this
case, already stressed in no uncertain terms the necessity of a final judgment
before parole or pardon could be extended. Even in their Comment of 28 August
1996, the Members of the Secretariat implied that they were all the time aware
that a pardon could only be granted after conviction by final judgment; hence, they
required from the lawyers of the applicants the filing with this Court of motions for
the withdrawal of the applicants appeals. Thus, they cannot plead ignorance of
this condition sine qua non to the grant of pardon. They should have demanded
from the applicants the submission of proof of their compliance of the requirement
before submitting to the President a favorable recommendation. That alone, at the
very least, could have been the basis of a finding of good faith. In failing to
observe due care in the performance of their duties, the Members of the
Committee caused the President serious embarrassment and thus deserve an
admonition.
IN VIEW OF THE FOREGOING, the Court hereby resolved that the release of
accused-appellants William O. Casido and Franklin A. Alcorin was valid solely on
the ground of the amnesty granted them and this case is dismissed with costs de
oficio.
The Members of the Presidential Committee for the Grant of Bail, Release or
Pardon and of its Secretariat are admonished to exercise utmost care and
diligence in the performance of their duty to save the President from any
embarrassment in the exercise of his power to grant pardon or parole.
SO ORDERED.
Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.

[1]
82 Phil. 642 [1949].
[2]
Supra note 1, at 646-647 (citations omitted).
[3]
Entitled Granting Amnesty to Rebels, Insurgents, and All Other Persons Who Have or May Have
Committed Crimes Against Public Order, Other Crimes Committed in Furtherance of
Political Ends, and Violations of the Articles of War, and Creating a National Amnesty
Commission, issued by the President on 25 March 1994.
[4]
G.R. No. 110035, 31 January 1995.
[5]
G.R. No. 103567, 4 December 1995.
[6]
G.R. No. L-47514, 21 March 1991.
 EN BANC

[G.R. No. 47941. December 7, 1940.]

MIGUEL CRISTOBAL, Petitioner, v. ALEJO LABRADOR, ET AL., Respondents.

Victoriano Yamzon for Petitioner.

E. Voltaire Garcia for respondent Santos.

SYLLABUS

1. CONSTITUTIONAL LAW; PARDONING POWER OF CHIEF EXECUTIVE. Paragraph 6 of section 11 of

Article VII of our Constitution, provides:" (6) The President shall have the power to grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after conviction, for all offenses, except in
cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem
proper to impose. He shall have the power to grant amnesty with the concurrence of the National
Assembly." It should be observed that there are two limitations upon the exercise of this constitutional
prerogative by the Chief Executive, namely: (a) that the power be exercised after conviction; and (b) that
such power does not extend to cases of impeachment. Subject to the limitations imposed by the
Constitution, the pardoning power cannot be restricted of controlled by legislative action. It must remain
where the sovereign authority has placed it and must be exercised by the highest authority to whom it is
entrusted. An absolute pardon not only blots out the crime committed, but removes all disabilities resulting
from the conviction.

2. ID.; ID.; CASE AT BAR. In the present case, the disability is the result of conviction without there would
be no basis for disqualification from voting. Imprisonment is not the only punishment which the law imposes
upon those who violate its command. There are accessory and resultant disabilities, and the pardoning
power likewise extends to such disabilities. When granted after the term of imprisonment has expired,
absolute pardon removes all that is left of the consequences of conviction. In the present case, while the
pardon extended to respondent S is conditional in the sense that "he will be eligible for appointment only to
positions which are clerical or manual in nature involving no money or property responsibility," it is absolute
in so far as it "restores the respondent to full civil and political rights." (Pardon, Exhibit 1, extended
December 24, 1939.) While there are cases in the United States which hold that the pardoning power does
not restore the privilege of voting, this is because, as stated by the learned judge below, in the United
States the right of suffrage is a matter exclusively in the hands of the State and not in the hands of the
Federal Government (decision, page 9). Even then, there are cases to the contrary (Jones v. Board of
registrars, 56 Miss, 766; Hildreth v. Heath, 1 I11. App., 82). Upon the other hand, the suggestion that the
disqualification imposed in paragraph (b) of section 94 of Commonwealth Act No. 357, does not fall within
the purview of the pardoning power of the Chief Executive, would lead to the impairment of the pardoning
power of the Chief Executive, not contemplated in the Constitution, and would lead furthermore to the
result that there would be no way of restoring the political privilege in a case of this nature except through
legislative action.

DECISION

LAUREL, J.:

This is a petition for a writ of certiorari to review the decision of the Court of First Instance of Rizal in its
election case No. 7890, rendered on November 28, 1940, sustaining the right of Teofilo C. Santos to remain
in the list of registered voters in precinct No. 11 of the municipality of Malabon, Province of Rizal.

The antecedents which form the factual background of this election controversy are briefly narrated as
follows:chanrob1es virtu al 1aw library
On March 15, 1930, the Court of First Instance of Rizal found Teofilo C. Santos, respondent herein, guilty of
the crime of estafa and sentenced him to six months of arresto mayor and the accessories provided by law,
to return to the offended parties, Toribio Alarcon and Emilio Raymundo, the amounts P375 and P125,
respectively, with subsidiary imprisonment in case of insolvency, and to pay the costs. On appeal, this
court, on December 20, 1930, confirmed the judgment of conviction. Accordingly, he was confined in the
provincial jail of Pasig, Rizal, from March 14, 1932 to August 18, 1932 and paid the corresponding costs of
trial. As to his civil liability consisting in the return of the two amounts aforestated, the same was condoned
by the complainants. Notwithstanding his conviction, Teofilo C. Santos continued to be a registered elector
in the municipality of Malabon, Rizal, and was, for the period comprised between 1934 and 1937, seated as
the municipal president of that municipality. On August 22, 1938, Commonwealth Act No. 357, otherwise
known as the Election Code, was approved by the National Assembly, section 94, paragraph (b) of which
disqualifies the respondent from voting for having been "declared by final judgment guilty of any crime
against property." In view of this provision, the respondent forthwith applied to His Excellency, the
President, for an absolute pardon, his petition bearing date of August 15, 1939. Upon the favorable
recommendation of the Secretary of Justice, the Chief Executive, on December 24, 1939, granted the said
petition, restoring the respondent to his "full civil and political rights, except that with respect to the right
to hold public office or employment, he will be eligible for appointment only to positions which are clerical
or manual in nature and involving no money or property responsibility." cral aw virt ua1aw library

On November 16, 1940, the herein petitioner, Miguel Cristobal, filed a petition for the exclusion of the name
of Teofilo C. Santos from the list of voters in precinct No. 11 of Malabon, Rizal, on the ground that the latter
is disqualified under paragraph (b) of section 94 of Commonwealth Act No. 357. After hearing, the court
below rendered its decision on November 28, 1940, the dispositive portion of which reads as follows: jgc:chan robl es.com .ph

"Without going further into a discussion of all the other minor points and questions raised by the petitioner,
the court declares that the pardon extended in favor of the respondent on December 24, 1939, has had the
effect of excluding the respondent from the disqualification created by section 94, subsection (b) of the New
Election Code. The petition for exclusion of the respondent Teofilo C. Santos should be, as it hereby is,
denied. Let there be no costs." cralaw virtua1 aw library

Petitioner Cristobal has filed the present petition for certiorari in which he impugns the decision of the court
below on the several grounds stated in the petition.

It is the contention of the petitioner that the pardon granted by His Excellency, the President of the
Philippines, to the respondent, Teofilo C. Santos, did not restore the said respondent to the full enjoyment
of his political rights, because (a) the pardoning power of the Chief Executive does not apply to legislative
prohibitions; (b) the pardoning power here would amount to an unlawful exercise by the Chief Executive of
a legislative function; and (c) the respondent having served his sentence and all the accessory penalties
imposed by law, there was nothing to pardon. All these propositions involve an inquiry into the primary
question of the nature and extent of the pardoning power vested in the Chief Executive of the Nation by the
Constitution.

Paragraph 6 of section 11 of Article VII of our Constitution, provides: jgc:chanrobles .com.ph

"(6) The President shall have the power to grant reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction, for all offenses, except in cases of impeachment, upon such conditions and with
such restrictions and limitations as he may deem pro to impose. He shall have the power to grant amnesty
with the concurrence of the National Assembly." cral aw virt ua1aw library

It should be observed that there are two limitations upon the exercise of this constitutional prerogative by
the Chief Executive, namely: (a) that the power be exercised after conviction; and (b) that such power does
not extend cases of impeachment. Subject to the limitations imposed by the Constitution, the pardoning
power cannot be restricted or controlled by legislative action. It must remain where the sovereign authority
has placed it and must be exercised by the highest authority to whom it is entrusted. An absolute pardon not
only blots out the crime committed, but removes all disabilities resulting from the conviction. In the present
case, the disability is the result of conviction without which there would be no basis for disqualification from
voting. Imprisonment is not the only punishment which the law imposes upon those who violate its
command. There are accessory and resultant disabilities, and the pardoning power likewise extends to such
disabilities. When granted after the term of imprisonment has expired, absolute pardon removes all that is
left of the consequences f conviction. In the present case, while the pardon extended to respondent Santos
is conditional in the sense that "he will be eligible for appointment only to positions which a e clerical or
manual in nature involving no money or property responsibility," it is absolute insofar as it "restores the
respondent to full civil and political rights." (Pardon, Exhibit 1, extended December 24, 1939.) While there
are cases in the United States which hold that the pardoning power does not restore the privilege of voting,
this is because, as stated by the learned judge below, in the United States the right of suffrage is a matter
exclusively in the hands of the State and not in the hands of the Federal Government (Decision, page 9).
Even then, there are cases to the contrary (Jones v. Board of Registrars, 56 Miss. 766; Hildreth v. Heath, 1
Ill. App. 82). Upon other hand, the suggestion that the disqualification imposed in paragraph (b) of section
94 of Commonwealth Act No. 357, does not fall within the purview of the pardoning power of the Chief
Executive, would lead to the impairment of the pardoning power of the Chief Executive, not contemplated
in the Constitution, and would lead furthermore to the result that there would be no way of restoring the
political privilege in a case of this nature except through legislative action.

Avancea, C.J., Imperial and Diaz, JJ., concur.

Separate Opinions

HORRILLENO, M., disidente: chanrob1es virt ual 1aw library

Miguel Cristobal, el recurrente en este asunto, presento en el Juzgado de Primera Instancia de Rizal un
escrito el 16 de noviembre de 1940, en el que pedia que Teofilo C. Santos fuese excluido del censo electoral
del municipio de Malabon, por el fundamento de que bajo las disposiciones del Codigo Electoral, en su
articulo 94, inciso (b), estaba incapacitado para votar como elector. Previos los procedimientos legales,
viose el asunto, y luego de haber ambas partes presentado todas las pruebas, tanto orales como
documentales, el recurrido Juez, Honorable Alejo Labrador, fallo el asunto el 28 de dicho mes, denegando
la solicitud. El recurrente, con fecha 28 de noviembre de 1940, presento este recurso contra el mencionado
Juez, Honorable Alejo Labrador. Dada cuenta por el Sr. Escribano de la presentacion del recurso al Tribunal,
este lo sobreseyo por falta de meritos. Con fecha 3 de diciembre de 1940, el recurrente registro un escrito
en el que solicitaba la reconsideracion de la resolucion del Tribunal, denegando el recurso. Estimada la
peticion, sealose a vista la causa para el dia 6 de diciembre de 1940, a las nueve de la maana. Las partes
comparecieron e informaron sobre sus respectivas alegaciones.

No existe controversia alguna sobre los hechos. Se admite por el recurrido Teofilo C. Santos que el 21 de
junio de 1929, se presento contra el una querella por estafa por el Fiscal Provincial de Rizal; que, despues
de un debido proceso de ley, fue convicto de dicho delito por el Juzgado de Primera Instancia de la referida
Provincia de Rizal, y condenado a la pena de seis meses de arresto mayor y a restituir a los ofendidos en la
causa: a Toribio Alarcon la cantidad de P375 y a Emilio Raymundo la suma de P125, con la prision
subsidiaria en caso de insolvencia. Contra aquella sentencia el recurrido Teofilo C. Santos interpuso
apelacion para ante este Tribunal Supremo, el cual, en su sentencia, promulgada el 20 de diciembre de
1930, confirmo en todas sus partes la apelada; que el repetido Teofilo C. Santos extinguio toda la pena que
se le impuso, pena que llevaba consigo la accesoria de la suspension del ejercicio del sufragio por todo el
tiempo de la condena; y que salio de la carcel el dia 18 de agosto de 1932.

Que en la misma fecha, 15 de agosto de 1939, presento una solicitud de indulto a su Excelencia, el
Presidente del Commonwealth, en la cual solicitud, ademas de los hechos arriba relatados, exponia que,
bajo las disposiciones de la Ley No. 357, en sus articulos 93 y 94, el, Teofilo C. Santos, estaba descalificado
para votar y ser elegido. Su Excelencia, el Presidente, con fecha 24 de diciembre de 1939, le indulto. El
decreto de indulto se lee asi: jgc:chan robl es.com .ph

"MALACAAN PALACE

MANILA

"BY THE PRESIDENT OF THE PHILIPPINES

"By virtue of the authority conferred upon me by the Constitution and upon the recommendation of the
Honorable, the Secretary of Justice, Teofilo C. Santos, convicted by the Court of First Instance of Rizal of the
crime of estafa and sentenced to suffer imprisonment for a term of six months with the accessories of the
law and to return to the offended parties Toribio Alarcon, the amount of P375, and to Emilio Raymundo, the
amount of P125 or to suffer the corresponding subsidiary imprisonment in case of insolvency and to pay the
costs of the proceedings, is hereby restored to full civil and political rights, except that with respect to the
rights to hold public office or employment, he will be eligible for appointment only to positions which are
clerical or manual in nature involving no money or property responsibility.

"Given under my hand at the City of Manila, Philippines, this 24th day of December, in the year of Our Lord,
nineteen hundred and thirty-nine, and of the Commonwealth of the Philippines, the fifth.

"(Sgd.) MANUEL L. QUEZON

"By the President: jgc:chan robl es.com .ph

"(Sgd.) JORGE B. VARGAS

"Secretary to the President."

La mayoria de este Tribunal, fundada en el decreto de indulto, opina: jgc:chan robl es.com .ph

"An absolute pardon not only blots out the crime committed ,but removes all disabilities resulting from the
conviction. In the present case, the disability is the result of conviction without which there would be no
basis for disqualification from voting. Imprisonment is not the only punishment which the law imposes upon
those who violate its command. There are accessory and resultant disabilities, and the pardoning power
likewise extends to such disabilities. When granted after the term of imprisonment has expired, absolute
pardon removes all that is left of the consequences of conviction. In the present case, while the pardon
extended to respondent Santos is conditional in the sense that he will be eligible for appointment only to
positions which are clerical or manual in nature involving no money or property responsibility, it is absolute
insofar after it restores the respondent of full civil and political rights. (Pardon, Exhibit 1, extended
December 24, 1939.) While there are cases in the United States which hold that the pardoning power does
not restore the privilege of voting, this is because, as stated by the learned judge below, in the United
States the right of suffrage is a matter exclusively in the hands of the State and not in the hands of the
Federal Government (Decision, page 9). Even then, there are cases to the contrary (Jones v. Board of
Registrars, 56 Miss., 766; Hildreth v. Heath, 1 Ill. App., 82).

Upon the other hand, the suggestion that the disqualification imposed in paragraph (b) of section 94 of
Commonwealth Act No. 357, does not fall within the purview of the pardoning power of the Chief Executive,
would lead to the impairment of the pardoning power of the Chief Executive, not contemplated in the
Constitution, and would lead furthermore to the result that there would be no way of restoring the political
privilege in a case of this nature except through legislative action." cral aw virtu a1aw library

Tales son las conclusiones de la mayoria.

Las nuestras son: 1.a Que el decreto de indulto a favor del recurrido Santos no tenia objeto; 2.a Que, si bien
el indulto remite el castigo impuesto la reo, no tiene la virtud, sin embargo, de borrar la comision del delito
por el acusado y su conviccion; y 3.a Que el inciso (b) del articulo 94 del Codigo Electoral no es,
propiamente hablando, una pena ni una incapacidad resultante de la conviccion del recurrido.

PRIMERA CONCLUSION

Que el decreto de indulto a favor del recurrido Santos no tenia objeto.

Segun hechos admitidos por el mismo recurrido Santos, cuando el fue indultado ya habia extinguido toda su
condena y salido de la carcel. Como la suspension del derecho de sufragio, que es una pena accesoria que
lleva consigo la de prision impuesta, dura solamente lo que esta dura, el, al cumplirla totalmente, recobro
tal derecho. No habia por tanto, razon para restaurar el privilegio porque ya se habia recobrado.

SEGUNDA CONCLUSION

Que, si bien el indulto remite el castigo impuesto al reo, no tiene la virtud, sin embargo, de borrar la
comision del delito y la conviccion del acusado.

En Corpus Juris hallamos lo siguiente: jgc:chan robl es.com .ph

"Section 32. B. Operation 11. In General. When a full and absolute pardon is granted, it exempts the
individual upon whom it is bestowed from the punishment which the law inflicts for the crime which he has
committed. The crime is forgiven and remitted, and the individual is relieved from all of its legal
consequences. The effect of a full pardon is to make the offender a new man. While a pardon has generally
been regarded as blotting out the existence of guilt, so that in the eye of the law the offender is as innocent
as if he had never committed the offense, it does not so operate for all purposes, and as the very essence
of a pardon is forgiveness or remission of penalty, a pardon implies guilt; it does not obliterate the fact of
the commission of the crime and the conviction thereof; it does not wash out the moral stain; as has been
tersely said, it involves forgiveness and not forgetfulness." cral aw virtu a1aw library

En State of Washington v. Linda Burfield Hazzard, 47 A. L. R., pp. 540-541, el Tribunal Supremo de
Washington dijo: jgc:chanrobles .com.ph

"Pardons may relieve from the disability of fines and forfeitures attendant upon a conviction, but they
cannot erase the stain of bad character, which has been definitely fixed. (State v. Serfling, 131 Wash. 605,
230 Pac. 847.)

"In Baldi v. Gilchrist, 204 App. Div. 425, 198 N. Y. Supp. 493, a pardoned felon was denied a license to
operate a taxicab upon the ground that his previous conviction of crime established a bad character. The
Supreme Court said: jgc:chanrobles .com.ph

"Respondent contends that, because he was pardoned by the Governor, no further consequences should
follow his conviction of crime. But the executive act did not obliterate the fact of the conviction. As was said
in Roberts v. State, 160 N. Y. 217, 54 N. E. 678, 15 Am. Crim. Rep. 561: jgc:chan robl es.com .ph

"It is manifest that the appellants pardon and restoration to the rights of citizenship had no retroactive
effect upon the judgment of conviction which remains unreversed and has not been set aside. We think the
effect of a pardon is to relieve the offender of all unenforced penalties annexed to the conviction, but what
the party convicted has already endured, or paid, the pardon does not restore. When it takes effect, it puts
an end to any further infliction of punishment, but has no operation upon the portion of the sentence already
executed. A pardon proceeds not upon the theory of innocence, but implies guilt.

"In People ex rel. Deneen v. Gilmore, 214 Ill. 569, 69 L. R. A. 701, 73 N. E. 737, it was held that a pardon
issued to an attorney after conviction and sentence did not efface the moral turpitude established by
conviction; the court saying: The crime of which the respondent was convicted and imprisoned in the
penitentiary of the state of Missouri was an infamous offense, which involved not only moral turpitude, but
also the lack of professional integrity. The conviction of that crime had the effect to degrade him, and to
establish that he was of bad moral character as a man and as a lawyer. The pardon granted him by the then
acting Governor of the state of Missouri did not efface the moral turpitude and want of professional honesty
involved in the crime, nor obliterate the stain upon his moral character.

"In Re Spenser, 5 Sawy. 195, Fed. Cas. No. 13234, the court was called upon to decide whether a pardon
obliterated and wiped out the fact of conviction of crime, so that it could not be urged against an applicant
for citizenship. It was there said: jgc:chanrobl es.com.p h

"The offender is purged of his guilt, and thenceforth he is an innocent man; but the past is not obliterated
nor the fact that he had committed the crime wiped out.

"Apply these principles to this case. By the commission of the crime the applicant was guilty of misbehavior,
within the meaning of the statute, during his residence in the United States. The pardon has absolved him
from the guilt of the act, and relieved him from the legal disabilities consequent thereupon. But it has not
done away with the fact of his conviction. It does not operate retrospectively. The answer to the question:
Has he behaved as a man of good moral character? must still be in the negative; for the fact remains,
notwithstanding the pardon, that the applicant was guilty of the crime of perjury did behave otherwise
than as a man of good moral character." (Las cursivas son nuestras.)

En State v. Grant, 133 Atl. Rep., pag. 791, se declaro: jgc:chanrobles .com.ph

"A pardon is not presumed to be granted on the ground of innocence or total reformation. . . It removes the
disability, but does not change the common-law principle that the conviction of an infamous offense is
evidence of bad character for truth." (Las cursivas son nuestras.)

En la decision promulgada el 19 de febrero de 1917, en el caso de People v. McIntyre, 163 N. Y. S. 528-529,

se dijo:
jgc:chan robl es.com .ph

"that the Governor may grant a pardon which shall relieve from a judgment of habitual criminality, but upon
subsequent conviction for felony of a person so pardoned, a judgment of habitual criminality may again be
pronounced, a pardon, while relieving from the penalty of an offense, does not change the fact that the one
pardoned had been convicted, and in a prosecution for a subsequent offense the offense of which he was
pardoned may be shown to establish his habitual criminality." (Las cursivas son nuestras.)

En United States v. Swift, 186 Fed. Rep., p. 1003, hallamos lo que sigue: jgc:chan robl es.com .ph

"8. Pardon (Sec. I) Nature of Pardon Amnesty. A pardon or amnesty secures against the
consequences of ones acts, and not against the acts of themselves. It involves forgiveness; not
forgetfulness." cral aw virtu a1aw library

Tenemos, pues, que la infamia que el delito imprime en el reo, no puede ser borrada por el induito. No hay
en las fuentes de la piedad cristiana mas acendrada, aguas suficientes que puedan lavarla.

TERCERA CONCLUSION
Que el inciso (b) del articulo 94 del Codigo Electoral no es, propiamente hablando, una pena ni una
incapacidad (disability) resultante de la conviccion del recurrido.

El Poder Legislativo, al incorporar en el Codigo Electoral el inciso (b) del articulo 94 del mismo cuerpo legal,
no tuvo en cuenta, o mas claramente, no se referia de un modo singular al recurrido Santos. Dicho inciso es
una disposicion general que el Estado, haciendo uso de sus poderes de policia, mediante el poder
correspondiente del mismo, el legislativo, ha dictado, como medida de prevision y proteccion contra los
que, por su torpeza moral probada, puedan adulterar la pureza del sufragio, unica fuente del poder en las
Democracias.

En Hawker v. New York 170 U. S., 189), el acusado era un medico que habia sido convicto del delito de
aborto y sentenciado a diez aos de prision en el ao 1878. Habiendo ejercido la medicina despues de
extinguir su condena, a pesar de la prohibicion de una ley de la Legislatura de Nueva York, promulgada el
9 de mayo de 1893, relativa a la salud publica, y que se lee asi: jgc:chan robl es.com .ph

"any person who,. . . after conviction of a felony, shall attempt to practice medicine, or shall so practice,. . .
shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than two
hundred and fifty dollars, or imprisonment for six months for the first offense, and on conviction of any
subsequent offense, by a fine of not more than five hundred dollars, or imprisonment for not less than one
year, or by both fine and imprisonment." cral aw virtu a1aw library

dicho acusado fue procesado en abril de 1896 por infraccion de la citada ley. Habiendo sido convicto, apelo
de la sentencia para ante el Tribunal de Apelaciones del Estado de Nueva York, el cual confirmo el fallo del
tribunal de origen. Entonces presento un writ of errors en el Tribunal Supremo de los Estados Unidos. que
confirmoo, a su vez, el fallo apelado, y en su sentencia. entre otras cosas, dijo: jgc:chanrobl es.com.p h

"Doubtless, one who has violated the criminal law may thereafter reform and become in fact possessed of
a good moral character. But the legislature has power in cases of this kind to make a rule of universal
application, and no inquiry is permissible back of the rule to ascertain whether the fact of which the rule is
made the absolute test does or does not exist. Illustrations of this are abundant. At common law one
convicted of crime was incompetent as a witness, and this rule was in no manner affected by the lapse of
time since the commission of the offense and could not be set aside by proof of a complete reformation. So
in many States a convict is debarred the privileges of an elector, and an act so debarring was held applicable
to one convicted before its passage. (Washington v. State, 75 Alabama, 582.)" (Supra, 197.)

Parece, dicho sea con el mas profundo respeto que merece la mayoria, que esta ha dado una interpretacion
equivocada la palabra "disability" resultante de la conviccion (conviction). Conviccion, a nuestro juicio, es la
declaracion de la culpabilidad de un reo, hecha por el Tribunal.

Ahora bien, cuales son las incapacidades resultantes de tal declaracion de culpabilidad? Estas las seala
la ley. En el caso presente, la incapacidad (disability) consistia en la pena que se le impuso al recurrido
Santos; pena que era la de arresto mayor con la accesoria de suspension del derecho de sufragio por el
tiempo que dura aquella. La suspension del derecho de sufragio, habiendo el reo extinguido toda su
condena, se ha levantado completamente. No habia ya, entonces, ninguna incapacidad (disability) para el,
ni civil ni politica, porque sus incapacidades (disabilities) resultantes de su conviccion habian desaparecido
despues de la extincion de su condena. No existia, al tiempo de cumplir esta, ninguna otra ley que le privara
del derecho de sufragio, porque el Codigo Electoral, ya mencionado, no se habia aun promulgado. El inciso
(b) del articulo 94 del referido Codigo Electoral, que dice: "Todo el que haya sido declarado mediante
sentencia firme culpable de un delito contra la propiedad" es como llevamos dicho una medida de
prevision y proteccion que el Estado, por medio de sus correspondientes organismos, tiene derecho a distar
en el ejercicio de sus poderes de policia. Tal inciso tiene su base no precisamente en el delito cometido, sino
en lo que este delito ha revelado, cual es el fondo moral del recurrido que, como se habra visto en el curso
de esta disidencia, no se ha borrado con el indulto. La transformacion de ese fondo moral es obra propia del
individuo mismo, mediante una firme voluntad y resuelta determinacion de regenerarse.

La mayoria declara, aunque no lo hace de una manera categorica, que el inciso (b) del articulo 94 del Codigo
Electoral restringe el poder constitucional del Ejecutivo de indultar. Lo que viene a decir que el mencionado
inciso (b) del articulo 94 del Codigo Electoral rine con la Constitucion. A nosotros no nos parece asi; y, tal
ha sido la intencion de la mayoria, debio haberlo declarado de un modo directo y categorico. Pero, ,esta,
verdaderamente, en pugna el repetido inciso (b) con la Constitucion? Opinamos que no. Por el contrario,
sostenemos que tal inciso no rie con nuestra ley fundamental. Decimos mas: esta dentro de las facultades
del Poder Legislativo el dictarlo. El Titulo V, Articulo 1, de dicho documento dice asi: jgc:chan robl es.com .ph

"TITULO V. SUFRAGIO
"ARTICULO 1. Podra ejercitar el sufragio todo ciudadano filipino que tenga veintiun aos de edad o mas,
sepa leer y escribir, haya residido en Filipinas un ano y seis meses, por lo menos, en el municipio en que se
proponga votar antes de la fecha de la eleccion, y que de otro modo no este incapacitado por la ley. La
Asamblea Nacional otorgara, sin embargo, a la mujer el derecho de sufragio, siempre que, en un plebiscito
que se convocara al efecto, dentro de dos aos despues de adoptada esta Constitucion, trescientas mil
mujeres cuando menos, que poseyeren las necesarias calificaciones, voten afirmativamente sobre la
cuestion."cralaw virtua1 aw library

Es indiscutible, por tanto, bajo este precepto constitucional, que la facultad de determinar y fijar las
descalificaciones de un elector radica exclusivamente en el Poder Legislativo. Podria ocurrir que este Poder,
en el ejercicio de sus facultades constitucionales, incurriera en alguna injusticia o en algun error, pero tal
injusticia o error solamente podrian curarse, como ya hemos dicho, por el mismo Poder Legislativo o por el
Poder Judicial, esto es, enmendandose o derogandose la ley por aquel, o declarandola nula este.

Por consecuencia, el inciso (b) del articulo 94, del Codigo Electoral no rie con la Constitucion; concuerda
con ella.

Tambien nos parece erronea la interpretacion dada por la mayoria al decreto de indulto, en el sentido de
que, segun ella, el indulto es absoluto. La parte del indulto pertinente al caso dice: ". . . is hereby restore
to full civil and political rights, except that with respect to the right to hold public office or employment, he
will be eligible for appointment only to positions which are clerical or manual in nature involving no money
or property responsibility." La excepcion de "That with respect to the right to hold public office or
employment, he will be eligible for appointment only to positions which are clerical or manual in nature,
involving no money or property responsibility" hace del indulto, no absoluto sino condicional.

Y por ultimo, es preciso hacer notar que las decisiones en las causas de Jones v. Board of Registrars (56
Miss., 766) y Hildreth (1 I11. App. 82), en que se funda la mayoria, fueron dictadas en abril de 1879 y en
abril de 1878, respectivamente, y estan en pugna asi nos parece con la citada por nosotros recaida en
el asunto de State of Washington v. Linda Burfield Hazzard (47 9. L. R. pp. 540-541) supra, decision que fue
promulgada el 12 de julio de 1926.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 78239 February 9, 1989

SALVACION A. MONSANTO, petitioner,

vs.
FULGENCIO S. FACTORAN, JR., respondent.

FERNAN, C.J.:

The principal question raised in this petition for review is whether or not a public officer, who
has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to
her former position without need of a new appointment.

In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion
A. Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the
complex crime of estafa thru falsification of public documents and sentenced them to
imprisonment of four (4) years, two (2) months and one (1) day ofprision correccional as
minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of
P3,500. They were further ordered to jointly and severally indemnify the government in the
sum of P4,892.50 representing the balance of the amount defrauded and to pay the costs
proportionately.

Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the
same. She then filed a motion for reconsideration but while said motion was pending, she was
extended on December 17, 1984 by then President Marcos absolute pardon which she
accepted on December 21, 1984.

By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be
restored to her former post as assistant city treasurer since the same was still vacant.

Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the
provision of the Local Government Code transferring the power of appointment of treasurers
from the city governments to the said Ministry. In its 4th Indorsement dated March 1, 1985,
the Finance Ministry ruled that petitioner may be reinstated to her position without the
necessity of a new appointment not earlier than the date she was extended the absolute
pardon. It also directed the city treasurer to see to it that the amount of P4,892.50 which the
Sandiganbayan had required to be indemnified in favor of the government as well as the costs
of the litigation, be satisfied. 1

Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985
stressing that the full pardon bestowed on her has wiped out the crime which implies that her
service in the government has never been interrupted and therefore the date of her
reinstatement should correspond to the date of her preventive suspension which is August 1,
1982; that she is entitled to backpay for the entire period of her suspension; and that she
should not be required to pay the proportionate share of the amount of P4,892.50. 2

The Ministry of Finance, however, referred petitioner's letter to the Office of the President for
further review and action. On April 15, 1986, said Office, through Deputy Executive Secretary
Fulgenio S. Factoran, Jr. held:

We disagree with both the Ministry of Finance and the petitioner because, as borne out by the
records, petitioner was convicted of the crime for which she was accused. In line with the
government's crusade to restore absolute honesty in public service, this Office adopts, as
a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan,
2nd Division, inPeople v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not
absolute pardon, of a former public officer is the only ground for reinstatement to his former
position and entitlement to payment of his salaries, benefits and emoluments due to him
during the period of his suspensionpendente lite.

In fact, in such a situation, the former public official must secure a reappointment before he
can reassume his former position. ...

Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a
pardon shall in no case exempt the culprit from payment of the civil indemnity imposed upon
him by the sentence." (Sec. 36, par. 2).

IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to
an automatic reinstatement on the basis of the absolute pardon granted her but must secure
an appointment to her former position and that, notwithstanding said absolute pardon, she is
liable for the civil liability concomitant to her previous conviction. 3

Her subsequent motion for reconsideration having been denied, petitioner filed the present
petition in her behalf We gave due course on October 13, 1987.

Petitioner's basic theory is that the general rules on pardon cannot apply to her case by
reason of the fact that she was extended executive clemency while her conviction was still
pending appeal in this Court. There having been no final judgment of conviction, her
employment therefore as assistant city treasurer could not be said to have been terminated or
forfeited. In other words, without that final judgment of conviction, the accessory penalty of
forfeiture of office did not attach and the status of her employment remained "suspended."
More importantly, when pardon was issued before the final verdict of guilt, it was an acquittal
because there was no offense to speak of. In effect, the President has declared her not guilty
of the crime charged and has accordingly dismissed the same. 4

It is well to remember that petitioner had been convicted of the complex crime of estafa thru
falsification of public documents and sentenced to imprisonment of four years, two months
and one day of prision correccional as minimum, to ten years and one day of prision mayor as
maximum. The penalty of prision mayor carries the accessory penalties of temporary absolute
disqualification and perpetual special disqualification from the right of suffrage, enforceable
during the term of the principal penalty. 5 Temporary absolute disqualification bars the convict
from public office or employment, such disqualification to last during the term of the
sentence. 6 Even if the offender be pardoned, as to the principal penalty, the accessory penalties
remain unless the same have been expressly remitted by the pardon. 7 The penalty of prision
correccional carries, as one of its accessory penalties, suspension from public office. 8
The propositions earlier advanced by petitioner reveal her inadequate understanding of the
nature of pardon and its legal consequences. This is not totally unexpected considering that
the authorities on the subject have not been wholly consistent particularly in describing the
effects of pardon.

The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's
wrath. But Philippine jurisprudence on the subject has been largely influenced by American
case law.

Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution
of the laws, which exempts the individual, on whom it is bestowed, from the punishment the
law inflicts for a crime he has committed. It is the private, though official act of the executive
magistrate, delivered to the individual for whose benefit it is intended, and not communicated
officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and
delivery is not complete without acceptance." 8-a

At the time the antecedents of the present case took place, the pardoning power was
governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent
provision reads:

The President may, except in cases of impeachment, grant reprieves, commutations and
pardons, remit fines and forfeitures, and with the concurrence of the Batasang Pambansa,
grant amnesty. 9

The 1981 amendments had deleted the earlier rule that clemency could be extended only
upon final conviction, implying that clemency could be given even before conviction. Thus,
petitioner's unconditional pardon was granted even as her appeal was pending in the High
Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final
conviction was restored. But be that as it may, it is our view that in the present case, it is not
material when the pardon was bestowed, whether before or after conviction, for the result
would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned
her appeal and her unreversed conviction by the Sandiganbayan assumed the character of
finality.

Having disposed of that preliminary point, we proceed to discuss the effects of a full and
absolute pardon in relation to the decisive question of whether or not the plenary pardon had
the effect of removing the disqualifications prescribed by the Revised Penal Code.

In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts on
the various consequences of pardon: "... we adopt the broad view expressed in Cristobal v.
Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the
Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an
absolute pardon not only blots out the crime committed but removes all disabilities resulting from
the conviction. ... (W)e are of the opinion that the better view in the light of the constitutional grant
in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who,
after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to
the extent of relieving completely the party ... concerned from the accessory and resultant
disabilities of criminal conviction.

The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the
unmistakable application of the doctrinal case of Ex Parte Garland, 13 whose sweeping
generalizations to this day continue to hold sway in our jurisprudence despite the fact that much of
its relevance has been downplayed by later American decisions.

Consider the following broad statements:

A pardon reaches both the punishment prescribed for the offense and the guilt of the offender;
and when the pardon is full, it releases the punishment and blots out of existence the guilt, so
that in the eye of the law the offender is as innocent as if he had never committed the offense.
If granted before conviction, it prevents any of the penalties and disabilities, consequent upon
conviction, from attaching; if granted after conviction, it removes the penalties and disabilities
and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a
new credit and capacity. 14

Such generalities have not been universally accepted, recognized or approved. 15 The modern
trend of authorities now rejects the unduly broad language of the Garland case (reputed to be
perhaps the most extreme statement which has been made on the effects of a pardon). To our
mind, this is the more realistic approach. While a pardon has generally been regarded as blotting
out the existence of guilt so that in the eye of the law the offender is as innocent as though he
never committed the offense, it does not operate for all purposes. The very essence of a pardon is
forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission
of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness
and not forgetfulness. 16

The better considered cases regard full pardon (at least one not based on the offender's
innocence) as relieving the party from all the punitive consequences of his criminal act,
including the disqualifications or disabilities based on the finding of guilt. 17 But it relieves him
from nothing more. "To say, however, that the offender is a "new man", and "as innocent as if he
had never committed the offense;" is to ignore the difference between the crime and the criminal.
A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be
deserving of punishment, though left unpunished; and the law may regard him as more dangerous
to society than one never found guilty of crime, though it places no restraints upon him following
his conviction." 18

A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords
no relief for what has been suffered by the offender. It does not impose upon the government any
obligation to make reparation for what has been suffered. "Since the offense has been established
by judicial proceedings, that which has been done or suffered while they were in force is presumed
to have been rightfully done and justly suffered, and no satisfaction for it can be required." 20This
would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost
earnings and benefits.

Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared
her not guilty of the crime for which she was convicted. In the case of State v. Hazzard, 21 we
find this strong observation: "To assume that all or even a major number of pardons are issued
because of innocence of the recipients is not only to indict our judicial system, but requires us to
assume that which we all know to be untrue. The very act of forgiveness implies the commission of
wrong, and that wrong has been established by the most complete method known to modern
civilization. Pardons may relieve from the disability of fines and forfeitures attendant upon a
conviction, but they cannot erase the stain of bad character, which has been definitely fixed. 22

In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede
that pardon may remit all the penal consequences of a criminal indictment if only to give
meaning to the fiat that a pardon, being a presidential prerogative, should not be
circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon
blots out the guilt of an individual and that once he is absolved, he should be treated as if he
were innocent. For whatever may have been the judicial dicta in the past, we cannot perceive
how pardon can produce such "moral changes" as to equate a pardoned convict in character
and conduct with one who has constantly maintained the mark of a good, law-abiding citizen.

Pardon cannot mask the acts constituting the crime. These are "historical" facts which,
despite the public manifestation of mercy and forgiveness implicit in pardon, "ordinary,
prudent men will take into account in their subsequent dealings with the actor." 23

Pardon granted after conviction frees the individual from all the penalties and legal disabilities
and restores him to all his civil rights. But unless expressly grounded on the person's
innocence (which is rare), it cannot bring back lost reputation for honesty, integrity and fair
dealing. 24 This must be constantly kept in mind lest we lose track of the true character and
purpose of the privilege.

Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full
agreement with the commonly-held opinion that pardon does not ipso facto restore a
convicted felon to public office necessarily relinquished or forfeited by reason of the
conviction 25 although such pardon undoubtedly restores his eligibility for appointment to that
office. 26

The rationale is plainly evident Public offices are intended primarily for the collective
protection, safety and benefit of the common good. They cannot be compromised to favor
private interests. To insist on automatic reinstatement because of a mistaken notion that the
pardon virtually acquitted one from the offense of estafa would be grossly untenable. A
pardon, albeit full and plenary, cannot preclude the appointing power from refusing
appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable
by reason of the pardoned conviction.

For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility
from public office forms part of the punishment prescribed by the Revised Penal Code for
estafa thru falsification of public documents. It is clear from the authorities referred to that
when her guilt and punishment were expunged by her pardon, this particular disability was
likewise removed. Henceforth, petitioner may apply for reappointment to the office which was
forfeited by reason of her conviction. And in considering her qualifications and suitability for
the public post, the facts constituting her offense must be and should be evaluated and taken
into account to determine ultimately whether she can once again be entrusted with public
funds. Stated differently, the pardon granted to petitioner has resulted in removing her
disqualification from holding public employment but it cannot go beyond that. To regain her
former post as assistant city treasurer, she must re-apply and undergo the usual procedure
required for a new appointment.

Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon
her by the sentence. The Court cannot oblige her. Civil liability arising from crime is governed
by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason
the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil
liability may only be extinguished by the same causes recognized in the Civil Code, namely:
payment, loss of the thing due, remission of the debt, merger of the rights of creditor and
debtor, compensation and novation. 27
WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S.
Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs.

SO ORDERED.

Narvasa, Paras, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ.,
concur.

Melencio-Herrera, J., concurs in the result.

Separate Opinions

PADILLA, J.:

I concur in the result but on grounds different from those relied upon by the
majority opinion.

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with
three (3) other accused, she was charged before the Sandiganbayan with the complex crime
of Estafa through falsification of public documents. After trial, the accused were convicted and
sentenced to imprisonment of four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to ten (10) years and one (1) day of prision correccional, as
maximum, and to pay a fine of P 3,500.00. They were also ordered to jointly and severally
indemnify the government in the sum of P 4,892.50 representing the balance of the amount
defrauded and to pay the costs proportionately.

Petitioner appealed the judgment of conviction to this Court which affirmed the same.
Petitioner then filed a motion for reconsideration but while said motion was pending, President
Ferdinand E. Marcos extended to her on 17 December 1984 an absolute pardon which she
accepted on 21 December 1984.

By reason of said absolute pardon, petitioner in representations before the City Treasurer of
Calbayog, the Ministry of Finance and the Office of the President, asked that she be allowed
to re-assume her former office, as of 1 August 1982 (the date of her preventive suspension),
that she be paid her back salaries for the entire period of her suspension, and that she be not
required to pay her proportionate share of the amount of P 4,892.50.

Respondent Assistant Executive Secretary denied petitioner's request for automatic

reinstatement as well as her other claims, because of which denial, this petition for review on
certiorari was filed before the Court seeking the setting aside and reversal of the decision of
the respondent Assistant Executive Secretary, on the main contention that, as a public officer
who has been granted an absolute pardon by the President, she is entitled to reinstatement to
her former position without need of a new appointment, and to the other reliefs prayed for.

There can be no dispute that the pardon extinguished petitioner's criminal liability. At the
same time, Art. 36 of the Revised Penal Code categorically covers the effects of a pardon on
the pardoned's right to hold office, suffrage and on his civil liability. It states:

ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public
office, or the right of suffrage, unless such rights be expressly restored by the terms of the
pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence. (Emphasis supplied)

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the
pardon extended by the President to the petitioner did not per se entitle her to again hold
public office (including therefore the office of Assistant Treasurer, Calbayog City) or to
suffrage; nor did such pardon extinguish her civil liability for the criminal conviction, subject
matter of the pardon.

An examination of the presidential pardon in question shows that, while petitioner was
granted "an absolute and unconditional pardon and restored to full civil and political rights",
yet, nothing therein expressly provides that the right to hold public office was thereby restored
to the petitioner. In view of the express exclusion by Art. 36, RPC of the right to hold public
office, notwithstanding a pardon unless the right is expressly restored by the pardon, it is my
considered opinion that, to the extent that the pardon granted to the petitioner did
not expressly restore the right to hold public office as an effect of such pardon, that right must
be kept away from the petitioner.

It is a recognized principle in public law hopefully to be honored more in its compliance

rather than in its breach that a "public office is a public trust." The restoration of the right to
hold public office to one who has lost such right by reason of conviction in a criminal case, but
subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but
must be stated in express, explicit, positive and specific language. To require this would not
be asking too much.

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341
and Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that an absolute
pardon, without qualification, restores full civil rights which have been construed, in turn, to
include the right to hold public office (Versoza vs. Fernandez, 55 Phil. 323).

If such be the message of said cases, then I submit that a modification is in order, so that an
absolute pardon to work a restoration of the right to hold public office must expressly so state,
in order to give substance and meaning to the sound provisions of Article 36 of the Revised
Penal Code, particularly in the light of our times and experience.

ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera, Sarmiento, JJ., concur.

FELICIANO, J., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also
join in the separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a
few brief statements, basically for my own clarification. Article 36 of the Revised Penal Code
states:

Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold
public office, or the right of suffrage, unless such rights be expressly restored by the terms of
the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence. (Emphasis supplied)

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the
Revised Penal Code in its following provisions:

Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by
reason of commutation or pardon shall carry with it that of perpetual absolute disqualification
and that of civil interdiction during thirty years following the date of sentence, unless such
accessory penalties have been expressly remitted in the pardon.

Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The
penalties ofreclusion perpetua and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as the case may be, and that of
perpetual absolute disqualificationwhich the offender shall suffer even though pardoned as to
the principal penalty, unless the same shall have been expressly remitted in the pardon.

Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry
with it that of temporary absolute disqualification and that of perpetual special disqualification
from the right of suffrage which the offender shall suffer although pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.

Article 43. Prision correccional - Its accessory penalties. - The penalty of prision
correccional shall carry with it that of suspension from public office, from the right to follow a
profession or calling, and that of perpetual special disqualification from the right of suffrage, if
the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the
disqualification provided in this article although pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon. (Emphasis supplied)

The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of
estafa through falsification of public documents, included the accessory penalties of
temporary absolute disqualification from public office or employment and perpetual special
disqualification from the right of suffrage. The 17 December 1984 pardon extended to
petitioner in the instant case was written on a standard printed form which states inprinted
words that it was "an absolute and unconditional pardon [which] restored [petitioner] to full
civil and political rights." 1 While the right of suffrage and the right to hold public office or
employment are commonly regarded as "political rights," 2 it must be noted that there are other
"political rights" 3 and that the pardon given to petitioner did not expressly and in printer's ink
restore to petitioner the particular right to hold public office and the specific right to vote at
elections and plebiscites.

I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a
public trust, Articles 36 and 40-43 appropriately require a very high degree of explicitness if a
pardon is to work the restoration of such right to petitioner. Exactly the same point may, of
course, be made in respect of the restoration of the right to vote.

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute
books since 1930. I believe that they have been left intact by the constitutional provisions on
pardon, whether one refers to the 1935 Constitution or to the 1973 and 1987 Constitutions. I
do not believe that Articles 36, et al. collided with any provision or principle embodied in either
of our prior constitutions. The Chief Justice appears to agree with this position when he
referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on, however, to say
(in page 13) that: "the pardon granted to petitioner has resulted in removing her
disqualification from holding public employment but it cannot go beyond that."

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been
shown to be an unconstitutional restriction on the pardoning power of the President. The
limitation on the President's pardoning power, if limitation it be, does not appear to be an
unreasonably onerous one. Articles 36, et al. merely require the President to become
completely explicit if the pardon he extends is intended to wipe out not merely the principal but
also the accessory penalty of disqualification from holding public office and from voting and to
restore the recipient of the pardon to the exercise of such fundamental political rights. Such
requirement of explicitness seems entirely in line with the fundamental point made by the
Chief Justice that a pardon does not blot out the factual guilt of the recipient of the pardon. In
other words, the mere grant of a pardon to a public officer or employee who has been
unfaithful to the public trust and sentenced to disqualification from voting and from holding
such office, does not create the presumption that the recipient of the pardon has thereby
suddenly become morally eligible once more to exercise the right to vote and to hold public
office.

In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold
public office and on this ground, I vote to DENY the Petition for Review and to AFFIRM the
assailed Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.

Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.

Separate Opinions

PADILLA, J.:

I concur in the result but on grounds different from those relied upon by the majority opinion.

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with
three (3) other accused, she was charged before the Sandiganbayan with the complex crime
of Estafa through falsification of public documents. After trial, the accused were convicted and
sentenced to imprisonment of four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to ten (10) years and one (1) day of prision correccional, as
maximum, and to pay a fine of P 3,500.00. They were also ordered to jointly and severally
indemnify the government in the sum of P 4,892.50 representing the balance of the amount
defrauded and to pay the costs proportionately.

Petitioner appealed the judgment of conviction to this Court which affirmed the same.
Petitioner then filed a motion for reconsideration but while said motion was pending, President
Ferdinand E. Marcos extended to her on 17 December 1984 an absolute pardon which she
accepted on 21 December 1984.

By reason of said absolute pardon, petitioner in representations before the City Treasurer of
Calbayog, the Ministry of Finance and the Office of the President, asked that she be allowed
to re-assume her former office, as of 1 August 1982 (the date of her preventive suspension),
that she be paid her back salaries for the entire period of her suspension, and that she be not
required to pay her proportionate share of the amount of P 4,892.50.
Respondent Assistant Executive Secretary denied petitioner's request for automatic
reinstatement as well as her other claims, because of which denial, this petition for review on
certiorari was filed before the Court seeking the setting aside and reversal of the decision of
the respondent Assistant Executive Secretary, on the main contention that, as a public officer
who has been granted an absolute pardon by the President, she is entitled to reinstatement to
her former position without need of a new appointment, and to the other reliefs prayed for.

There can be no dispute that the pardon extinguished petitioner's criminal liability. At the
same time, Art. 36 of the Revised Penal Code categorically covers the effects of a pardon on
the pardoned's right to hold office, suffrage and on his civil liability. It states:

ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public
office, or the right of suffrage, unless such rights be expressly restored by the terms of the
pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence. (Emphasis supplied)

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the
pardon extended by the President to the petitioner did not per se entitle her to again hold
public office (including therefore the office of Assistant Treasurer, Calbayog City) or to
suffrage; nor did such pardon extinguish her civil liability for the criminal conviction, subject
matter of the pardon.

An examination of the presidential pardon in question shows that, while petitioner was
granted "an absolute and unconditional pardon and restored to full civil and political rights",
yet, nothing therein expressly provides that the right to hold public office was thereby restored
to the petitioner. In view of the express exclusion by Art. 36, RPC of the right to hold public
office, notwithstanding a pardon unless the right is expressly restored by the pardon, it is my
considered opinion that, to the extent that the pardon granted to the petitioner did
not expressly restore the right to hold public office as an effect of such pardon, that right must
be kept away from the petitioner.

It is a recognized principle in public law-hopefully to be honored more in its compliance rather

than in its breach that a "public office is a public trust." The restoration of the right to hold
public office to one who has lost such right by reason of conviction in a criminal case, but
subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but
must be stated in express, explicit, positive and specific language. To require this would not
be asking too much.

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341
and Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that an absolute
pardon, without qualification, restores full civil rights which have been construed, in turn, to
include the right to hold public office (Versoza vs. Fernandez, 55 Phil. 323).

If such be the message of said cases, then I submit that a modification is in order, so that an
absolute pardon to work a restoration of the right to hold public office must expressly so state,
in order to give substance and meaning to the sound provisions of Article 36 of the Revised
Penal Code, particularly in the light of our times and experience.

ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera, Sarmiento, JJ., concur.

FELICIANO, J., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also
join in the separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a
few brief statements, basically for my own clarification. Article 36 of the Revised Penal Code
states:

Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold
public office, or the right of suffrage, unless such rights be expressly restored by the terms of
the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence. (Emphasis supplied)

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the
Revised Penal Code in its following provisions:

Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by
reason of commutation or pardon shall carry with it that of perpetual absolute disqualification
and that of civil interdiction during thirty years following the date of sentence, unless such
accessory penalties have been expressly remitted in the pardon.

Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The
penalties ofreclusion perpetua and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as the case may be, and that of
perpetual absolute disqualificationwhich the offender shall suffer even though pardoned as to
the principal penalty, unless the same shall have been expressly remitted in the pardon.

Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry
with it that of temporary absolute disqualification and that of perpetual special disqualification
from the right of suffrage which the offender shall suffer although pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.

Article 43. Prision correccional - Its accessory penalties. - The penalty of prision
correccional shall carry with it that of suspension from public office, from the right to follow a
profession or calling, and that of perpetual special disqualification from the right of suffrage, if
the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the
disqualification provided in this article although pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon. (Emphasis supplied)

The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of
estafa through falsification of public documents, included the accessory penalties of
temporary absolute disqualification from public office or employment and perpetual special
disqualification from the right of suffrage. The 17 December 1984 pardon extended to
petitioner in the instant case was written on a standard printed form which states inprinted
words that it was "an absolute and unconditional pardon [which] restored [petitioner] to full
civil and political rights." 1 While the right of suffrage and the right to hold public office or
employment are commonly regarded as "political rights," 2 it must be noted that there are other
"political rights" 3 and that the pardon given to petitioner did not expressly and in printer's ink
restore to petitioner the particular right to hold public office and the specific right to vote at
elections and plebiscites.

I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a
public trust, Articles 36 and 40-43 appropriately require a very high degree of explicitness if a
pardon is to work the restoration of such right to petitioner. Exactly the same point may, of
course, be made in respect of the restoration of the right to vote.

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute
books since 1930. I believe that they have been left intact by the constitutional provisions on
pardon, whether one refers to the 1935 Constitution or to the 1973 and 1987 Constitutions. I
do not believe that Articles 36, et al. collided with any provision or principle embodied in either
of our prior constitutions. The Chief Justice appears to agree with this position when he
referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on, however, to say
(in page 13) that: "the pardon granted to petitioner has resulted in removing her
disqualification from holding public employment but it cannot go beyond that."

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been
shown to be an unconstitutional restriction on the pardoning power of the President. The
limitation on the President's pardoning power, if limitation it be, does not appear to be an
unreasonably onerous one. Articles 36, et al. merely require the President to become
completely explicit if the pardon he extends is intended to wipe out not merely the principal but
also the accessory penalty of disqualification from holding public office and from voting and to
restore the recipient of the pardon to the exercise of such fundamental political rights. Such
requirement of explicitness seems entirely in line with the fundamental point made by the
Chief Justice that a pardon does not blot out the factual guilt of the recipient of the pardon. In
other words, the mere grant of a pardon to a public officer or employee who has been
unfaithful to the public trust and sentenced to disqualification from voting and from holding
such office, does not create the presumption that the recipient of the pardon has thereby
suddenly become morally eligible once more to exercise the right to vote and to hold public
office.

In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold
public office and on this ground, I vote to DENY the Petition for Review and to AFFIRM the
assailed Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.

Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.

Footnotes

1 Rollo at 14-15.

2 Rollo at 18-19.

3 Rollo at 21-22.

4 Rollo at 73.

5 Article 42, Revised Penal Code.

6 Article 30, supra.

7 Article 36, supra.

8 Article 43, supra.

8-a United States v. Wilson, 7 Pet. 160, 160-1, cited in Bernas, The 1973 Philippine
Constitution, Notes and Cases, Part I, 1974 Ed., p. 355.

9 Article VII, Section 11.

10 72 Phil. 441.

11 Supra.

12 In re Lontok, 43 Phil. 293; Pendon v. Diasnes, 91 Phil. 848 and Mijares v. Custorio, 73 Phil.
507.

13 4 Wall. 333, 18 L. Ed. 366.

14 Ex Parte Garland, supra at 367.

15 67 C. J. S. 576-577.

16 67 C. J. S. 576-577; Page vs, Watson, 192 So. 205, 126 A.L.R. 249, 253.

17 Comm. of Met. Dist. Com. v. Director of Civil Service, 203 N.E. 2d 95.

18 State v. Cullen, 127 P. 2d 257, cited in 67 C.J.S. 577, note 18.

19 Morris v. Hartsfield, 197 S.E. 251.

20 Illinois C.R. Co. v. Bosworth, 133 U.S. 92, 33 L Ed. 550, 554-555, citing Knote v. United
States, 95 U.S. 149.

21 247 p. 957.

22 See also State v. Serfling, 230 P. 847.

23 Comm. of Met. Dist. Com. v. Director of Civil Service, 203 N.E. 2d 95.

24 Ibid.

25 Illinois C.R Co. v. Bosworth, 133 U.S. 92, 33 L.E. 550; Page v. Watson, 192 So. 205, 126
ALR, 249; State v. Hazzard, 247 P. 957 and In re Stephenson, 10 So. 2d 1.

26 59 Am. Jur. 2d 40.

27 Articles 36, 112-113, Revised Penal Code.

FELICIANO CONCURRING OPINION

1 Rollo, P. 90.

2 Vera v. Avelino, 77 Phil. 192 (1946).

3 Malcolm and Laurel, The Constitutional Law of the Philippines, p. 378 (1936).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 206666 January 21, 2015

ATTY. ALICIA RISOS-VIDAL, Petitioner,

ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH EJERCITO ESTRADA, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to Rule 65,
both of the Revised Rules of Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which essentially
prays for the issuance of the writ of certiorari annulling and setting aside the April 1, 20131 and
April 23, 20132 Resolutions of the Commission on Elections (COMELEC), Second Division
and En bane, respectively, in SPA No. 13-211 (DC), entitled "Atty. Alicia Risos-Vidal v.
Joseph Ejercito Estrada" for having been rendered with grave abuse of discretion amounting
to lack or excess of jurisdiction; and (2) a Petition-in-Intervention3 filed by Alfredo S. Lim (Lim),
wherein he prays to be declared the 2013 winning candidate for Mayor of the City of Manila in
view of private respondent former President Joseph Ejercito Estradas (former President
Estrada) disqualification to run for and hold public office.

The Facts

The salient facts of the case are as follows:

On September 12, 2007, the Sandiganbayan convicted former President Estrada, a former
President of the Republic of the Philippines, for the crime of plunder in Criminal Case No.
26558, entitled "People of the Philippines v. Joseph Ejercito Estrada, et al." The dispositive
part of the graft courts decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No.
26558 finding the accused, Former President Joseph Ejercito Estrada, GUILTY beyond
reasonable doubt of the crime of PLUNDER, defined in and penalized by Republic Act No.
7080, as amended. On the other hand, for failure of the prosecution to prove and establish
their guilt beyond reasonable doubt, the Court finds the accused Jose "Jinggoy" Estrada and
Atty. Edward S. Serapio NOT GUILTY of the crime of plunder, and accordingly, the Court
hereby orders their ACQUITTAL.

The penalty imposable for the crime of plunder under Republic Act No. 7080, as amended by
Republic Act No. 7659, is Reclusion Perpetua to Death. There being no aggravating or
mitigating circumstances, however, the lesser penalty shall be applied in accordance with
Article 63 of the Revised Penal Code. Accordingly, the accused Former President Joseph
Ejercito Estrada is hereby sentenced to suffer the penalty of Reclusion Perpetua and the
accessory penalties of civil interdiction during the period of sentence and perpetual absolute
disqualification.

The period within which accused Former President Joseph Ejercito Estrada has been under
detention shall be credited to him in full as long as he agrees voluntarily in writing to abide by
the same disciplinary rules imposed upon convicted prisoners.

Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic
Act No. 7659, the Court hereby declares the forfeiture in favor of the government of the
following:

(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred Ninety[-]One
Thousand Pesos (P545,291,000.00), with interest and income earned, inclusive of the
amount of Two Hundred Million Pesos (P200,000,000.00), deposited in the name and
account of the Erap Muslim Youth Foundation.

(2) The amount of One Hundred Eighty[-]Nine Million Pesos (P189,000,000.00), inclusive of
interests and income earned, deposited in the Jose Velarde account.

(3) The real property consisting of a house and lot dubbed as "Boracay Mansion" located at
#100 11th Street, New Manila, Quezon City.

The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio are
hereby ordered cancelled and released to the said accused or their duly authorized
representatives upon presentation of the original receipt evidencing payment thereof and
subject to the usual accounting and auditing procedures. Likewise, the hold-departure orders
issued against the said accused are hereby recalled and declared functus oficio.4

On October 25, 2007, however, former President Gloria Macapagal Arroyo (former President
Arroyo) extended executive clemency, by way of pardon, to former President Estrada. The full
text of said pardon states:

MALACAAN PALACE
MANILA

By the President of the Philippines

PARDON

WHEREAS, this Administration has a policy of releasing inmates who have

reached the age of seventy (70),

WHEREAS, Joseph Ejercito Estrada has been under detention for six and a
half years,

WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek

any elective position or office,

IN VIEW HEREOF and pursuant to the authority conferred upon me by the

Constitution, I hereby grant executive clemency to JOSEPH EJERCITO
ESTRADA, convicted by the Sandiganbayan of Plunder and imposed a
 penalty of Reclusion Perpetua. He is hereby restored to his civil and political
rights.

The forfeitures imposed by the Sandiganbayan remain in force and in full,

including all writs and processes issued by the Sandiganbayan in pursuance
hereof, except for the bank account(s) he owned before his tenure as
President.

Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this

pardon shall take effect.

Given under my hand at the City of Manila, this 25th Day of October, in the
year of Our Lord, two thousand and seven.

Gloria M. Arroyo (sgd.)

By the President:

IGNACIO R. BUNYE (sgd.)

Acting Executive Secretary5

On October 26, 2007, at 3:35 p.m., former President Estrada "received and accepted"6 the
pardon by affixing his signature beside his handwritten notation thereon.

On November 30, 2009, former President Estrada filed a Certificate of Candidacy7 for the
position of President. During that time, his candidacy earned three oppositions in the
COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny Due Course and Cancel Certificate
of Candidacy" filed by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028 (DC), a
petition for "Disqualification as Presidential Candidate" filed by Evilio C. Pormento (Pormento);
and (3) SPA No. 09-104 (DC), a "Petition to Disqualify Estrada Ejercito, Joseph M.from
Running as President due to Constitutional Disqualification and Creating Confusion to the
Prejudice of Estrada, Mary Lou B" filed by Mary Lou Estrada. In separate Resolutions8 dated
January 20, 2010 by the COMELEC, Second Division, however, all three petitions were
effectively dismissed on the uniform grounds that (i) the Constitutional proscription on
reelection applies to a sitting president; and (ii) the pardon granted to former President
Estrada by former President Arroyo restored the formers right to vote and be voted for a
public office. The subsequent motions for reconsideration thereto were denied by the
COMELEC En banc.

After the conduct of the May 10, 2010 synchronized elections, however, former President
Estrada only managed to garner the second highest number of votes.

Of the three petitioners above-mentioned, only Pormento sought recourse to this Court and
filed a petition for certiorari, which was docketed as G.R. No. 191988, entitled "Atty. Evilio C.
Pormento v. Joseph ERAP Ejercito Estrada and Commission on Elections." But in a
Resolution9 dated August 31, 2010, the Court dismissed the aforementioned petition on the
ground of mootness considering that former President Estrada lost his presidential bid.

On October 2, 2012, former President Estrada once more ventured into the political arena,
and filed a Certificate of Candidacy,10 this time vying for a local elective post, that ofthe Mayor
of the City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for
Disqualification against former President Estrada before the COMELEC. The petition was
docketed as SPA No. 13-211 (DC). Risos Vidal anchored her petition on the theory that
"[Former President Estrada] is Disqualified to Run for Public Office because of his Conviction
for Plunder by the Sandiganbayan in Criminal Case No. 26558 entitled People of the
Philippines vs. Joseph Ejercito Estrada Sentencing Him to Suffer the Penalty of Reclusion
Perpetuawith Perpetual Absolute Disqualification."11 She relied on Section 40 of the Local
Government Code (LGC), in relation to Section 12 of the Omnibus Election Code (OEC),
which state respectively, that:

Sec. 40, Local Government Code:

SECTION 40. Disqualifications.- The following persons are disqualified from running for any
elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after serving
sentence; (b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble minded. (Emphasis supplied.)

Sec. 12, Omnibus Election Code:

Section 12. Disqualifications. - Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final judgmentfor subversion, insurrection,
rebellion, or for any offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any public office, unless he has been given plenary pardon or granted
amnesty. (Emphases supplied.)

In a Resolution dated April 1, 2013,the COMELEC, Second Division, dismissed the petition
for disqualification, the fallo of which reads:

WHEREFORE, premises considered, the instant petition is hereby DISMISSED for utter lack
of merit.12

The COMELEC, Second Division, opined that "[h]aving taken judicial cognizance of the
consolidated resolution for SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and the 10 May
2010 En Banc resolution affirming it, this Commission will not be labor the controversy further.
Moreso, [Risos-Vidal] failed to present cogent proof sufficient to reverse the standing
pronouncement of this Commission declaring categorically that [former President Estradas]
right to seek public office has been effectively restored by the pardon vested upon him by
former President Gloria M. Arroyo. Since this Commission has already spoken, it will no
longer engage in disquisitions of a settled matter lest indulged in wastage of government
resources."13

The subsequent motion for reconsideration filed by Risos-Vidal was denied in a Resolution
dated April 23, 2013.

On April 30, 2013, Risos-Vidal invoked the Courts jurisdiction by filing the present petition.
She presented five issues for the Courts resolution, to wit:

I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING

TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT RESPONDENT ESTRADAS
PARDON WAS NOT CONDITIONAL;

II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT FINDING THAT
RESPONDENT ESTRADA IS DISQUALIFIED TO RUN AS MAYOR OF MANILA UNDER
SEC. 40 OF THE LOCAL GOVERNMENTCODE OF 1991 FOR HAVING BEEN CONVICTED
OF PLUNDER, AN OFFENSE INVOLVING MORAL TURPITUDE;

III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING THE PETITION
FOR DISQUALIFICATION ON THE GROUND THAT THE CASE INVOLVES THE SAME OR
SIMILAR ISSUES IT ALREADY RESOLVED IN THE CASES OF "PORMENTO VS.
ESTRADA", SPA NO. 09-028 (DC) AND IN "RE: PETITION TO DISQUALIFY ESTRADA
EJERCITO, JOSEPH M. FROM RUNNING AS PRESIDENT, ETC.," SPA NO. 09-104 (DC);

IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT RULING THAT
RESPONDENT ESTRADAS PARDON NEITHER RESTORED HIS RIGHT OF SUFFRAGE
NOR REMITTED HIS PERPETUAL ABSOLUTE DISQUALIFICATION FROM SEEKING
PUBLIC OFFICE; and

V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT HAVING EXERCISED ITS
POWER TO MOTU PROPRIO DISQUALIFY RESPONDENT ESTRADA IN THE FACE OF
HIS PATENT DISQUALIFICATION TO RUN FOR PUBLIC OFFICE BECAUSE OF HIS
PERPETUAL AND ABSOLUTE DISQUALIFICATION TO SEEK PUBLIC OFFICE AND TO
VOTE RESULTING FROM HIS CRIMINAL CONVICTION FOR PLUNDER.14

While this case was pending beforethe Court, or on May 13, 2013, the elections were
conducted as scheduled and former President Estrada was voted into office with 349,770
votes cast in his favor. The next day, the local board of canvassers proclaimed him as the
duly elected Mayor of the City of Manila.

On June 7, 2013, Lim, one of former President Estradas opponents for the position of Mayor,
moved for leave to intervene in this case. His motion was granted by the Court in a
Resolution15 dated June 25, 2013. Lim subscribed to Risos-Vidals theory that former
President Estrada is disqualified to run for and hold public office as the pardon granted to the
latter failed to expressly remit his perpetual disqualification. Further, given that former
President Estrada is disqualified to run for and hold public office, all the votes obtained by the
latter should be declared stray, and, being the second placer with 313,764 votes to his name,
he (Lim) should be declared the rightful winning candidate for the position of Mayor of the City
of Manila.

The Issue

Though raising five seemingly separate issues for resolution, the petition filed by Risos-Vidal
actually presents only one essential question for resolution by the Court, that is, whether or
not the COMELEC committed grave abuse of discretion amounting to lack or excess of
jurisdiction in ruling that former President Estrada is qualified to vote and be voted for in public
office as a result of the pardon granted to him by former President Arroyo.

In her petition, Risos-Vidal starts her discussion by pointing out that the pardon granted to
former President Estrada was conditional as evidenced by the latters express acceptance
thereof. The "acceptance," she claims, is an indication of the conditional natureof the pardon,
with the condition being embodied in the third Whereas Clause of the pardon, i.e.,
"WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective
position or office." She explains that the aforementioned commitment was what impelled
former President Arroyo to pardon former President Estrada, without it, the clemency would
not have been extended. And any breach thereof, that is, whenformer President Estrada filed
his Certificate of Candidacy for President and Mayor of the City of Manila, he breached the
condition of the pardon; hence, "he ought to be recommitted to prison to serve the unexpired
portion of his sentence x x x and disqualifies him as a candidate for the mayoralty [position] of
Manila."16

Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former President
Estrada mustbe disqualified from running for and holding public elective office is actually the
proscription found in Section 40 of the LGC, in relation to Section 12 ofthe OEC. She argues
that the crime of plunder is both an offense punishable by imprisonment of one year or more
and involving moral turpitude; such that former President Estrada must be disqualified to run
for and hold public elective office.

Even with the pardon granted to former President Estrada, however, Risos-Vidal insists that
the same did not operate to make available to former President Estrada the exception
provided under Section 12 of the OEC, the pardon being merely conditional and not absolute
or plenary. Moreover, Risos-Vidal puts a premium on the ostensible requirements provided
under Articles 36 and 41 of the Revised Penal Code, to wit:

ART. 36. Pardon; its effects. A pardon shall not work the restoration of the right to hold
publicoffice, or the right of suffrage, unless such rights be expressly restored by the terms of
the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal Their accessory penalties. The
penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as the case may be, and that of
perpetual absolute disqualification which the offender shall suffer even though pardoned as to
the principal penalty, unless the same shall have been expressly remitted in the pardon.
(Emphases supplied.)
She avers that in view of the foregoing provisions of law, it is not enough that a pardon makes
a general statement that such pardon carries with it the restoration of civil and political rights.
By virtue of Articles 36 and 41, a pardon restoring civil and political rights without categorically
making mention what specific civil and political rights are restored "shall not work to restore
the right to hold public office, or the right of suffrage; nor shall it remit the accessory penalties
of civil interdiction and perpetual absolute disqualification for the principal penalties of
reclusion perpetua and reclusion temporal."17 In other words, she considers the above
constraints as mandatory requirements that shun a general or implied restoration of civil and
political rights in pardons.

Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and
Florentino P. Feliciano in Monsanto v. Factoran, Jr.18 to endorse her position that "[t]he
restoration of the right to hold public office to one who has lost such right by reason of
conviction in a criminal case, but subsequently pardoned, cannot be left to inference, no
matter how intensely arguable, but must be statedin express, explicit, positive and specific
language."

Applying Monsantoto former President Estradas case, Risos-Vidal reckons that "such
express restoration is further demanded by the existence of the condition in the [third]
[W]hereas [C]lause of the pardon x x x indubitably indicating that the privilege to hold public
office was not restored to him."19

On the other hand, the Office ofthe Solicitor General (OSG) for public respondent COMELEC,
maintains that "the issue of whether or not the pardon extended to [former President Estrada]
restored his right to run for public office had already been passed upon by public respondent
COMELEC way back in 2010 via its rulings in SPA Nos. 09-024, 09-028 and 09-104, there is
no cogent reason for it to reverse its standing pronouncement and declare [former President
Estrada] disqualified to run and be voted as mayor of the City of Manila in the absence of any
new argument that would warrant its reversal. To be sure, public respondent COMELEC
correctly exercised its discretion in taking judicial cognizance of the aforesaid rulings which
are known toit and which can be verified from its own records, in accordance with Section 2,
Rule 129 of the Rules of Court on the courts discretionary power to take judicial notice of
matters which are of public knowledge, orare capable of unquestionable demonstration, or
ought to be known to them because of their judicial functions."20

Further, the OSG contends that "[w]hile at first glance, it is apparent that [former President
Estradas] conviction for plunder disqualifies him from running as mayor of Manila under
Section 40 of the [LGC], the subsequent grant of pardon to him, however, effectively restored
his right to run for any public office."21 The restoration of his right to run for any public office is
the exception to the prohibition under Section 40 of the LGC, as provided under Section 12 of
the OEC. As to the seeming requirement of Articles 36 and 41 of the Revised Penal Code, i.e.,
the express restoration/remission of a particular right to be stated in the pardon, the OSG
asserts that "an airtight and rigid interpretation of Article 36 and Article 41 of the [RPC] x x x
would be stretching too much the clear and plain meaning of the aforesaid provisions."22 Lastly,
taking into consideration the third Whereas Clause of the pardon granted to former President
Estrada, the OSG supports the position that it "is not an integral part of the decree of the
pardon and cannot therefore serve to restrict its effectivity."23

Thus, the OSG concludes that the "COMELEC did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the assailed Resolutions."24
For his part, former President Estrada presents the following significant arguments to defend
his stay in office: that "the factual findings of public respondent COMELEC, the Constitutional
body mandated to administer and enforce all laws relative to the conduct of the elections,
[relative to the absoluteness of the pardon, the effects thereof, and the eligibility of former
President Estrada to seek public elective office] are binding [and conclusive] on this
Honorable Supreme Court;" that he "was granted an absolute pardon and thereby restored to
his full civil and political rights, including the right to seek public elective office such as the
mayoral (sic) position in the City of Manila;" that "the majority decision in the case of
Salvacion A. Monsanto v. Fulgencio S. Factoran, Jr.,which was erroneously cited by both
Vidal and Lim as authority for their respective claims, x x x reveal that there was no discussion
whatsoever in the ratio decidendi of the Monsanto case as to the alleged necessity for an
expressed restoration of the right to hold public office in the pardon as a legal prerequisite to
remove the subject perpetual special disqualification;" that moreover, the "principal question
raised in this Monsanto case is whether or not a public officer, who has been granted an
absolute pardon by the Chief Executive, is entitled to reinstatement toher former position
without need of a new appointment;" that his "expressed acceptance [of the pardon] is not
proof that the pardon extended to [him] is conditional and not absolute;" that this case is a
mere rehash of the casesfiled against him during his candidacy for President back in
2009-2010; that Articles 36 and 41 of the Revised Penal Code "cannot abridge or diminish the
pardoning power of the President expressly granted by the Constitution;" that the text of the
pardon granted to him substantially, if not fully, complied with the requirement posed by
Article 36 of the Revised Penal Code as it was categorically stated in the said document that
he was "restored to his civil and political rights;" that since pardon is an act of grace, it must be
construed favorably in favor of the grantee;25 and that his disqualification will result in massive
disenfranchisement of the hundreds of thousands of Manileos who voted for him.26

The Court's Ruling

The petition for certiorari lacks merit.

Former President Estrada was granted an absolute pardon that fully restored allhis civil and
political rights, which naturally includes the right to seek public elective office, the focal point
of this controversy. The wording of the pardon extended to former President Estrada is
complete, unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the
Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the
language of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised
Penal Code. Recall that the petition for disqualification filed by Risos-Vidal against former
President Estrada, docketed as SPA No. 13-211 (DC), was anchored on Section 40 of the
LGC, in relation to Section 12 of the OEC, that is, having been convicted of a crime
punishable by imprisonment of one year or more, and involving moral turpitude, former
President Estrada must be disqualified to run for and hold public elective office
notwithstanding the fact that he is a grantee of a pardon that includes a statement expressing
"[h]e is hereby restored to his civil and political rights." Risos-Vidal theorizes that former
President Estrada is disqualified from running for Mayor of Manila inthe May 13, 2013
Elections, and remains disqualified to hold any local elective post despite the presidential
pardon extended to him in 2007 by former President Arroyo for the reason that it (pardon) did
not expressly provide for the remission of the penalty of perpetual absolute disqualification,
particularly the restoration of his (former President Estrada) right to vote and bevoted upon for
public office. She invokes Articles 36 and 41 of the Revised Penal Code as the foundations of
her theory.
It is insisted that, since a textual examination of the pardon given to and accepted by former
President Estrada does not actually specify which political right is restored, it could be inferred
that former President Arroyo did not deliberately intend to restore former President Estradas
rights of suffrage and to hold public office, orto otherwise remit the penalty of perpetual
absolute disqualification. Even if her intention was the contrary, the same cannot be upheld
based on the pardons text.

The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C,
provides that the President of the Philippines possesses the power to grant pardons, along
with other acts of executive clemency, to wit:

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and forfeitures,
after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress.

xxxx

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election

laws, rules, and regulations shall be granted by the President without the favorable
recommendation of the Commission.

It is apparent from the foregoing constitutional provisions that the only instances in which the
President may not extend pardon remain to be in: (1) impeachment cases; (2) cases that
have not yet resulted in a final conviction; and (3) cases involving violations of election laws,
rules and regulations in which there was no favorable recommendation coming from the
COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot
operate to delimit the pardoning power of the President.

In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under the 1935
Constitution,wherein the provision granting pardoning power to the President shared similar
phraseology with what is found in the present 1987 Constitution, the Court then unequivocally
declared that "subject to the limitations imposed by the Constitution, the pardoning power
cannot be restricted or controlled by legislative action." The Court reiterated this
pronouncement in Monsanto v. Factoran, Jr.29 thereby establishing that, under the present
Constitution, "a pardon, being a presidential prerogative, should not be circumscribed by
legislative action." Thus, it is unmistakably the long-standing position of this Court that the
exercise of the pardoning power is discretionary in the President and may not be interfered
with by Congress or the Court, except only when it exceeds the limits provided for by the
Constitution.

This doctrine of non-diminution or non-impairment of the Presidents power of pardon by acts

of Congress, specifically through legislation, was strongly adhered to by an overwhelming
majority of the framers of the 1987 Constitution when they flatly rejected a proposal to carve
out an exception from the pardoning power of the President in the form of "offenses involving
graft and corruption" that would be enumerated and defined by Congress through the
enactment of a law. The following is the pertinent portion lifted from the Record of the
Commission (Vol. II):
MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an amendment on
the same section.

THE PRESIDENT. Commissioner Tan is recognized.

SR. TAN. Madam President, lines 7 to 9 state:

However, the power to grant executive clemency for violations of corrupt practices laws may
be limited by legislation.

I suggest that this be deletedon the grounds that, first, violations of corrupt practices may
include a very little offense like stealing P10; second, which I think is more important, I get the
impression, rightly or wrongly, that subconsciously we are drafting a constitution on the
premise that all our future Presidents will bebad and dishonest and, consequently, their acts
will be lacking in wisdom. Therefore, this Article seems to contribute towards the creation of
an anti-President Constitution or a President with vast responsibilities but no corresponding
power except to declare martial law. Therefore, I request that these lines be deleted.

MR. REGALADO. Madam President,may the Committee react to that?

THE PRESIDENT. Yes, please.

MR. REGALADO. This was inserted here on the resolution of Commissioner Davide because
of the fact that similar to the provisions on the Commission on Elections, the recommendation
of that Commission is required before executive clemency isgranted because violations of the
election laws go into the very political life of the country.

With respect to violations of our Corrupt Practices Law, we felt that it is also necessary to
have that subjected to the same condition because violation of our Corrupt Practices Law may
be of such magnitude as to affect the very economic systemof the country. Nevertheless, as a
compromise, we provided here that it will be the Congress that will provide for the
classification as to which convictions will still require prior recommendation; after all, the
Congress could take into account whether or not the violation of the Corrupt Practices Law is
of such magnitude as to affect the economic life of the country, if it is in the millions or billions
of dollars. But I assume the Congress in its collective wisdom will exclude those petty crimes
of corruption as not to require any further stricture on the exercise of executive clemency
because, of course, there is a whale of a difference if we consider a lowly clerk committing
malversation of government property or funds involving one hundred pesos. But then, we also
anticipate the possibility that the corrupt practice of a public officer is of such magnitude as to
have virtually drained a substantial portion of the treasury, and then he goes through all the
judicial processes and later on, a President who may have close connections with him or out
of improvident compassion may grant clemency under such conditions. That is why we left it
to Congress to provide and make a classification based on substantial distinctions between a
minor act of corruption or an act of substantial proportions. SR. TAN. So, why do we not just
insert the word GROSS or GRAVE before the word "violations"?

MR. REGALADO. We feel that Congress can make a better distinction because "GRAVE" or
"GROSS" can be misconstrued by putting it purely as a policy.

MR. RODRIGO. Madam President.

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. May I speak in favor of the proposed amendment?

THE PRESIDENT. Please proceed.

MR. RODRIGO. The power to grant executive clemency is essentially an executive power,
and that is precisely why it is called executive clemency. In this sentence, which the
amendment seeks to delete, an exception is being made. Congress, which is the legislative
arm, is allowed to intrude into this prerogative of the executive. Then it limits the power of
Congress to subtract from this prerogative of the President to grant executive clemency by
limiting the power of Congress to only corrupt practices laws. There are many other crimes
more serious than these. Under this amendment, Congress cannot limit the power of
executive clemency in cases of drug addiction and drug pushing which are very, very serious
crimes that can endanger the State; also, rape with murder, kidnapping and treason. Aside
from the fact that it is a derogation of the power of the President to grant executive clemency,
it is also defective in that it singles out just one kind of crime. There are far more serious
crimes which are not included.

MR. REGALADO. I will just make one observation on that. We admit that the pardoning power
is anexecutive power. But even in the provisions on the COMELEC, one will notice that
constitutionally, it is required that there be a favorable recommendation by the Commission
on Elections for any violation of election laws.

At any rate, Commissioner Davide, as the principal proponent of that and as a member of the
Committee, has explained in the committee meetings we had why he sought the inclusion of
this particular provision. May we call on Commissioner Davide to state his position.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I am constrained to rise to object to the proposal. We have just approved the
Article on Accountability of Public Officers. Under it, it is mandated that a public office is a
public trust, and all government officers are under obligation to observe the utmost of
responsibility, integrity, loyalty and efficiency, to lead modest lives and to act with patriotism
and justice.

In all cases, therefore, which would go into the verycore of the concept that a public office is a
public trust, the violation is itself a violation not only of the economy but the moral fabric of
public officials. And that is the reason we now want that if there is any conviction for the
violation of the Anti-Graft and Corrupt Practices Act, which, in effect, is a violation of the public
trust character of the public office, no pardon shall be extended to the offender, unless some
limitations are imposed.

Originally, my limitation was, it should be with the concurrence of the convicting court, but the
Committee left it entirely to the legislature to formulate the mechanics at trying, probably, to
distinguish between grave and less grave or serious cases of violation of the Anti-Graft and
Corrupt Practices Act. Perhaps this is now the best time, since we have strengthened the
Article on Accountability of Public Officers, to accompany it with a mandate that the
Presidents right to grant executive clemency for offenders or violators of laws relating to the
concept of a public office may be limited by Congress itself.

MR. SARMIENTO. Madam President.

THE PRESIDENT. Commissioner Sarmiento is recognized.

MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.

Madam President, over and over again, we have been saying and arguing before this
Constitutional Commission that we are emasculating the powers of the presidency, and this
provision to me is another clear example of that. So, I speak against this provision. Even the
1935 and the 1973 Constitutions do not provide for this kind of provision.

I am supporting the amendment by deletion of Commissioner Tan.

MR. ROMULO. Commissioner Tingson would like to be recognized.

THE PRESIDENT. Commissioner Tingson is recognized.

MR. TINGSON. Madam President, I am also in favor of the amendment by deletion because I
am in sympathy with the stand of Commissioner Francisco "Soc" Rodrigo. I do believe and we
should remember that above all the elected or appointed officers of our Republic, the leader is
the President. I believe that the country will be as the President is, and if we systematically
emasculate the power of this presidency, the time may come whenhe will be also handcuffed
that he will no longer be able to act like he should be acting.

So, Madam President, I am in favor of the deletion of this particular line.

MR. ROMULO. Commissioner Colayco would like to be recognized.

THE PRESIDENT. Commissioner Colayco is recognized.

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

I seldom rise here to object to or to commend or to recommend the approval of proposals, but
now I find that the proposal of Commissioner Tan is worthy of approval of this body.

Why are we singling out this particular offense? There are other crimes which cast a bigger
blot on the moral character of the public officials.

Finally, this body should not be the first one to limit the almost absolute power of our Chief
Executive in deciding whether to pardon, to reprieve or to commute the sentence rendered by
the court.

I thank you.

THE PRESIDENT. Are we ready to vote now?

MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will be
Commissioner Natividad.

THE PRESIDENT. Commissioner Padilla is recognized.

MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been called
the Anti-Graft Court, so if this is allowed to stay, it would mean that the Presidents power
togrant pardon or reprieve will be limited to the cases decided by the Anti-Graft Court, when
as already stated, there are many provisions inthe Revised Penal Code that penalize more
serious offenses.

Moreover, when there is a judgment of conviction and the case merits the consideration of the
exercise of executive clemency, usually under Article V of the Revised Penal Code the judge
will recommend such exercise of clemency. And so, I am in favor of the amendment proposed
by Commissioner Tan for the deletion of this last sentence in Section 17.

THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?

MR. NATIVIDAD. Just one more.

THE PRESIDENT. Commissioner Natividad is recognized.

MR. NATIVIDAD. I am also against this provision which will again chip more powers from the
President. In case of other criminals convicted in our society, we extend probation to them
while in this case, they have already been convicted and we offer mercy. The only way we
can offer mercy to them is through this executive clemency extended to them by the President.
If we still close this avenue to them, they would be prejudiced even worse than the murderers
and the more vicious killers in our society. I do not think they deserve this opprobrium and
punishment under the new Constitution.

I am in favor of the proposed amendment of Commissioner Tan.

MR. ROMULO. We are ready tovote, Madam President.

THE PRESIDENT. Is this accepted by the Committee?

MR. REGALADO. The Committee, Madam President, prefers to submit this to the floor and
also because of the objection of the main proponent, Commissioner Davide. So we feel that
the Commissioners should vote on this question.

VOTING

THE PRESIDENT. As many as are in favor of the proposed amendment of Commissioner

Tan to delete the last sentence of Section 17 appearing on lines 7, 8 and 9, please raise their
hand. (Several Members raised their hand.)

As many as are against, please raise their hand. (Few Members raised their hand.)

The results show 34 votes in favor and 4 votes against; the amendment is
approved.30 (Emphases supplied.)
The proper interpretation of Articles

36 and 41 of the Revised Penal Code.

The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal
Code cannot, in any way, serve to abridge or diminish the exclusive power and prerogative of
the President to pardon persons convicted of violating penal statutes.

The Court cannot subscribe to Risos-Vidals interpretation that the said Articles contain
specific textual commands which must be strictly followed in order to free the beneficiary of
presidential grace from the disqualifications specifically prescribed by them.

Again, Articles 36 and 41 of the Revised Penal Code provides:

ART. 36. Pardon; its effects. A pardon shall not work the restoration of the right to hold
publicoffice, or the right of suffrage, unless such rights be expressly restored by the terms of
the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal Their accessory penalties. The
penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as the case may be, and that of
perpetual absolute disqualification which the offender shall suffer even though pardoned as to
the principal penalty, unless the same shall have been expressly remitted in the pardon.
(Emphases supplied.)

A rigid and inflexible reading of the above provisions of law, as proposed by Risos-Vidal, is
unwarranted, especially so if it will defeat or unduly restrict the power of the President to grant
executive clemency.

It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and
free from ambiguity, it must be given its literal meaning and applied without attempted
interpretation. Verba legis non est recedendum. From the words of a statute there should be
no departure.31 It is this Courts firm view that the phrase in the presidential pardon at issue
which declares that former President Estrada "is hereby restored to his civil and political
rights" substantially complies with the requirement of express restoration.

The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was no
express remission and/or restoration of the rights of suffrage and/or to hold public office in the
pardon granted to former President Estrada, as required by Articles 36 and 41 of the Revised
Penal Code.

Justice Leonen posits in his Dissent that the aforementioned codal provisions must be
followed by the President, as they do not abridge or diminish the Presidents power to extend
clemency. He opines that they do not reduce the coverage of the Presidents pardoning power.
Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or form. They only provide a
procedural prescription. They are not concerned with areas where or the instances when the
President may grant pardon; they are only concerned with how he or she is to exercise such
power so that no other governmental instrumentality needs to intervene to give it full effect.

All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the pardon
the restoration of the rights of suffrage and to hold public office, or the remission of the
accessory penalty of perpetual absolute disqualification,he or she should do so expressly.
Articles 36 and 41 only ask that the President state his or her intentions clearly, directly, firmly,
precisely, and unmistakably. To belabor the point, the President retains the power to make
such restoration or remission, subject to a prescription on the manner by which he or she is to
state it.32

With due respect, I disagree with the overbroad statement that Congress may dictate as to
how the President may exercise his/her power of executive clemency. The form or manner by
which the President, or Congress for that matter, should exercise their respective
Constitutional powers or prerogatives cannot be interfered with unless it is so provided in the
Constitution. This is the essence of the principle of separation of powers deeply ingrained in
our system of government which "ordains that each of the three great branches of
government has exclusive cognizance of and is supreme in matters falling within its own
constitutionally allocated sphere."33Moreso, this fundamental principle must be observed if
noncompliance with the form imposed by one branch on a co-equal and coordinate branch
will result into the diminution of an exclusive Constitutional prerogative.

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way
that will give full effect to the executive clemency granted by the President, instead of
indulging in an overly strict interpretation that may serve to impair or diminish the import of the
pardon which emanated from the Office of the President and duly signed by the Chief
Executive himself/herself. The said codal provisions must be construed to harmonize the
power of Congress to define crimes and prescribe the penalties for such crimes and the
power of the President to grant executive clemency. All that the said provisions impart is that
the pardon of the principal penalty does notcarry with it the remission of the accessory
penalties unless the President expressly includes said accessory penalties in the pardon. It
still recognizes the Presidential prerogative to grant executive clemency and, specifically, to
decide to pardon the principal penalty while excluding its accessory penalties or to pardon
both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the
President on the penalties imposedin accordance with law.

A close scrutiny of the text of the pardon extended to former President Estrada shows that
both the principal penalty of reclusion perpetua and its accessory penalties are included in the
pardon. The first sentence refers to the executive clemency extended to former President
Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of
reclusion perpetua. The latter is the principal penalty pardoned which relieved him of
imprisonment. The sentence that followed, which states that "(h)e is hereby restored to his
civil and political rights," expressly remitted the accessory penalties that attached to the
principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the
Revised Penal Code, it is indubitable from the textof the pardon that the accessory penalties
of civil interdiction and perpetual absolute disqualification were expressly remitted together
with the principal penalty of reclusion perpetua.

In this jurisdiction, the right toseek public elective office is recognized by law as falling under
the whole gamut of civil and political rights.
Section 5 of Republic Act No. 9225,34 otherwise known as the "Citizenship Retention and
Reacquisition Act of 2003," reads as follows:

Section 5. Civil and Political Rights and Liabilities. Those who retain or reacquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following
conditions: (1) Those intending to exercise their right of suffrage must meet the requirements
under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as
"The Overseas Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualifications for
holding such public office as required by the Constitution and existing laws and, at the time of
the filing of the certificate of candidacy, make a personal and sworn renunciation of any and
all foreign citizenship before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear an oath of allegiance to the
Republic of the Philippines and its duly constituted authorities prior to their assumption of
office: Provided, That they renounce their oath of allegiance to the country where they took
that oath; (4) Those intending to practice their profession in the Philippines shall apply with
the proper authority for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot
be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which theyare
naturalized citizens; and/or

(b) are in active service as commissioned or non commissioned officers in the armed forces of
the country which they are naturalized citizens. (Emphases supplied.)

No less than the International Covenant on Civil and Political Rights, to which the Philippines
is a signatory, acknowledges the existence of said right. Article 25(b) of the Convention states:
Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in Article 2 and without unreasonable restrictions:

xxxx

(b) To vote and to be electedat genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will
of the electors[.] (Emphasis supplied.)

Recently, in Sobejana-Condon v. Commission on Elections,35 the Court unequivocally referred

to the right to seek public elective office as a political right, to wit:

Stated differently, it is an additional qualification for elective office specific only to Filipino
citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative
act that restores their right to run for public office. The petitioners failure to comply there with
in accordance with the exact tenor of the law, rendered ineffectual the Declaration of
Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is
yet to regain her political right to seek elective office. Unless she executes a sworn
renunciation of her Australian citizenship, she is ineligible to run for and hold any elective
office in the Philippines. (Emphasis supplied.)

Thus, from both law and jurisprudence, the right to seek public elective office is unequivocally
considered as a political right. Hence, the Court reiterates its earlier statement that the pardon
granted to former President Estrada admits no other interpretation other than to mean that,
upon acceptance of the pardon granted tohim, he regained his FULL civil and political rights
including the right to seek elective office.

On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said penal
provisions; and prescribes a formal requirement that is not only unnecessary but, if insisted
upon, could be in derogation of the constitutional prohibition relative to the principle that the
exercise of presidential pardon cannot be affected by legislative action.

Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v. Factoran,

Jr.36 to justify her argument that an absolute pardon must expressly state that the right to hold
public office has been restored, and that the penalty of perpetual absolute disqualification has
been remitted.

This is incorrect.

Her reliance on said opinions is utterly misplaced. Although the learned views of Justices
Teodoro R. Padilla and Florentino P. Feliciano are to be respected, they do not form partof the
controlling doctrine nor to be considered part of the law of the land. On the contrary, a careful
reading of the majority opinion in Monsanto, penned by no less than Chief Justice Marcelo B.
Fernan, reveals no statement that denotes adherence to a stringent and overly nuanced
application of Articles 36 and 41 of the Revised Penal Code that will in effect require the
President to use a statutorily prescribed language in extending executive clemency, even if
the intent of the President can otherwise be deduced from the text or words used in the
pardon. Furthermore, as explained above, the pardon here is consistent with, and not
contrary to, the provisions of Articles 36 and 41.

The disqualification of former President Estrada under Section 40 of the LGC in relation to
Section 12 of the OEC was removed by his acceptance of the absolute pardon granted to him.

Section 40 of the LGC identifies who are disqualified from running for any elective local
position. Risos-Vidal argues that former President Estrada is disqualified under item (a), to
wit:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after serving
sentence[.] (Emphasis supplied.)

Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for an
exception, to wit:

Section 12. Disqualifications. x x x unless he has been given plenary pardon or granted
amnesty. (Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former President Estradas conviction for plunder
disqualifies him from running for the elective local position of Mayor of the City of Manila
under Section 40(a) of the LGC. However, the subsequent absolute pardon granted to former
President Estrada effectively restored his right to seek public elective office. This is made
possible by reading Section 40(a) of the LGC in relation to Section 12 of the OEC.

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in
absolute terms, Section 12 of the OEC provides a legal escape from the prohibition a
plenary pardon or amnesty. In other words, the latter provision allows any person who has
been granted plenary pardon or amnesty after conviction by final judgment of an offense
involving moral turpitude, inter alia, to run for and hold any public office, whether local or
national position.

Take notice that the applicability of Section 12 of the OEC to candidates running for local
elective positions is not unprecedented. In Jalosjos, Jr. v. Commission on Elections,37 the
Court acknowledged the aforementioned provision as one of the legal remedies that may be
availed of to disqualify a candidate in a local election filed any day after the last day for filing of
certificates of candidacy, but not later than the date of proclamation.38 The pertinent ruling in
the Jalosjos case is quoted as follows:

What is indisputably clear is that false material representation of Jalosjos is a ground for a
petition under Section 78. However, since the false material representation arises from a
crime penalized by prision mayor, a petition under Section 12 ofthe Omnibus Election Code or
Section 40 of the Local Government Code can also be properly filed. The petitioner has a
choice whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election
Code, or on Section 40 of the Local Government Code. The law expressly provides multiple
remedies and the choice of which remedy to adopt belongs to petitioner.39 (Emphasis
supplied.)

The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidals declaration, the third preambular clause of the pardon, i.e.,
"[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective
position or office," neither makes the pardon conditional, nor militate against the conclusion
that former President Estradas rights to suffrage and to seek public elective office have been
restored.

This is especially true as the pardon itself does not explicitly impose a condition or limitation,
considering the unqualified use of the term "civil and political rights"as being restored.
Jurisprudence educates that a preamble is not an essential part of an act as it is an
introductory or preparatory clause that explains the reasons for the enactment, usually
introduced by the word "whereas."40 Whereas clauses do not form part of a statute because,
strictly speaking, they are not part of the operative language of the statute.41 In this case, the
whereas clause at issue is not an integral part of the decree of the pardon, and therefore,
does not by itself alone operate to make the pardon conditional or to make its effectivity
contingent upon the fulfilment of the aforementioned commitment nor to limit the scope of the
pardon.

On this matter, the Court quotes with approval a relevant excerpt of COMELEC
Commissioner Maria Gracia Padacas separate concurring opinion in the assailed April 1,
2013 Resolution of the COMELEC in SPA No. 13-211 (DC), which captured the essence of
the legal effect of preambular paragraphs/whereas clauses, viz:
The present dispute does not raise anything which the 20 January 2010 Resolution did not
conclude upon. Here, Petitioner Risos-Vidal raised the same argument with respect to the 3rd
"whereas clause" or preambular paragraph of the decree of pardon. It states that "Joseph
Ejercito Estrada has publicly committed to no longer seek any elective position or office." On
this contention, the undersigned reiterates the ruling of the Commission that the 3rd
preambular paragraph does not have any legal or binding effect on the absolute nature of the
pardon extended by former President Arroyo to herein Respondent. This ruling is consistent
with the traditional and customary usage of preambular paragraphs. In the case of Echegaray
v. Secretary of Justice, the Supreme Court ruled on the legal effect of preambular paragraphs
or whereas clauses on statutes. The Court stated, viz.:

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show
its intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a
statute is clear and unambiguous, the preamble can neither expand nor restrict its operation
much less prevail over its text.

If former President Arroyo intended for the pardon to be conditional on Respondents promise
never to seek a public office again, the former ought to have explicitly stated the same in the
text of the pardon itself. Since former President Arroyo did not make this an integral part of the
decree of pardon, the Commission is constrained to rule that the 3rd preambular clause
cannot be interpreted as a condition to the pardon extended to former President
Estrada.42 (Emphasis supplied.)

Absent any contrary evidence, former President Arroyos silence on former President
Estradas decision torun for President in the May 2010 elections against, among others, the
candidate of the political party of former President Arroyo, after the latters receipt and
acceptance of the pardon speaks volume of her intention to restore him to his rights to
suffrage and to hold public office.

Where the scope and import of the executive clemency extended by the President is in issue,
the Court must turn to the only evidence available to it, and that is the pardon itself. From a
detailed review ofthe four corners of said document, nothing therein gives an iota of intimation
that the third Whereas Clause is actually a limitation, proviso, stipulation or condition on the
grant of the pardon, such that the breach of the mentioned commitment not to seek public
office will result ina revocation or cancellation of said pardon. To the Court, what it is simply is
a statement of fact or the prevailing situation at the time the executive clemency was granted.
It was not used as a condition to the efficacy orto delimit the scope of the pardon.

Even if the Court were to subscribe to the view that the third Whereas Clausewas one of the
reasons to grant the pardon, the pardon itself does not provide for the attendant consequence
of the breach thereof. This Court will be hard put to discern the resultant effect of an eventual
infringement. Just like it will be hard put to determine which civil or political rights were
restored if the Court were to take the road suggested by Risos-Vidal that the statement "[h]e
is hereby restored to his civil and political rights" excludes the restoration of former President
Estradas rights to suffrage and to hold public office. The aforequoted text ofthe executive
clemency granted does not provide the Court with any guide asto how and where to draw the
line between the included and excluded political rights.

Justice Leonen emphasizes the point that the ultimate issue for resolution is not whether the
pardon is contingent on the condition that former President Estrada will not seek janother
elective public office, but it actually concerns the coverage of the pardon whether the
pardon granted to former President Estrada was so expansive as to have restored all his
political rights, inclusive of the rights of suffrage and to hold public office. Justice Leonen is of
the view that the pardon in question is not absolute nor plenary in scope despite the statement
that former President Estrada is "hereby restored to his civil and political rights," that is, the
foregoing statement restored to former President Estrada all his civil and political rights
except the rights denied to him by the unremitted penalty of perpetual absolute
disqualification made up of, among others, the rights of suffrage and to hold public office. He
adds that had the President chosen to be so expansive as to include the rights of suffrage and
to hold public office, she should have been more clear on her intentions.

However, the statement "[h]e is hereby restored to his civil and political rights," to the mind of
the Court, iscrystal clear the pardon granted to former President Estrada was absolute,
meaning, it was not only unconditional, it was unrestricted in scope, complete and plenary in
character, as the term "political rights"adverted to has a settled meaning in law and
jurisprudence.

With due respect, I disagree too with Justice Leonen that the omission of the qualifying word
"full" can be construed as excluding the restoration of the rights of suffrage and to hold public
office. There appears to be no distinction as to the coverage of the term "full political rights"
and the term "political rights" used alone without any qualification. How to ascribe to the latter
term the meaning that it is "partial" and not "full" defies ones understanding. More so, it will be
extremely difficult to identify which of the political rights are restored by the pardon, when the
text of the latter is silent on this matter. Exceptions to the grant of pardon cannot be presumed
from the absence of the qualifying word "full" when the pardon restored the "political rights" of
former President Estrada without any exclusion or reservation.

Therefore, there can be no other conclusion but to say that the pardon granted to former
President Estrada was absolute in the absence of a clear, unequivocal and concrete factual
basis upon which to anchor or support the Presidential intent to grant a limited pardon.

To reiterate, insofar as its coverageis concerned, the text of the pardon can withstand close
scrutiny even under the provisions of Articles 36 and 41 of the Revised Penal Code.

The COMELEC did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed Resolutions.

In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did not
commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the
assailed Resolutions.

The Court has consistently held that a petition for certiorariagainst actions of the COMELEC is
confined only to instances of grave abuse of discretion amounting to patentand substantial
denial of due process, because the COMELEC is presumed to be most competent in matters
falling within its domain.43

As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of power due to
passion, prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of
power that amounts to an evasion or refusal to perform a positive duty enjoined by law or to
act at all in contemplation of law. For an act to be condemned as having been done with grave
abuse of discretion, such an abuse must be patent and gross.44

The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual or legal
bases to prove that the assailed COMELEC Resolutions were issued in a "whimsical, arbitrary
or capricious exercise of power that amounts to an evasion orrefusal to perform a positive
duty enjoined by law" or were so "patent and gross" as to constitute grave abuse of discretion.

On the foregoing premises and conclusions, this Court finds it unnecessary to separately
discuss Lim's petition-in-intervention, which substantially presented the same arguments as
Risos-Vidal's petition.

WHEREFORE, the petition for certiorari and petition-inintervention are DISMISSED. The
Resolution dated April 1, 2013 of the Commission on Elections, Second Division, and the
Resolution dated April 23, 2013 of the Commission on Elections, En bane, both in SPA No.
13-211 (DC), are AFFIRMED.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ARTURO D. BRION* DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE MARVIC M.V.F. LEONEN

Associate Justice Associate Justice

FRANCIS H. JARDELEZA**
Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court.
MARIA LOURDES P.A. SERENO
Chief Justice

Footnotes

*
On official leave .

**
No part.

1 Rollo (Vol. I), pp. 39-46.

2 Id. at 49-50.

3
Id. at 395-414.

4
Id. at 260-262.

5 Id. at 265.

6
Id.

7 Rollo (Vol. II), p. 615.

8 Id. at 509-533 and 534-572.

9
Pormento v. Estrada, G.R. No. 191988, August 31, 2010, 629 SCRA 530.

10
Rollo (Vol. I), p. 266.

11 Id. at 271.

12 Id. at 43.

13
Id.

14
Id. at 10-11.

15 Id. at 438.

16 Id. at 12-15.

17
Id. at 25.

18 252 Phil. 192, 207 (1989).

19
Rollo (Vol. I), p. 29.
20 Rollo (Vol. II), p. 498.

21 Id. at 498-499.

22 Id. at 502.

23
Id. at 503.

24
Id. at 505.

25 Id. at 582-596.

26
Id. at 607.

27 71 Phil. 34, 38 (1940).

28 72 Phil. 441, 442 (1941).

29
Supra note 18 at 202.

30
Records of the Constitutional Commission of 1986 (Vol. II), July 31, 1986, pp. 524-526.

31 Republic v. Camacho, G.R. No. 185604, June 13, 2013, 698 SCRA 380, 398.

32 Dissenting Opinion (Justice Marvic M.V.F. Leonen), p. 42.

33
Bureau of Customs Employees Association (BOCEA) v. Teves, G.R. No. 181704,
December 6, 2011, 661 SCRA 589, 604.

34
An Act Making the Citizenship of Philippine Citizens who Acquire Foreign Citizenship
Permanent, Amending for the Purpose Commonwealth Act No. 63, as amended, and for
Other Purposes.

35 G.R. No. 198742, August 10, 2012, 678 SCRA 267, 292.

36
Supra note 18.

37
G.R. Nos. 193237 and 193536, October 9, 2012, 683 SCRA 1.

38 Commission on Elections Resolution No. 9523, Rule 25, Section 3.

39 Jalosjos, Jr. v. Commission on Elections, supra note 37 at 30-31.

40
People v. Balasa, 356 Phil. 362, 396 (1998).

41
Llamado v. Court of Appeals, 256 Phil. 328, 339 (1989).

42
Rollo (Vol. I), p. 46.
43 Naval v. Commission on Elections, G.R. No. 207851, July 8, 2014.

44 Hayudini v. Commission on Elections, G.R. No. 207900, April 22, 2014.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 181293 February 23, 2015

ANA THERESIA "RISA" HONTIVEROS-BARAQUEL, DANIEL L. EDRALIN, VICTOR M.

GONZALES, SR., JOSE APOLLO R. ADO, RENE D. SORIANO, ALLIANCE OF
PROGRESSIVE LABOR, BUKLURAN NG MANGGAGAWANG PILIPINO, LAHING
PILIPINO MULTIPURPOSE TRANSPORT SERVICE COOPERATIVE, PNCC SKYWAY
CORPORATION EMPLOYEES UNION (PSCEU), and PNCC TRAFFIC MANAGEMENT &
SECURITY DEPARTMENT WORKERS ORGANIZATION (PTMSDWO), Petitioners,
vs.
TOLL REGULATORY BOARD, THE SECRETARY OF THE DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS (DOTC), PNCC SKYWAY CORPORATION,
PHILIPPINE NATIONAL CONSTRUCTION CORPORATION, SKYWAY O & M
CORPORATION, and CITRA METRO MANILA TOLLWAYS CORP.,Respondents.

DECISION

SERENO, CJ:

This is an original petition for certiorari and prohibition under Rule 65 of the Rules of Court,
with a prayer for the issuance of a writ of preliminary injunction and/or temporary restraining
order, seeking the annulment of the following:

1. The Amendment to the Supplemental Toll Operation Agreement executed on 18 July 2007
between the Republic of the Philippines, the Philippine National Construction Corporation,
and Citra Metro Manila Tollways Corporation;

2. The Memorandum dated 20 July 2007 of the Secretary of Transportation and

Communications, approving the Amendment to the Supplemental Toll Operation Agreement;

3. The Memorandum of Agreement executed on 21 December 2007 between the Philippine

National Construction Corporation, PNCC Skyway Corporation, and Citra Metro Manila
Tollways Corporation; and

4. The Toll Operation Certificate issued by the Toll Regulatory Board on 28 December 2007 in
favor of Skyway O & M Corporation.

The annulment of the above is sought for being unconstitutional, contrary to law, and grossly
disadvantageous to the government. Petitioners also seek to prohibit Skyway O & M
Corporation from assuming operations and maintenance responsibilities over the Skyway toll
facilities. ANTECEDENT FACTS

The Toll Regulatory Board (TRB) was created on 31 March 1977 by Presidential Decree No.
(P.D.) 11121 in order to supervise and regulate, on behalf of the government, the collection of
toll fees and the operation of toll facilities by the private sector.
On the same date, P.D. 11132 was issued granting to the Construction and Development
Corporation of the Philippines (now Philippine National Construction Corporation or PNCC)
the right, privilege, and authority to construct, operate, and maintain toll facilities in the North
and South Luzon Toll Expressways for a period of 30 years starting 1 May1977.

TRB and PNCC later entered into a Toll Operation Agreement,3 which prescribed the
operating conditions of the right granted to PNCC under P.D. 1113.

P.D. 1113 was amended by P.D. 1894,4 which granted PNCC the right, privilege, and
authority to construct, maintain, and operate the North Luzon, South Luzon and Metro Manila
Expressways, together with the toll facilities appurtenant thereto. The term of 30 years
provided under P. D. 1113 starting from 1 May 1977 remained the same for the North and the
South Luzon Expressways, while the franchise granted for the Metro Manila Expressway
(MME) provided a term of 30 years commencing from the date of completion of the project.

On 22 September 1993, PNCC entered into an agreement5 with PT Citra Lamtoro Gung
Persada (CITRA), a limited liability company organized and established under the laws of the
Republic of Indonesia, whereby the latter committed to provide PNCC with a pre-feasibility
study on the proposed MME project. The agreement was supplemented6 on 14 February 1994
with a related undertaking on the part of CITRA. CITRA was to provide a preliminary feasibility
study on the Metro Manila Skyways (MMS) project, a system of elevated roadway networks
passing through the heart of the Metropolitan Manila area. In order to accelerate the actual
implementation of both the MME and the MMS projects, PNCC and CITRA entered into a
second agreement.7 Through that agreement, CITRA committed to finance and undertake the
preparation, updating, and revalidation of previous studies on the construction, operation, and
maintenance of the projects.

As a result of the feasibility and related studies, PNCC and CITRA submitted, through the
TRB, a Joint Investment Proposal (JIP) to the Republic of the Philippines.8 The JIP embodied
the implementation schedule for the financing, design and construction of the MMS in three
stages: the South Metro Manila Skyway, the North Metro Manila Skyway, and the Central
Metro Manila Skyway.9

The TRB reviewed, evaluated and approved the JIP, particularly as it related to Stage 1,
Phases 1 and 2; and Stage 2, Phase 1 of the South Metro Manila Skyway.

On 30 August 1995, PNCC and CITRA entered into a Business and Joint Venture
Agreement10 and created the Citra Metro Manila Tollways Corporation (CMMTC). CMMTC
was a joint venture corporation organized under Philippine laws to serve as a channel through
which CITRA shall participate in the construction and development of the project.

On 27 November 1995, the Republic of the Philippines - through the TRB - as Grantor,
CMMTC as Investor, and PNCC as Operator executed a Supplemental Toll Operation
Agreement (STOA)11 covering Stage 1, Phases 1 and 2; and Stage 2, Phase 1 of the South
Metro Manila Skyway. Under the STOA, the design and construction of the project roads
became the primary and exclusive privilege and responsibility of CMMTC. The operation and
maintenance of the project roads became the primary and exclusive privilege and
responsibility of the PNCC Skyway Corporation (PSC), a wholly owned subsidiary of PNCC,
which undertook and performed the latter's obligations under the STOA.

CMMTC completed the design and construction of Stage 1 of the South Metro Manila Skyway,
which was operated and maintained by PSC.12
On 18 July 2007, the Republic of the Philippines, through the TRB, CMMTC, and PNCC
executed the assailed Amendment to the Supplemental Toll Operation Agreement
(ASTOA).13 The ASTOA incorporated the amendments, revisions, and modifications
necessary to cover the design and construction of Stage 2 of the South Metro Manila Skyway.
Also under the ASTOA, Skyway 0 & M Corporation (SOMCO) replaced PSC in performing the
operations and maintenance of Stage 1 of the South Metro Manila Skyway.

Pursuant to the authority granted to him under Executive Order No. (E.O.) 49714 dated 24
January 2006, Department of Transportation and Communications (DOTC) Secretary
Leandro Mendoza approved the ASTOA through the challenged Memorandum dated 20 July
2007.15

On 21 December 2007, PNCC, PSC, and CMMTC entered into the assailed Memorandum of
Agreement (MOA)16providing for the successful and seamless assumption by SOMCO of the
operations and maintenance of Stage 1 of the South Metro Manila Skyway. Under the MOA,
PSC received the amount of P320 million which was used for the settlement of its liabilities
arising from the consequent retrenchment or separation of its affected employees.

The TRB issued the challenged Toll Operation Certificate (TOC)17 to SOM CO on 28
December 2007, authorizing the latter to operate and maintain Stage 1 of the South Metro
Manila Skyway effective 10:00 p.m. on 31December2007.

Meanwhile, on 28 December 2007, petitioner PNCC Traffic Management and Security

Department Workers Organization (PTMSDWO) filed a Notice of Strike against PSC on the
ground of unfair labor practice, specifically union busting.18 The Secretary of Labor and
Employment19 assumed jurisdiction over the dispute in an Order dated 31 December 2007 and
set the initial hearing of the case on 2 January 2008.20

On 3 January 2008, petitioners PTMSDWO and PNCC Skyway Corporation Employees

Union (PSCEU) filed before the Regional Trial Court of Paraaque City, Branch 258 (RTC), a
complaint against respondents TRB, PNCC, PSC, CMMTC, and SOMCO. The complaint was
for injunction and prohibition with a prayer for a writ of preliminary injunction and/or a
temporary restraining order, and sought to prohibit the implementation of the AS TOA and the
MOA, as well as the assumption of the toll operations by SOMCO.21 Petitioners PSCEU and
PTMSDWO also sought the subsequent nullification of the ASTOA and the MOA for being
contrary to law and for being grossly disadvantageous to the government.22 They later filed an
Amended Complaint23 dated 8 January 2008, additionally praying that PSC be allowed to
continue the toll operations. With the exception of TRB, all defendants therein filed their
Opposition.

On 23 January 2008, the RTC issued an Order24 denying the prayer for the issuance of a
temporary restraining order and/or writ of preliminary injunction. According to the RTC,
petitioners were seeking to enjoin a national government infrastructure project. Under
Republic Act No. (R.A.) 8975,25 lower courts are prohibited from issuing a temporary
restraining order or preliminary injunction against the government - or any person or entity
acting under the government's direction - to restrain the execution, implementation, or
operation of any such contract or project. Furthermore, the RTC ruled that it could no longer
issue a temporary restraining order or preliminary injunction, considering that the act sought
to be restrained had already been consummated.26 The AS TOA, the MOA, and the
assumption of the toll operations by SOMCO took effect at 10:00 p.m. on 31 December 2007,
while petitioners PSCEU and PTMSDWO sought to prohibit their implementation only on 3
January 2008.
In view of its denial of the ancillary prayer, the RTC required defendants to file their respective
Answers to the Amended Complaint.27

On 28 January 2008, petitioners PSCEU and PTMSDWO filed a Notice of Dismissal with
Urgent Ex-Parte Motion for the Issuance of Order Confirming the Dismissal,28 considering that
no Answers had yet been filed. On the basis thereof, the R TC dismissed the case without
prejudice on 29 January 2008.29

On 4 February 2008, petitioners filed the instant Petition30 before this Court. On 13 February
2008, we required respondents to comment on the same.31

Meanwhile, defendants PNCC32 and PSC33 filed their respective Motions for Partial
Reconsideration of the Order of the R TC dismissing the case without prejudice. Both argued
that the RTC should have dismissed the case with prejudice. They pointed out that petitioners
PSCEU and PTMSDWO had acted in bad faith by filing the complaint before the RTC, despite
the pendency of a labor case over which the Secretary of Labor and Employment had
assumed jurisdiction. Defendant CMMTC joined PNCC and PSC in moving for a partial
reconsideration of the RTC Order.34

The RTC denied the Motions for Partial Reconsideration in an Order dated 13 June 2008.35

Before this Court, SOMCO,36 PSC,37 PNCC,38 CMMTC,39 and TRB40 filed their respective
Comments on the Petition.

THE PARTIES' POSITIONS

Petitioners argue that the franchise for toll operations was exclusively vested by P.D. 1113 in
PNCC, which exercised the powers under its franchise through PSC in accordance with the
STOA. By agreeing to the arrangement whereby SOMCO would replace PSC in the toll
operations and management, PNCC seriously breached the terms and conditions of its
undertaking under the franchise and effectively abdicated its rights and privileges in favor of
SOMCO.

Furthermore, the TOC granted to SOMCO was highly irregular and contrary to law, because 1)
it did not indicate the conditions that shall be imposed on SOMCO as provided under P.D.
1112;41 2) none of the requirements on public bidding, negotiations, or even publication was
complied with before the issuance of the TOC to SOMCO; 3) applying the stricter "grandfather
rule," SOMCO does not qualify as a facility operator as defined under R.A. 6957,42 as
amended by R.A. 7718;43 and 4) there were no public notices and hearings conducted wherein
all legitimate issues and concerns about the transfer of the toll operations would have been
properly ventilated.

Petitioners also claim that the approval by the DOTC Secretary of the AS TOA could not take
the place of the presidential approval required under P.D. 111344 and P.D. 189445 concerning
the franchise granted to PNCC.

Finally, petitioners claim that the assumption of the toll operations by SOM CO was grossly
disadvantageous to the government, because 1) for a measly capital investment of P2.5
million, SOMCO stands to earn P400 million in gross revenues based on official and historical
records; 2) with its measly capital, SOMCO would not be able to cover the direct overhead for
personal services in the amount of P226 million as borne out by Commission on Audit reports;
3) the net revenue from toll operations would go to private shareholders of SOMCO, whereas
all earnings of PSC when it was still in charge of the toll operations went to PNCC - the
mother company whose earnings, as an "acquired-asset corporation," formed part of the
public treasury; 4) the new arrangement would result in the poor delivery of toll services by
SOMCO, which had no proven track record; 5) PSC received onlyP320 million as settlement
for the transfer of toll operations to SOMCO.

All respondents counter that petitioners do not have the requisite legal standing to file the
petition. According to respondents, petitioner Hontiveros-Baraquel filed the instant petition as
a legislator in her capacity as party-list representative of Akbayan. As such, she was only
allowed to sue to question the validity of any official action when it infringed on her prerogative
as a legislator.46 Presently, she has cited no such prerogative, power, or privilege that is
adversely affected by the assailed acts.47

While suing as citizens, the individual petitioners have not shown any personal or substantial
interest in the case indicating that they sustained or will sustain direct injury as a result of the
implementation of the assailed acts.48The maintenance of the suit by petitioners as taxpayers
has no merit either because the assailed acts do not involve the disbursement of public
funds.49 Finally, the bringing of the suit by petitioners as people's organizations does not
automatically confer legal standing, especially since petitioner-organizations do not even
allege that they represent their members,50 nor do they cite any particular constitutional
provision that has been violated or disregarded by the assailed acts.51 In fact, the suit raises
only issues of contract law, and none of the petitioners is a party or is privy to the assailed
agreements and issuances.52

Respondents also argue that petitioners violate the hierarchy of courts. In particular, it is
alleged that while lower courts are prohibited from issuing temporary restraining orders or
preliminary injunctions against national government projects under R.A. 8975, the law does
not preclude them from assuming jurisdiction over complaints that seek the nullification of a
national government project as ultimate relief.53

As a final procedural challenge to the petition, respondents aver that petitioners are guilty of
forum shopping. When petitioners filed the instant petition, the case before the R TC seeking
similar reliefs was still pending, as respondents PNCC, PSC and CMMTC had moved for the
partial reconsideration of the RTC's Order of dismissal within the reglementary
period.54 Furthermore, the instant case and the one before the RTC were filed while
petitioners' labor grievances seeking similar reliefs were also being heard before the
Department of Labor and Employment.55

On the merits of the arguments in the petition, respondents argue that nothing in the ASTOA,
the approval thereof by the DOTC Secretary, the MOA, or the TOC was violative of the
Constitution. It is argued that the authority to operate a public utility can be granted by
administrative agencies when authorized by law.56 Under P.D. 1112, the TRB is empowered to
grant authority and enter into contracts for the construction, operation, and maintenance of a
toll facility,57 such as the ASTOA in this case. Also, the ASTOA was an amendment, not to the
legislative franchise of PNCC, but to the STOA previously executed between the Republic of
the Philippines through the TRB, PNCC, and CMMTC.58 In fact, PNCC's franchise was never
sold, transferred, or otherwise assigned to SOMCO59 in the same way that PSC's previous
assumption of the operation and maintenance of the South Metro Manila Skyway did not
amount to a sale, transfer or assignment of PNCC's franchise.60
There can be no valid objection to the approval of the ASTOA by the DOTC Secretary,
because he was authorized by the President to do so by virtue of E.O. 497.61 Also, the phrase
"subject to the approval of the President of the Philippines" in P.D. 1112 and 1113 does not in
any way mean that the presidential approval must be obtained prior to the execution of a
contract, or that the approval be made personally by the President.62 The presidential approval
may be obtained under the doctrine of qualified political agency.63

Respondents argue that there is no merit in the claim that the TOC granted to SOMCO was
highly irregular and contrary to law. First, the TOC clearly states that the toll operation and
maintenance by SOMCO shall be regulated by the Republic of the Philippines in accordance
with P.D. 1112, the STOA, the toll operations and maintenance rules and regulations, and
lawful orders, instructions, and conditions that may be imposed from time to time.64 Second,
there is no need to comply with the public bidding and negotiation requirements, because the
South Metro Manila Skyway is an ongoing project, not a new one.65 Furthermore, the STOA,
which was the basis for the ASTOA, was concluded way before the effectivity of R.A. 918466 in
2003.67

Third, SOMCO is a Filipino corporation with substantial 72% Filipino ownership.68 Fourth, the
law requires prior notice and hearing only in an administrative body's exercise of quasi-judicial
functions.69 In this case, the transfer of the toll operations and maintenance to SOM CO was a
contractual arrangement entered into in accordance with law.70

Finally, the assumption of the toll operation and maintenance by SOMCO is not
disadvantageous to the government. Petitioners belittle the P2.5 million capitalization of
SOMCO, considering that PSC's capitalization at the time it was incorporated was
merely P500,000.71

Respondents claim that under the ASTOA, PNCC shall get a direct share in the toll revenues
without any corollary obligation, unlike the arrangement in the STOA whereby PNCC's 10%
share in the toll revenues was intended primarily for the toll operation and maintenance by
PSC.72

Finally, respondents assert that there is no reason to fear that the assumption by SOMCO
would result in poor delivery of toll services. CITRA and the other shareholders of SOMCO
are entities with experience and proven track record in toll operations.73 Also, SOM CO hired
or absorbed more than 300 PSC employees,74 who brought with them their work expertise and
experience.

ISSUES

The instant case shall be resolved on the basis of the following issues:

Procedural:

I. Whether petitioners have standing;

II. Whether petitioners are guilty of forum-shopping;

Substantive:

III. Whether the TRB has the power to grant authority to operate a toll facility;
IV. Whether the TOC issued to SOMCO was valid;

V. Whether the approval of the ASTOA by the DOTC Secretary was valid; and

VI. Whether the assumption of toll operations by SOMCO is disadvantageous to the

government.

OUR RULING

Not all petitioners have personality to sue.

Standing is a constitutional law concept allowing suits to be brought not necessarily by parties
personally injured by the operation of a law or official action, but by concerned citizens,
taxpayers, or voters who sue in the public interest.75 Determining the standing of concerned
citizens, taxpayers, or voters requires a partial consideration of the substantive merit of the
constitutional question,76 or at least a preliminary estimate thereof.77

In this case, petitioners raise the power of Congress to grant franchises as a constitutional
question. They allege that the execution of the ASTOA and the MOA, the approval of the AS
TOA by the DOTC Secretary and the issuance of the TOC infringed on the constitutional
power of Congress, which has the sole authority to grant franchises for the operation of public
utilities. This Court has had a few occasions to rule that a franchise from Congress is not
required before each and every public utility may operate.78 Unless there is a law that
specifically requires a franchise for the operation of a public utility, particular agencies in the
executive branch may issue authorizations and licenses for the operation of certain classes of
public utilities.79 In the instant case, there is no law that states that a legislative franchise is
necessary for the operation of toll facilities.

In PAL v. Civil Aeronautics Board,80 this Court enunciated:

Congress has granted certain administrative agencies the power to grant licenses for, or to
authorize the operation of certain public utilities. With the growing complexity of modem life,
the multiplication of the subjects of governmental regulation, and the increased difficulty of
administering the laws, there is a constantly growing tendency towards the delegation of
greater powers by the legislature, and towards the approval of the practice by the courts. It is
generally recognized that a franchise may be derived indirectly from the state through a duly
designated agency, and to this extent, the power to grant franchises has frequently been
delegated, even to agencies other than those of a legislative nature. In pursuance of this, it
has been held that privileges conferred by grant by local authorities as agents for the state
constitute as much a legislative franchise as though the grant had been made by an act of the
Legislature.81

It is thus clear that Congress does not have the sole authority to grant franchises for the
operation of public utilities. Considering the foregoing, we find that the petition raises no issue
of constitutional import. More particularly, no legislative prerogative, power, or privilege has
been impaired. Hence, legislators have no standing to file the instant petition, for they are only
allowed to sue to question the validity of any official action when it infringes on their
prerogatives as members of Congress.82 Standing is accorded to them only if there is an
unmistakable showing that the challenged official act affects or impairs their rights and
prerogatives as legislators.83

In line with our ruling in Kilosbayan, Inc. v. Morato,84 the rule concerning a real party in interest
- which is applicable to private litigation rather than the liberal rule on standing, should be
applied to petitioners.

A real party in interest is one who stands to be benefited or injured by the judgment in the suit,
or the party entitled to the avails of the suit.85 One's interest must be personal and not one
based on a desire to vindicate the constitutional right of some third and unrelated party.86 The
purposes of the rule are to prevent the prosecution of actions by persons without any right or
title to or interest in the case; to require that the actual party entitled to legal relief be the one
to prosecute the action; to avoid a multiplicity of suits; and to discourage litigation and keep it
within certain bounds, pursuant to sound public policy.87

At bottom, what is being questioned in the petition is the relinquishment by PSC of the toll
operations in favor of SOMCO, effectively leading to the cessation of the former' s business.
In this case, we find that among petitioners, the only real parties in interest are the labor
unions PSCEU and PTMSDWO.

PSCEU and PTMSDWO filed the petition not as a representative suit on behalf of their
members who are rank-and-file employees of PSC, but as people's organizations "invested
with a public duty to defend the rule of law."88PSCEU and PTMSDWO cite Kilosbayan v.
Ermita89 as authority to support their standing to file the instant suit.

It is well to point out that the Court, in Ermita, accorded standing to people's organizations to
file the suit, because the matter involved therein was the qualification of a person to be
appointed as a member of this Court -"an issue of utmost and far-reaching constitutional
importance."90 As discussed, the instant petition raises no genuine constitutional issues.

Nevertheless, for a different reason, we accord standing to PSCEU and PTMSDWO to file the
instant suit. With the transfer of toll operations to SOMCO and the resulting cessation of
PSC's business comes the retrenchment and separation of all its employees. The existence
of petitioner labor unions would terminate with the dissolution of its employer and the
separation of its members. This is why the petition also prays that this Court issue an order
"that would smoothly preserve the toll operations services of respondent PNCC and/or
respondent PSC under its legislative franchise."91

We have recognized that the right of self-preservation is inherent in every labor union or any
organization for that matter.92 Thus, PSCEU and PTMSDWO, as real parties in interest, have
the personality to question the assumption of the toll operations by SOMCO.

II

PSCEU and PTMSDWO are not guilty of forum-shopping.

Forum shopping refers to the act of availing of several remedies in different courts and/or
administrative agencies, either simultaneously or successively, when these remedies are
substantially founded on the same material facts and circumstances and raise basically the
same issues either pending in or already resolved by some other court or administrative
agency.93 What is pivotal in determining whether forum shopping exists is the vexation caused
to the courts and litigants and the possibility of conflicting decisions being rendered by
different courts and/or administrative agencies upon the same issues.94

The elements of forum shopping are as follows: a) identity of parties or at least such parties
that represent the same interests in both actions; b) identity of rights asserted and the relief
prayed for, the relief founded on the same facts; and c) identity of the two preceding
particulars, such that any judgment rendered in one action will amount to res judicata in the
other.95 Respondents argue that petitioners PSCEU and PTMSDWO committed forum
shopping by filing the complaint for injunction and prohibition before the RTC during the
pendency of NCMB-NCR-NS-12-188-07 entitled In Re: Labor Dispute at PNCC Skyway
Corporation. It was a case they also filed, over which the Secretary of Labor and Employment
has assumed jurisdiction.

The case involves a Notice of Strike filed against PSC on the ground of unfair labor practice.
While the specific act in question is not specified, the prohibited acts constituting unfair labor
practice96 essentially relate to violations concerning the workers' right to
self-organization.97 When compared with the complaint filed with the RTC for injunction and
prohibition seeking to prohibit the implementation of the ASTOA and the MOA, as well as the
assumption of the toll operations by SOM CO for being unconstitutional, contrary to law and
disadvantageous to the government, it is easily discernible that there is no identity of rights
asserted and relief prayed for. These cases are distinct and dissimilar in their nature and
character.

For the sake of argument, let us assume that, in order to hurt the unions, PSC feigned a
cessation of business that led to the retrenchment and separation of all employees. That is an
unfair labor practice. In that complaint, the unions cannot be expected to ask for, or the
Secretary of Labor and Employment to grant, the annulment of the ASTOA and the MOA and
the continuation of toll operations by PSC. The Secretary would only focus on the legality of
the retrenchment and separation, and on the presence or absence of bad faith in PSC's
cessation of business. On the other hand, the complaint before the RTC would require it to
focus on the legality of the ASTOA, the MOA and the transfer of toll operations. Ultimately,
even if the Secretary of Labor and Employment makes a finding of unfair labor practice, this
determination would not amount to res judicata as regards the case before the RTC.

We also reject the claim of respondents that petitioners PSCEU and PTMSDWO committed
forum shopping by filing the instant petition before this Court while the motion for partial
reconsideration of the RTC's Order of dismissal without prejudice was still pending. Section 1,
Rule 17 of the Rules of Court states:

SECTION 1. Dismissal upon notice by plaintiff. - A complaint may be dismissed by the plaintiff
by filing a notice of dismissal at any time before service of the answer or of a motion for
summary judgment. Upon such notice being filed, the court shall issue an order confirming the
dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that
a notice operates as an adjudication upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or including the same claim.

In this case, petitioners PSCEU and PTMSDWO had filed a notice of dismissal of the
complaint before the RTC on 28 January 2008, before respondents filed their Answers. The
following day, the RTC issued an order confirming the dismissal. Under the above-cited rule,
this confirmation is the only qualification imposed on the right of a party to dismiss the action
before the adverse party files an answer.98 In this case, the dismissal of the action therefore
became effective upon that confirmation by the RTC despite the subsequent filing of the
motions for partial reconsideration.

Thus, when the instant petition was filed on 4 February 2008, the complaint before the RTC
was no longer pending. The complaint was dismissed without prejudice by virtue of the notice
of dismissal filed by petitioners PSCEU and PTMSDWO. Consequently, there was not even
any need for petitioners to mention the prior filing and dismissal of the complaint in the
certificate of non-forum shopping in the instant petition,99 but they did so anyway.100

Parenthetically, in their motions for partial reconsideration, respondents PNCC and PSC
insisted that the dismissal should have been with prejudice, because petitioners allegedly
acted in bad faith in filing the notice of dismissal, were guilty of forum shopping, and did not
notify respondents of their intention to file a notice of dismissal. With regard to the first and the
third allegation, petitioners may ask for dismissal at any time before the filing of the answer as
a matter of right, even if the notice cites "the most ridiculous of grounds for dismissal."101 As to
the second, we have already ruled that there was no forum shopping as regards the
successive filings of the labor case and the complaint before the RTC.

II

TRB has the power to grant authority to operate a toll facility.

This matter has already been settled by the Court in Francisco, Jr. v. TRB,102 which ruled thus:

It is abundantly clear that Sections 3 (a) and (e) of P.D. 1112 in relation to Section 4 of P.D.
1894 have invested the TRB with sufficient power to grant a qualified person or entity with
authority to construct, maintain, and operate a toll facility and to issue the corresponding toll
operating permit or TOC.

Sections 3 (a) and (e) of P.D. 1112 and Section 4 of P.D. 1894 amply provide the power to
grant authority to operate toll facilities:

Section 3. Powers and Duties of the Board. - The Board shall have in addition to its general
powers of administration the following powers and duties:

(a) Subject to the approval of the President of the Philippines, to enter into contracts in behalf
of the Republic of the Philippines with persons, natural or juridical, for the construction,
operation and maintenance of toll facilities such as but not limited to national highways, roads,
bridges, and public thoroughfares. Said contract shall be open to citizens of the Philippines
and/or to corporations or associations qualified under the Constitution and authorized by law
to engage in toll operations;

xxxx

(e) To grant authority to operate a toll facility and to issue therefore the necessary "Toll
Operation Certificate" subject to such conditions as shall be imposed by the Board including
inter alia the following:

(1) That the Operator shall desist from collecting toll upon the expiration of the Toll Operation
Certificate.
(2) That the entire facility operated as a toll system including all operation and maintenance
equipment directly related thereto shall be turned over to the government immediately upon
the expiration of the Toll Operation Certificate.

(3) That the toll operator shall not lease, transfer, grant the usufruct of, sell or assign the rights
or privileges acquired under the Toll Operation Certificate to any person, firm, company,
corporation or other commercial or legal entity, nor merge with any other company or
corporation organized for the same purpose, without the prior approval of the President of the
Philippines. In the event of any valid transfer of the Toll Operation Certificate, the Transferee
shall be subject to all the conditions, terms, restrictions and limitations of this Decree as fully
and completely and to the same extent as if the Toll Operation Certificate has been granted to
the same person, firm, company, corporation or other commercial or legal entity.

(4) That in time of war, rebellion, public peril, emergency, calamity, disaster or disturbance of
peace and order, the President of the Philippines may cause the total or partial closing of the
toll facility or order to take over thereof by the Government without prejudice to the payment of
just compensation.

(5) That no guarantee, Certificate of Indebtedness, collateral, securities, or bonds shall be

issued by any government agency or government-owned or controlled corporation on any
financing program of the toll operator in connection with his undertaking under the Toll
Operation Certificate.

(6) The Toll Operation Certificate may be amended, modified or revoked whenever the public
interest so requires.

(a) The Board shall promulgate rules and regulations governing the procedures for the grant
of Toll Certificates. The rights and privileges of a grantee under a Toll Operation Certificate
shall be defined by the Board.

(b) To issue rules and regulations to carry out the purposes of this Decree.

SECTION 4. The Toll Regulatory Board is hereby given jurisdiction and supervision over the
GRANTEE with respect to the Expressways, the toll facilities necessarily appurtenant thereto
and, subject to the provisions of Section 8 and 9 hereof, the toll that the GRANTEE will charge
the users thereof.

By explicit provision of law, the TRB was given the power to grant administrative franchise for
toll facility projects.103 (Emphases supplied)

We cannot abide by the contention of petitioners that the franchise for toll operations was
exclusively vested in PNCC, which effectively breached its franchise when it transferred the
toll operations to SOMCO. First, there is nothing in P.D. 1113 or P.D. 1894 that states that the
franchise granted to PNCC is to the exclusion of all others.

Second, if we were to go by the theory of petitioners, it is only the operation and maintenance
of the toll facilities that is vested with PNCC. This interpretation is contrary to the wording of
P.D. 1113 and P.D. 1894 g ranting PNCC the right, privilege and authority to construct,
operate and maintain the North Luzon, South Luzon and Metro Manila Expressways and their
toll facilities.
It appears that petitioners have confused the franchise granted under P.D. 1113 and P.D.
1894 with particular provisions in the STOA. To clarify, the operation and maintenance of the
project roads were the primary and exclusive privilege and responsibility of PNCC through
PSC under the STOA. On the other hand, the design and construction of the project roads
were the primary and exclusive privilege and responsibility of CMMTC. However, with the
execution of the AS TOA, the parties agreed that SOM CO shall replace PSC in undertaking
the operations and maintenance of the project roads. Thus, the "exclusivity clause" was a
matter of agreement between the parties, which amended it in a later contract; it was not a
matter provided under the law.

Third, aside from having been granted the power to grant administrative franchises for toll
facility projects, TRB is also empowered to modify, amend, and impose additional conditions
on the franchise of PNCC in an appropriate contract, particularly when public interest calls for
it. This is provided under Section 3 of P.D. 1113 and Section 6 of P.D. 1894, to wit:

SECTION 3. This franchise is granted subject to such conditions as may be imposed by the
[Toll Regulatory] Board in an appropriate contract to be executed for this purpose, and with
the understanding and upon the condition that it shall be subject to amendment, alteration or
repeal when public interest so requires.

xxx

SECTION 6. This franchise is granted subject to such conditions, consistent with the
provisions of this Decree, as may be imposed by the Toll Regulatory Board in the Toll
Operation Agreement and such other modifications or amendments that may be made thereto,
and with the understanding and upon the condition that it shall be subject to amendment or
alteration when public interest so dictates.

Section 6 of P.D. 1894 specifically mentions the Toll Operation Agreement. The STOA was
one such modification or amendment of the franchise of PNCC. So was the ASTOA, which
further modified the franchise. PNCC cannot be said to have breached its franchise when it
transferred the toll operations to SOMCO. PNCC remained the franchise holder for the
construction, operation, and maintenance of the project roads; it only opted to partner with
investors in the exercise of its franchise leading to the organization of companies such as
PSC and SOMCO.

Again, considering that PNCC was granted the right, privilege, and authority to construct,
operate, and maintain the North Luzon, South Luzon, and Metro Manila Expressways and
their toll facilities, we have not heard petitioners decrying the "breach" by PNCC of its
franchise when it agreed to make CMMTC responsible for the design and construction of the
project roads under the STOA.

IV

The TOC issued to SOMCO was not irregular.

Petitioners argue that the conditions provided under Section 3(e) of P.D. 1112104 were not
imposed on SOMCO, because these do not appear on the face of the TOC. Petitioners are
mistaken.
The TOC, as a grant of authority from the government, is subject to the latter's control insofar
as the grant affects or concerns the public.105 Like all other franchises or licenses issued by the
government, the TOC is issued subject to terms, conditions, and limitations under existing
laws and agreements. This rule especially holds true in this instance since the TRB has the
power to issue "the necessary 'Toll Operation Certificate' subject to such conditions as shall
be imposed by the Board including inter alia" those specified under Section 3(e) of P.D. 1112.
Thus, impliedly written into every TOC are the conditions prescribed therein.

In any case, part of the TOC issued to SOMCO reads:

Pursuant to Section 3(e) of Presidential Decree No. 1112 or the Toll Operation Decree,
Skyway O & M Corporation is hereby given authority to operate and maintain Stage 1 of the
South Metro Manila Skyway effective as of 10:00 p.m. of 31 December 2007.

This authorization is issued upon the clear understanding that the operation and maintenance
of Stage 1 of the South Metro Manila Skyway as a toll facility and the collection of toll fees
shall be closely supervised and regulated by the Grantor, by and through the Board of
Directors, in accordance with the terms and conditions set forth in the STOA, as amended,
the rules and regulations duly promulgated by the Grantor for toll road operations and
maintenance, as well as the lawful orders, instructions and conditions which the Grantor,
through the TRB, may impose from time to time in view of the public nature of the facility.

As regards the allegation that none of the requirements for public bidding was observed
before the TOC was issued to SOMCO, this matter was also squarely answered by the Court
in Francisco, Jr. v. TRB,106 to wit:

Where, in the instant case, a franchisee undertakes the tollway projects of construction,
rehabilitation and expansion of the tollways under its franchise, there is no need for a public
bidding. In pursuing the projects with the vast resource requirements, the franchisee can
partner with other investors, which it may choose in the exercise of its management
prerogatives. In this case, no public bidding is required upon the franchisee in choosing its
partners as such process was done in the exercise of management prerogatives and in
pursuit of its right of delectus personae. Thus, the subject tollway projects were undertaken by
companies, which are the product of the joint ventures between PNCC and its chosen
partners.107

Under the STOA in this case, PNCC partnered with CMMTC in Stages 1 and 2 of the South
Metro Manila Skyway. The STOA gave birth to PSC, which was put in charge of the operation
and maintenance of the project roads. The ASTOA had to be executed for Stage 2 to
accommodate changes and modifications in the original design. The ASTOA then brought
forth the incorporation of SOMCO to replace PSC in the operations and maintenance of Stage
1 of the South Metro Manila Skyway. Clearly, no public bidding was necessary because
PNCC, the franchisee, merely exercised its management prerogative when it decided to
undertake the construction, operation, and maintenance of the project roads through
companies which are products of joint ventures with chosen partners.

Petitioners also insist that SOMCO is not qualified to operate a toll facility, because it does not
meet the nationality requirement for a corporation when scrutinized under the "grandfather
rule." Other than advancing this argument, however, petitioners have not shown how SOMCO
fails to meet the nationality requirement for a public utility operator. Petitioners only aver in
their petition that 40% of SOMCO is owned by CMMTC, a foreign company, while the rest is
owned by the following: a) Toll Road Operation and Maintenance Venture Corporation
(TROMVC), almost 40% of which is owned by a Singaporean company; b) Asset values
Holding Company, Inc. (AHCI), of which almost 40% is Dutch-owned; and c) Metro Strategic
Infrastructure Holdings, Inc. (MSIHI), 40% of which is owned by Metro Pacific Corporation,
whose ownership or nationality was not specified.108

Section 11, Article XII of the Constitution provides that "[n]o franchise, certificate, or any other
form of authorization for the operation of a public utility shall be granted except to citizens of
the Philippines or to corporations or associations organized under the laws of the Philippines
at least sixty per centum of whose capital is owned by such citizens x x x." Clearly, under the
Constitution, a corporation at least 60% of whose capital is owned by Filipinos is of Philippine
nationality. Considering this constitutional provision, petitioners' silence on the ownership of
the remaining 60% of the corporations cited is very telling.

In order to rebut petitioners' allegations, respondents readily present matrices showing the
itemization of percentage ownerships of the subscribed capital stock of SOMCO, as well as
that of TROMVC, AHCI, and MSIHI. Respondents attempt to show that all these corporations
are of Philippine nationality, with 60% of their capital stock owned by Filipino citizens. We
need not reproduce the itemization here. Suffice it to say that in their Consolidated
Reply,109 petitioners did not refute the unanimous claim of respondents. It is axiomatic that one
who alleges a fact has the burden of proving it. On this matter, we find that petitioners have
failed to prove their allegation that SOMCO is not qualified to operate a toll facility for failure to
meet the nationality requirement under the Constitution.

Finally, no public notices and hearings were necessary prior to the issuance of the TOC to
SOMCO. For the same reason that a public bidding is not necessary, PNCC cannot be
required to call for public hearings concerning matters within its prerogative. At any rate, we
have studied P.D. 1112 and the Implementing Rules and Regulations Authorizing the
Establishment of Toll Facilities and found no provision requiring the issuance of public notices
and the conduct of public hearings prior to the issuance of a TOC.

Approval of the AS TOA by the DOTC Secretary was approval by the President.

The doctrine of qualified political agency declares that, save in matters on which the
Constitution or the circumstances require the President to act personally, executive and
administrative functions are exercised through executive departments headed by cabinet
secretaries, whose acts are presumptively the acts of the President unless disapproved by
the latter.110 As explained in Villena v. Executive Secretary,111 this doctrine is rooted in the
Constitution:

x x x With reference to the Executive Department of the government, there is one purpose
which is crystal-clear and is readily visible without the projection of judicial searchlight, and
that is, the establishment of a single, not plural, Executive. The first section of Article VII of the
Constitution, dealing with the Executive Department, begins with the enunciation of the
principle that "The executive power shall be vested in a President of the Philippines." This
means that the President of the Philippines is the Executive of the Government of the
Philippines, and no other. The heads of the executive departments occupy political positions
and hold office in an advisory capacity, and, in the language of Thomas Jefferson, "should be
of the President's bosom confidence," and, in the language of Attorney-General Cushing, "are
subject to the direction of the President." Without minimizing the importance of the heads of
the various departments, their personality is in reality but the projection of that of the
President. Stated otherwise, and as forcibly characterized by Chief Justice Taft of the
Supreme Court of the United States, "each head of a department is, and must be, the
President's alter ego in the matters of that department where the President is required by law
to exercise authority." Secretaries of departments, of course, exercise certain powers under
the law but the law cannot impair or in any way affect the constitutional power of control and
direction of the President. As a matter of executive policy, they may be granted departmental
autonomy as to certain matters but this is by mere concession of the executive, in the
absence of valid legislation in the particular field. If the President, then, is the authority in the
Executive Department, he assumes the corresponding responsibility. The head of a
department is a man of his confidence; he controls and directs his acts; he appoints him and
can remove him at pleasure; he is the executive, not any of his secretaries.112 x x x (Citations
omitted)

Applying the doctrine of qualified political agency, we have ruled that the Secretary of
Environment and Natural Resources can validly order the transfer of a regional office by virtue
of the power of the President to reorganize the national government.113 In Constantino v.
Cuisia,114 the Court upheld the authority of the Secretary of Finance to execute debt-relief
contracts. The authority emanates from the power of the President to contract foreign loans
under Section 20, Article VII of the Constitution. In Angeles v. Gaite,115 the Court ruled that
there can be no issue with regard to the President's act of limiting his power to review
decisions and orders of the Secretary of Justice, especially since the decision or order was
issued by the secretary, the President's "own alter ego."116

There can be no question that the act of the secretary is the act of the President, unless
repudiated by the latter. In this case, approval of the ASTOA by the DOTC Secretary had the
same effect as approval by the President. The same would be true even without the issuance
of E.O. 497, in which the President, on 24 January 2006, specifically delegated to the DOTC
Secretary the authority to approve contracts entered into by the TRB.

Petitioners are unimpressed. They cite Section 8 of P.D. 1113 and Section 13 of P.D. 1894 as
follows:

SECTION 8. The GRANTEE shall not lease, transfer, grant the usufruct of, sell or assign this
franchise nor the rights or privileges acquired hereby, to any person, firm, company,
corporation or other commercial or legal entity, nor merge with any other company or
corporation without the prior approval of the President of the Philippines. In the event that this
franchise is sold, transferred or assigned, the transferee shall be subject to all the conditions,
terms, restrictions and limitations of this Decree as fully and completely and to the same
extents as if the franchise has been granted to the same person, firm, company, corporation
or other commercial or legal entity. (Emphasis supplied)

SECTION 13. The GRANTEE shall not lease, transfer, grant the usufruct of, sell or assign this
franchise nor the rights or privileges required hereby, to any person, firm, company,
corporation or other legal entity, nor merge with any other company or corporation without the
prior approval of the President of the Philippines. In the event that this franchise is sold,
transferred or assigned, the transferee shall be subject to all the conditions, terms, restrictions
and limitations of this Decree as fully and completely and to the same extent as if the
franchise has been granted to the said person, firm, company, corporation or other legal entity.
(Emphasis supplied) Petitioners insist that based on the above provisions, it is the President
who should give personal approval considering that the power to grant franchises was
exclusively vested in Congress. Hence, to allow the DOTC Secretary to exercise the power of
approval would supposedly dilute that legislative prerogative.
The argument of petitioners is founded on the assumption that PNCC in some way leased,
transferred, granted the usufruct of, sold, or assigned to SOMCO its franchise or the rights or
privileges PNCC had acquired by it. Here lies the error in petitioners' stand. First, as
discussed above, the power to grant franchises or issue authorizations for the operation of a
public utility is not exclusively exercised by Congress. Second, except where the situation
falls within that special class that demands the exclusive and personal exercise by the
President of constitutionally vested power,117 the President acts through alter egos whose acts
are as if the Chief Executive's own.

Third, no lease, transfer, grant of usufruct, sale, or assignment of franchise by PNCC or its
merger with another company ever took place.

The creation of the TRB and the grant of franchise to PNCC were made in the light of the
recognition on the part of the government that the private sector had to be involved as an
alternative source of financing for the pursuance of national infrastructure projects. As the
franchise holder for the construction, maintenance and operation of infrastructure toll facilities,
PNCC was equipped with the right and privilege, but not necessarily the means, to undertake
the project. This is where joint ventures with private investors become necessary.

A joint venture is an association of companies jointly undertaking a commercial endeavor,

with all of them contributing assets and sharing risks, profits, and losses.118 It is hardly
distinguishable from a partnership considering that their elements are similar and, thus,
generally governed by the law on partnership.119

In joint ventures with investor companies, PNCC contributes the franchise it possesses, while
the partner contributes the financing - both necessary for the construction, maintenance, and
operation of the toll facilities. PNCC did not thereby lease, transfer, grant the usufruct of, sell,
or assign its franchise or other rights or privileges. This remains true even though the
partnership acquires a distinct and separate personality from that of the joint venturers or
leads to the formation of a new company that is the product of such joint venture, such as
PSC and SOMCO in this case.

Hence, when we say that the approval by the DOTC Secretary in this case was approval by
the President, it was not in connection with the franchise of PNCC, as required under Section
8 of P.D. 1113 and Section 13 of P.D. 1894. Rather, the approval was in connection with the
powers of the TRB to enter into contracts on behalf of the government as provided under
Section 3(a) of P.D. 1112, which states:

SECTION 3. Powers and Duties of the Board. - The Board shall have in addition to its general
powers of administration the following powers and duties:

(a) Subject to the approval of the President of the Philippines, to enter into contracts in behalf
of the Republic of the Philippines with persons, natural or juridical, for the construction,
operation and maintenance of toll facilities such as but not limited to national highways, roads,
bridges, and public thoroughfares. Said contract shall be open to citizens of the Philippines
and/or to corporations or associations qualified under the Constitution and authorized by law
to engage in toll operations; (Emphasis supplied)

VI

Petitioners have not shown that the transfer of toll operations to SOM CO was grossly
disadvantageous to the government.
In support of their contention that the transfer of toll operations from PSC to SOMCO was
grossly disadvantageous to the government, petitioners belittle the initial capital investment,
private ownership, and track record of SOMCO.

When one uses the term "grossly disadvantageous to the government," the allegations in
support thereof must reflect the meaning accorded to the phrase. "Gross" means glaring,
reprehensible, culpable, flagrant, and shocking.120 It requires that the mere allegation shows
that the disadvantage on the part of the government is unmistakable, obvious, and certain.

In this case, we find that the allegations of petitioners are nothing more than speculations,
apprehensions, and suppositions. They speculate that with its "measly" capital investment,
1 wphi1

SOMCO would not be able to cover the overhead expenses for personal services alone. They
fear that the revenue from toll operations would go to "private pockets" in exchange for a
small settlement amount to be given to PSC. Given that SOMCO has no proven track record,
petitioners deduce that its assumption of the toll operations would lead to poor delivery of toll
services to the public.

The aim in the establishment of toll facilities is to draw from private resources the financing of
government infrastructure projects. Naturally, these private investors would want to receive
reasonable return on their investments. Thus, the collection of toll fees for the use of public
improvements has been authorized, subject to supervision and regulation by the national
government.121 As regards the P320 million settlement given to PSC, the amount was to be
used principally for the payment of its liabilities of PSC arising from the retrenchment of its
employees. We note that under the MOA, the residual assets of PSC shall still be offered for
sale to CMMTC, subject to valuation.122 Thus, it would be inaccurate to say that PSC would
receive only P320 million for the entire arrangement.

It is quite understandable that SOMCO does not yet have a proven track record in toll
operations, considering that it was only the ASTOA and the MOA that gave birth to it. We are
not prepared to rule that this lack of track record would result in poor delivery of toll services,
especially because most of the former employees of PSC have been rehired by SOMCO, an
allegation of respondents that was never refuted by petitioners. Neither are we prepared to
take the amount of SOMCO's initial capital investment against it, as it is considerably higher
than P500,000, the authorized capital stock of PSC as of 2002.123

A FINAL NOTE

R.A. 8975 prohibits lower courts from issuing any temporary restraining order, preliminary
injunction, or preliminary mandatory injunction against the government - or any of its
subdivisions, officials or any person or entity, whether public or private, acting under the
government's direction - to restrain, prohibit or compel acts related to the implementation and
completion of government infrastructure projects.

The rationale for the law is easily discernible. Injunctions and restraining orders tend to derail
the expeditious and efficient implementation and completion of government infrastructure
projects; increase construction, maintenance and repair costs; and delay the enjoyment of the
social and economic benefits therefrom. Thus, unless the matter is of extreme urgency
involving a constitutional issue, judges of lower courts who shall issue injunctive writs or
restraining orders in violation of the law shall be administratively liable.

The law is clear that what is prohibited is merely the issuance of provisional orders enjoining
the implementation of a national government project. R.A. 8975 does not bar lower courts
from assuming jurisdiction over complaints that seek the nullification or implementation of a
national government infrastructure project as ultimate relief.124

There is no question that the ultimate prayer in the instant case is the nullification of a national
government project considering that the ASTOA involved the design and construction of
Stage 2 of the South Metro Manila Skyway, as well as the operation and maintenance of
Stage 1 thereof. The prayer is grounded on the contract's alleged unconstitutionality, violation
of the law, and gross disadvantage to the government. Such principal action and relief were
within the jurisdiction of the RTC, which acted correctly when it ordered respondents to file
their respective answers to the complaint, even while it denied the prayer for the issuance of a
writ of preliminary injunction and/or temporary restraining order in observance of R.A. 8975.

It was therefore error on the part of petitioners to come directly before this Court for the sole
reason that the lower courts will not be able to grant the prayer for the issuance of a writ of
preliminary injunction and/or temporary restraining order to enjoin the assumption of toll
operations by SOMCO. The error even takes on a whole new meaning, because SOMCO
assumed responsibility for the operations and maintenance of the South Metro Manila
Skyway at 10:00 p.m. on 31 December 2007. On the other hand, the complaint before the
RTC seeking to enjoin the assumption by SOMCO was filed only on 3 January 2008, while the
instant petition was filed on 4 February 2008.

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

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

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

SO ORDERED.

MARIA LOURDES P.A. SERENO

Chief Justice, Chairperson

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LUCAS P. BERSAMIN JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

1 The Toll Operation Decree.

2
Granting the Construction and Development Corporation of the Philippines (CDCP) a
Franchise to Operate, Construct and Maintain Toll Facilities in the North and South Luzon Toll
Expressways and for other Purposes.

3
Rollo, pp. 312-326.

4 Amending the Franchise of the Philippine National Construction Corporation to Construct,

Maintain and Operate Toll Facilities in the North Luzon and South Luzon Expressways to
Include the Metro Manila Expressway to Serve as an Additional Artery in the Transportation of
Trade and Commerce in the Metro Manila Area.

5
Id. at 328-330.

6
Id. at 331-340.

7 Id. at 342-354.

8 Id. at 227.

9
Id.

10
Id. at 355-377.

11 Id. at 378-446.

12 Id. at 51.

13
Id. at 51-95.

DELEGATING TO THE SECRETARY OF TRANSPORTATION AND COMMUNICATIONS

14

THE APPROVAL OF CONTRACTS ENTERED INTO BY THE TOLL REGULATORY BOARD

WHEREAS, the Toll Operation Decree of 31st March 1977 grants to the Toll Regulatory
Board the power, subject to the approval of the President of the Philippines, to enter into
contracts in behalf of the Republic of the Philippines with persons, natural or juridical, for the
construction, operation and maintenance of toll facilities such as but not limited to national
highways, roads, bridges, and public thoroughfares;
NOW THEREFORE I, GLORIA M. ARROYO, President of the Philippines do hereby delegate
to the Secretary of Transportation and Communications the authority to approve contracts
entered into by the Toll Regulatory Board.

DONE in the City of Manila, this 24th day of January, in the year of Our Lord, Two Thousand
and Six.

15 Rollo, p. 96.

16
Id. at 97-107.

17 Id. at 49-50.

18 Id. at 528.

19
Former Secretary Arturo D. Brion, now a Member of this Court.

20
Id. at 528-529.

21 Id. at 111.

22 Id.

23
Id. at 715-733.

24
Id. at 110-115.

25 An Act to Ensure the Expeditious Implementation and Completion of Government

Infrastructure Projects by Prohibiting Lower Courts from Issuing Temporary Restraining
Orders, Preliminary Injunctions or Preliminary Mandatory Injunctions, Providing Penalties for
Violations thereof, and for other Purposes.

26
Rollo, p. 115.

27
Id.

28 Id. at 116-118.

29 ld.at119.

30
Id. at 3-48.

31
Id. at 126-127.

32
Id. at 945-951.

33 Id. at 952-958.

34 Id. at 959-971.
35 Id. at 1205-1206.

36 Id. at 222-310.

37 Id. at 469-504.

38
Id. at 532-568.

39
Id. at 569-670.

40 Id. at 1111-1163.

SECTION 3. Powers and Duties of the [Toll Regulatory] Board. - The Board shall have in
41

addition to its general powers of administration the following powers and duties:

(e) To grant authority to operate a toll facility and to issue therefore the necessary "Toll
Operation Certificate" subject to such conditions as shall be imposed by the Board including
inter alia the following:

1) That the Operator shall desist from collecting toll upon the expiration of the Toll Operation
Certificate.

2) That the entire facility operated as a toll system including all operation and maintenance
equipment directly related thereto shall be turned over to the government immediately upon
the expiration of the Toll Operation Certificate.

3) That the toll operator shall not lease, transfer, grant the usufruct of, sell or assign the rights
or privileges acquired under the Toll Operation Certificate to any person, firm, company,
corporation or other commercial or legal entity, nor merge with any other company or
corporation organized for the same purpose, without the prior approval of the President of the
Philippines. In the event of any valid transfer of the Toll Operation Certificate, the Transferee
shall be subject to all the conditions, terms, restrictions and limitations of this Decree as fully
and completely and to the same extent as if the Toll Operation Certificate has been granted to
the same person, firm, company, corporation or other commercial or legal entity.

4) That in time of war, rebellion, public peril, emergency, calamity, disaster or disturbance of
peace and order, the President of the Philippines may cause the total or partial closing of the
toll facility or order to take over thereof by the Government without prejudice to the payment of
just compensation.

5) That no guarantee, Certificate of Indebtedness, collateral, securities, or bonds shall be

issued by any government agency or government-owned or controlled corporation on any
financing program of the toll operator in connection with his undertaking under the Toll
Operation Certificate.

6) The Toll Operation Certificate may be amended, modified or revoked whenever the public
interest so requires.

42 An Act Authorizing the Financing, Construction, Operation and Maintenance of

Infrastructure Projects by the Private Sector, and for other Purposes.
Section 2. Definition of Terms. - The following terms used in this Act shall have the meanings
stated below:

(m) Facility operator - A company registered with the Securities and Exchange Commission,
which may or may not be the project proponent, and which is responsible for all aspects of
operation and maintenance of the infrastructure or development facility, including but not
limited to the collection of tolls, fees, rentals or charges from facility users: Provided, That in
case the facility requires a public utility franchise, the facility operator shall be Filipino or at
least sixty per centum (60%) owned by Filipinos. (Emphasis supplied)

43An Act Amending Certain Sections of Republic Act No. 6957, Entitled "An Act Authorizing
the Financing, Construction, Operation and Maintenance of Infrastructure Projects by the
Private Sector, and for other Purposes."

44
Section 8. The GRANTEE [PNCC] shall not lease, transfer, grant the usufruct of, sell or
assign this franchise nor the rights or privileges acquired hereby, to any person, firm,
company, corporation or other commercial or legal entity, nor merge with any other company
or corporation without the prior approval of the President of the Philippines. In the event that
this franchise is sold, transferred or assigned, the transferee shall be subject to all the
conditions, terms, restrictions and limitations of this Decree as fully and completely and to the
same extents as if the franchise has been granted to the same person, firm, company,
corporation or other commercial or legal entity. (Emphasis supplied)

45
Section 13. The GRANTEE [PNCC] shall not lease, transfer, grant the usufruct of, sell or
assign this franchise nor the rights or privileges required hereby, to any person, firm, company,
corporation or other legal entity, nor merge with any other company or corporation without the
prior approval of the President of the Philippines.

In the event that this franchise is sold, transferred or assigned, the transferee shall be subject
to all the conditions, terms, restrictions and limitations of this Decree as fully and completely
and to the same extent as if the franchise has been granted to the said person, firm, company,
corporation or other legal entity. (Emphasis supplied)

46 Rollo, pp. 240-241, 1137.

47
Id. at 241, 492-493.

48 Id. at 245-246, 489-490, 543-545, 1137.

49
Id. at 246-247, 1137-1138.

50
Id. at 252, 609.

51 Id. at 249, 1138.

52 Id. at 488-489, 543, 605-608, 1139-1140.

53
Id. at 256-261.

54
Id. at477-480, 539-542, 592-599, 1127-1132.
55 Id. at 481-484, 599-60 I.

56 Id. at 262-274, 1143-1144.

57 Id. at 266-270, 499, 622-624, 1144.

58
Id. at 270.

59
Id. at 282-285.

60 Id. at 285-287.

61
Id. at 276-282, 627-628, 1147-1148.

62 Id. at 277, 629, 1148-1151.

63 Id. at 277-279, 628, 1146-1147.

64
Id. at288-289, 631, 1152-1153.

65
Id. at 290, 632-634, 1152.

66 Government Procurement Reform Act.

67 Rollo, p. 291, 634-635.

68
Id. at 293, 636-640, 1153-1154.

69
Id. at 641-642.

70 Id. at 643.

71 Id. at 299-300, 500, 645.

72
Id. at 300, 646-650, 1158-1159.

73 Id. at 500, 653, 1159.

74
Id. at 302, 1159.

75
Kilosbayan, Inc. v. Morato, 316 Phil. 652 (1995).

76 Id.

Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. COMELEC, 352

77

Phil. 153 (1998).

 Oroport Cargohandling Services, Inc. v. Phividec Industrial Authority, 582 Phil. 197 (2008);
78

Philippine Airlines, Inc. v. Civil Aeronautics Board, 337 Phil. 254 (1997); Albano v. Reyes, 256
Phil. 718 (1989).

Associated Communications & Wireless Services-United Broadcasting Networks v. National

79

Telecommunications Commission, 445 Phil. 623 (2003).

80 337 Phil. 254 (1997).

81
Id. at 265.

82 Francisco, Jr. v. House of Representatives, 460 Phil. 830 (2003).

83 Jaworski v. PAGCOR, 464 Phil. 375 (2004).

84
320 Phil. 171 (1995).

85
RULES OF COURT, Rule 3, Sec. 2.

86Pantranco Employees Association v. NLRC, 600 Phil. 645 (2009); VSC Commercial
Enterprises, Inc. v. CA, 442 Phil. 269 (2002).

87 Spouses Oco v. Limbaring, 516 Phil. 691 (2006).

88 Rollo, p. 9.

89
553 Phil. 331 (2007).

90
Id. at 339-340.

91 Rollo, p. 33.

Tanduay Distillery labor Union v. NlRC, 233 Phil. 488 (1987) citing Villar v. Inciong, 206 Phil.
92

366 (1983).

93Hydro Resources Contractors Corp. v. National Irrigation Administration, 484 Phil. 581
(2004); land Car, Inc. v. Bachelor Express, Inc., 462 Phil. 796 (2003).

94 Rudecon Management Corporation v. Singson, 494 Phil. 581 (2005).

95
Ao-as v. CA, 524 Phil. 646 (2006).

96
THE LABOR CODE OF THE PHILIPPINES, ARTICLE 257. Unfair labor Practices of
Employers. It shall be unlawful for an employer to commit any of the following unfair labor
practice:

a) To interfere with, restrain or coerce employees in the exercise of their right to

self-organization;
b) To require as a condition of employment that a person or an employee shall not join a labor
organization or shall withdraw from one to which he belongs;

c) To contract out services or functions being performed by union members when such will
interfere with, restrain or coerce employees in the exercise of their rights to self-organization;

d) To initiate, dominate, assist or otherwise interfere with the formation or administration of

any labor organization, including the giving of financial or other support to it or its organizers
or supporters;

e) To discriminate in regard to wages, hours of work, and other terms and conditions of
employment in order to encourage or discourage membership in any labor organization.
Nothing in this Code or in any other law shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition for employment, except those
employees who are already members of another union at the time of the signing of the
collective bargaining agreement. Employees of an appropriate collective bargaining unit who
are not members of the recognized collective bargaining agent may be assessed a
reasonable fee equivalent to the dues and other fees paid by members of the recognized
collective bargaining agent, if such non-union members accept the benefits under the
collective agreement:

Provided, that the individual authorization required under Article 242, paragraph (o) of this
Code shall not apply to the non-members of the recognized collective bargaining agent;

t) To dismiss, discharge, or otherwise prejudice or discriminate against an employee for

having given or being about to give testimony under this Code;

g) To violate the duty to bargain collectively as prescribed by this Code;

h) To pay negotiation or attorneys fees to the union or its officers or agents as part of the
settlement of any issue in collective bargaining or any other dispute; or

i) To violate a collective bargaining agreement.

The provisions of the preceding paragraph notwithstanding, only the officers and agents of
corporations, associations or partnerships who have actually participated in, authorized or
ratified unfair labor practices shall be held criminally liable.

97
Great Pacific Life Employees Union v. Great Pacific Life Assurance Corp., 362 Phil. 452
(1999).

98
O.B. Jovenir Construction and Development Corporation v. Macamir Realty and
Development Corporation, 520 Phil. 318 (2006).

99
Roxas v. CA, 415 Phil. 430 (2001).

100
Rollo, pp. 34-48.

O.B. Jovenir Construction and Development Corporation v. Macamir Realty and

101

Development Corporation, supra at 326.

102 G.R. Nos. 166910, 169917, 173630 and 183599, 19 October 2010, 633 SCRA 470.

103 Id. at 496-498.

104 See note 41.

105
Manila Jockey Club, Inc. v. CA, 360 Phil. 367 (1998).

106
Supra.

107 Id. at 555-556.

108
Rollo, p. 16.

109 Id. at 1172-1204.

110 Villena v. Secretary of the Interior, 67 Phil. 451 (1939).

111
Id.

112
Id. at 464-465.

113 DENR v. DENR Region 12 Employees, 456 Phil. 635 (2003).

114 509 Phil. 486 (2005).

115
G.R. No. 165276, 25 November 2009, 605 SCRA 408.

116
Id. at 417.

117 Angeles v. Gaile, supra.

118 JG Summit Holdings, Inc. v. CA, 398 Phil. 955 (2000).

119
Litonjua, Jr. v. Litonjua, Sr., 573 Phil. 707 (2005).

120 Sajul v. Sandiganbayan, 398 Phil. 1082 (2000).

121
P.D. 1112, third "Whereas" clause.

122
Rollo, p. 103.

123 Id. at 994-999, Amended Articles of Incorporation of PSC.

124 Republic v. Nolasco, 496 Phil. 853 (2005).

125
384 Phil. 95 (2000).

126
People v. Azarraga, G.R. Nos. 187117 and 187127, 12 October 2011, 659 SCRA 34.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 193796 July 2, 2014

LAND BANK OF THE PHILIPPINES, Petitioner,

vs.
ATLANTA INDUSTRIES, INC., Respondent.

DECISION

PERLAS-BERNABE, J.:

This is a direct recourse1 to the Court from the Decision2 dated September 3, 2010 of the
Regional Trial Court of Manila, Branch 21 (Manila RTC) in Civil Case No. 09-122643 which
declared null and void the results of the re-bidding for the supply of water pipes conducted by
the Bids and Awards Committee (BAC) of the City Government of Iligan due to the use of
bidding documents outside of the rules and procedures prescribed under Republic Act No.
(RA) 9184,3 otherwise known as the "Government Procurement Act."

The Facts

On October 3, 2006, Land Bank of the Philippines (Land Bank) and the International Bank for
Reconstruction and Development4 (IBRD) entered into Loan Agreement No. 4833-PH5 for the
implementation. of the IBRD's "Support for Strategic Local Development and Investment .
Project" (S2LDIP). The loan facility in the amount of JP11,710,000,000.00 was fully
guaranteed by the Government of the Philippines and conditioned upon the participation of at
least two (2) local government units by way of a Subsidiary Loan Agreement (SLA) with Land
Bank.6

On February 22, 2007, Land Bank entered into an SLA7 with the City Government of Iligan to
finance the development and expansion of the city's water supply system, which had two (2)
components, namely: (a) the procurement of civil works; and ( b) the procurement of goods
for the supply and delivery of various sizes of PE 100 HDPE pipes and fittings.8 The SLA
expressly provided that the goods, works, and services to be financed out of the proceeds of
the loan with Land Bank were to be "procured in accordance with the provisions of Section I of
the 'Guidelines: Procurement under IBRD Loans and IDA Credits' x x x, and with the
provisions of [the] Schedule 4."9 Accordingly, the City Government of Iligan, through its BAC,
conducted a public bidding for the supply and delivery of various sizes of PE 100 HDPE pipes
and fittings using the IBRD Procurement Guidelines.10

Respondent Atlanta Industries, Inc. (Atlanta) participated in the said bidding and came up with
the second to the lowest bid in the amount of P193,959,354.34.11

However, in a letter12 dated July 27, 2009, the BAC informed Atlanta that the bidding was
declared a failure upon the recommendation of Land "Bank due to the IBRD 's
non-concurrence with the Bid Evaluation Report. Moreover, in a letter13 dated August 28, 2009,
the BAC informed Atlanta of its disqualification from the bidding because it lacked several
documentary requirements.

In response, Atlanta, through a letter14 dated September 8, 2009, sought to correct the BAC's
erroneous assumption that it failed to submit the necessary documents and to have its
disqualification reconsidered. It expressed its objection against the BAC's declaration of a
failure of bidding, asserting that had it not been improperly disqualified there would have also
been no need to declare the bidding a failure because its tender would be the sole responsive
bid necessary to save the bid process.15

However, in a Resolution16 dated September 25, 2009, the BAC deemed it futile to reconsider
Atlanta's disqualification in view of the fact that the bidding had already been declared a
failure because of noted violations of the IBRD Procurement Guidelines and that, unless the
BAC conducts a new bidding on the project, it would not be able to obtain a "no objection"
from .the World Bank. Atlanta did not pursue the matter further with the BAC and opted,
instead, to participate in the re-bidding of the project, the notice of which was published anew
on October 30, 2009.17

This notwithstanding, Atlanta, in a letter18 dated November 16, 2009, called the BAC's
attention to its use of Bidding Documents19 which, as it purported, not only failed to conform
with the Third Edition of the Philippine Bidding Documents for the Procurement of Goods
(PBDs)20 prescribed by the Government Procurement Policy Board (GPPB) but also contained
numerous provisions that were not in accordance with RA 9184 and its Implementing Rules
and Regulations (IRR). During the pre-bid conference, the BAC declared that the project was
not covered by RA 9184 or by any of the GPPB 's issuances. It further announced that the bid
opening would be conducted on December 14, 2009.21

Apprehensive of the BAC's use of bidding documents that appeared to be in contravention of

RA 9184 and its IRR, Atlanta filed on December 10, 2009 a Petition for Prohibition and
Mandamus22 with an urgent prayer for the issuance of a temporary restraining order (TRO)
and/or writ of preliminary injunction to enjoin the re-bidding .of the project against the City
Government of Iligan, the BAC, and Land Bank before the Manila RTC, docketed as Civil
Case No. 09-122643 (Petition for Prohibition).

In their separate comments on the said petition, Land Bank and the BAC asserted that the
case was dismissible for improper. venue, mootness, non-exhaustion of administrative
remedies, failure to implead an indispensable party, and the inapplicability of RA 918.4.23

In the meantime, with Atlanta's Urgent Ex Parte Motion for the Issuance of a 72-Hour TRO
and Special Raffle24having been denied,25 the re-bidding of the project was conducted (as
scheduled on December 14, 2009), with four .C 4) bidders participating and submitting the
following bids:

1. Atlanta Industries, Inc. P141,289,680.50

2. Moldex Products, Inc. P172,727,052.49

3. Dong Won Plastics, Inc. P189,184,599.74

4. Thai-Asia/Junnie Industries P191,900.020.0026

Thereupon, the case proceeded with the parties' submission of their respective
memoranda27 and the denial of Atlanta's prayer for the issuance of an injunctive writ.28

The Manila RTC Ruling

In a Decision29 dated September 3, 2010, the Manila RTC declared the subject bidding null
and void on the ground that it was done contrary to the rules and procedure prescribed in RA
9184 and its IRR. Consequently, it enjoined the City Government of Iligan and. its BAC from
entering into and/or implementing the contract for the supply of water pipes with Moldex
Products, Inc.30

The Manila RTC also ruled that the City Government of Iligan cannot claim exemption from
the application of RA 9184 and its IRR by virtue of Loan Agreement No. 48~3-PH with the
IBRD because it was Land Bank, and not the City Government of Iligan, which was the party
to the same. Moreover, it .held that the IBRD could not have passed on its status as an
international institution exempt from RA 9184 simply because it loaned money to Land
Bank.31 It added that the SLA subsequently executed by Land Bank with the City Government
of Iligan cannot validly provide for the use of bidding procedures different from those provided
under RA 9184 because the said SLA is not in the nature of an international agreement
similar to the Loan Agreement with the IBRD.32

The Manila RTC finally concluded that in view of GPPB Resolution No. 05-2009 (September
30, 2009) which requires "all branches, agencies, departments, bureaus, offices and
instrumentalities of the Government, including x x x local government units x x x to use the
Philippine Bidding Documents Third Edition for all their procurement activities," the City
Government of Iligan and its BAC exceeded their jurisdiction in conducting the public bidding
using the questioned bidding documents.33

Dissatisfied, Land Bank elevated the matter directly to the Court, vigorously asserting, among
others, that: (a) venue was improperly laid; and (b) the public bidding for the supply of water
pipes to the City of Iligan's Water Supply System Development and Expansion Project is
exempt from the application of RA 9184 and its IRR by virtue of the SLA being .a related and
subordinate covenant to Loan Agreement No. 4833-PH.34

The Issues Before the Court

The main issues presented for the Court's resolution are: (a) whether or not the Manila RTC
has jurisdiction over the instant prohibition case and eventually issue the writ prayed for; and
(b) whether or not the SLA between the Land Bank and the City Government of Iligan is an
executive agreement similar to Loan Agreement No. 4833-PH such that the procurement of
water pipes by the BAC of the City Government of Iligan should be deemed exempt from the
application of RA 9184.

The Court's Ruling

The petition is meritorious.

The Court first resolves the procedural issues of this case, then proceeds to its substantive
aspects.

A. PROCEDURAL ISSUES:
The Manila RTC's Lack of Jurisdiction to
Issue the Writ of Prohibition Subject of
this Case; and Atlanta's Failure to
Exhaust Administrative Remedies.

Preliminarily, Land Bank asserts that the Petition for Prohibition was improperly filed before
the Manila RTC considering that the acts sought to be enjoined, i.e., the public bidding for the
supply of water pipes, are beyond the said court's territorial jurisdiction.35 Atlanta, for its part,
counter-argues that the acts of Land Bank are as much to be enjoined for causing the City
Government of Iligan and its BAC to continuously violate the provisions of RA 9184, its IRR,
and the PBDs in the conduct of the public bidding36 and that the filing of the prohibition case in
the City of Manila was in accordance with the rules on venue given that Land Bank's main
office is in the City of Manila.37

The Court finds for Land Bank.

A petition for prohibition is a special civil action that seeks for a judgment ordering the
respondent to desist from continuing with the commission of an act perceived to be illegal.
Section 2, Rule 65 of the Rules of Court (Rules) reads:

Sec. 2. Petition for Prohibition. - When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without
or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and justice may require.

x x x x (Emphasis supplied)

While the Court, Court of Appeals and Regional Trial Court have original concurrent
jurisdiction to issue writs of certiorari, prohibition and mandamus, if what is assailed relates to
"acts or omissions of a lower court or of a corporation, board, officer or person," the petition
must be filed "in the Regional Trial Court exercising jurisdiction over the territorial area as
defined by the Court." Section 4 of the same Rules provides that:

Sec. 4. When and Where to file the petition. -The petition shall be filed not later than sixty (60)
days from notice of the judgment, order or resolution. In case a motion for reconsideration or
new trial is timely filed, whether such motion is required or not, the petition shall be filed not
later than sixty (60) days counted from the notice of the denial of the motion.

If the petition relates to an act or an omission of a municipal trial court or of a corporation, a

board, an officer or a person, it shall be filed with the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme Court. H may also be filed with
the Court of Appeals or with the Sandiganbayan, whether or not the same is .in aid of the
court's appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial
agency, unless otherwise provided by law or these rules, the petition shall be filed with and be
cognizable only by the Court of Appeals.

x x x x (Emphasis supplied)
The foregoing rule corresponds to Section 21 ( 1) of Batas Pambansa Blg. 129,38 otherwise
known as "The Judiciary Reorganization Act of 1980" (BP 129), which gives Regional Trial
Courts original jurisdiction over cases of certiorari, prohibition, mandamus, quo warranto,
habeas corpus, and injunction but lays down the limitation that the writs issued therein are
enforceable only within their respective territorial jurisdictions. The pertinent provision reads:

Sec. 21. Original jurisdiction in other cases. - Regional Trial Courts shall exercise original
jurisdiction:

(1) In the issuance of writs of certiorari: prohibition, mandamus, quo warranto, habeas corpus
and injunction, which may be enforced in any part of their respective regions;

x x x x (Emphasis supplied)

The Court already ruled in numerous cases, beginning with the very early case of Costao v.
Lobingier,39 that the power to administer justice conferred upon judges of the Regional Trial
Courts, formerly Courts of First Instance (CFI), can only be exercised within the limits of their
respective districts, outside of which they have no jurisdiction whatsoever. Applying previous
legislation similar to the present Section 21 of BP 129 and its complementary provision, i.e.,
Section 4, Rule 65 of the Rules, the Court held in said case that the CFI of Leyte had no
power to issue writs of injunction and certiorari against the Justice of the Peace of Manila, as
the same was outside the territorial boundaries of the issuing court. Also, in Samar Mining Co.,
Inc. v. Arnado,40 a petition for certiorari and prohibition with preliminary injunction was filed in
the CFI of Manila to question the authority of the Regional Administrator and Labor Attorney
of the Department of Labor in Cebu City to hear a complaint for sickness compensation in
Catbalogan, Samar and to enjoin said respondents from conducting further proceedings
thereat. The Court affirmed the dismissal . of the case on the ground of improper venue,
holding that the CFI of Manila had no authority to issue writs of injunction, certiorari, and
prohibition affecting persons outside its territorial boundaries. Further, in both Cudiamat v.
Torres (Cudiamat)41 and National Waterworks and Sewerage Authority v. Reyes42 (NAWASA),
the losing bidders succeeded in securing an injunctive writ from the CFI of Rizal in order to .
restrain, in Cudiamat, the implementation of an award on a public bidding for the supply of a
police call and signal box system for the City of Manila, and, in NAWASA, the conduct of the
public bidding for the supply of steel pipes for its Manila and Suburbs Waterworks Project.
The Court held in both cases that the injunction issued by the CFI of Rizal purporting to
restrain acts outside the province of Rizal was null and void for want of jurisdiction.

Undoubtedly, applying the aforementioned precepts and pronouncements to the instant case,
the writ of prohibition issued by the Manila RTC in order to restrain acts beyond the bounds of
the territorial limits of its jurisdiction (i.e., in Iligan City) is null and void.

Also on a matter of procedure, the Court further discerns that the Manila RTC should have
dismissed the case outright for failure of Atlanta to exhaust administrative remedies. Under
RA 9184, the decisions of the BAC in all stages of procurement may be protested. to the head
of the procuring entity through a verified position paper and upon payment of a protest
fee.43 The necessity for the complaining bid participant to complete the protest process before
resorting to court action cannot be overemphasized. It is a condition precedent to the court's
taking cognizance of an action that assails a bid process.44 When precipitately taken prior to
the completion of the protest process, such case shall be dismissed for lack of
jurisdiction.45 While Atlanta may have written the BAC a letter objecting to some of the terms
and conditions contained in the bidding documents to be used for the re-bidding, its action fell
short of the required protest. It failed to follow through with' its protest and opted instead to
participate in the re-bidding with full knowledge that the IBRD Procurement Guidelines were
to be followed throughout the conduct of the bid. Having failed to observe the protest
procedure required by law, Atlanta's case should not have prospered with the RTC altogether.

With the procedural matters having been resolved, the Court now proceeds to discuss the
substantive aspect of this case concerning the SLA and Land Bank's claimed exemption from
the provisions of RA 9184.

B. SUBSTANTIVE ISSUES:

The Applicability of the Bidding

Procedure under RA 9184; and the
Nature of Loan No. 4833-PH and its
Relation to the SLA.

While mandating adherence to the general policy of the government that contracts for the
procurement of civil works or supply of goods and equipment shall be undertaken only after
competitive public bidding, RA 9184 recognizes the country's commitment to abide by its
obligations under any treaty or international or executive agreement. This is pertinently
provided in Section 4 of RA 9184 which reads as follows:

Sec. 4. Scope and Application. - This Act shall apply to the Procurement of Infrastructure
Projects, Goods and Consulting Services, regardless of source of funds, whether local or
foreign, by all branches and instrumentalities of the government, its department, offices and
agencies, including government owned and/or -controlled corporations and local government
units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or
1 wphi1

executive agreement affecting the subject matter of this Act to which the Philippine
government is a signatory shall be observed. (Emphasis supplied)

The IRR of RA 9184 further supplements the law's treatment of treaties and international or
executive agreements as follows:

Section 4. Scope and Application of the IRR

4.1 This IRR shall apply to all procurement of any branch, agency, department, bureau, office
or instrumentality of the GOP, including government-owned and/or -controlled corporations
(GOCCs), government financial institutions (GFis), state universities and colleges (SUCs) and
local government units (LGUs).

4.2 Any Treaty or International or Executive Agreement to which the GOP is a signatory
affecting the subject matter of the Act and this IRR shall be observed. In case of conflict
between the terms of the Treaty or International or Executive Agreement and this IRR, the
former shall prevail.

4.3 Unless the Treaty or International or Executive Agreement expressly provides use of
foreign government/foreign or international financing institution procurement procedures and
guidelines, this IRR shall apply to Foreign-funded Procurement for goods, infrastructure
projects, and consulting services by the GOP.

Consistent with the policies and principles set forth in Sections 2 and 3 of this IRR, the GOP
negotiating panels shall adopt, as its default position, use of this IRR, or at the very least,
selection through competitive bidding, in all Foreign-funded Procurement. If the Treaty or
International or Executive Agreement states otherwise, then the negotiating panels shall
explain in writing the reasons therefor. (Emphasis supplied)

While Atlanta admits that there are exceptions to the application of RA 9184, it posits that the
City Government of Iligan could not claim to be exempt under any of the enumerated
instances because it is not a party to the IBRD Loan Agreement.46 It further asserts that a
provision in the SLA between Larid Bank and the City Government of Iligan providing for
procurement procedures different from that required under RA 9184 would not be valid since
it is not a treaty or an executive agreement in the way that Loan Agreement, No. 4833-PH is.

The argument lacks merit.

As the parties have correctly discerned, Loan Agreement No. 4833-PH is in the nature of an
executive agreement. In Bayan Muna v. Romulo47 (Bayan Muna) the Court defined an
international agreement as one concluded between states in written form and governed by
international law, "whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation,"48 and further expounded that it may be in
the form of either (a) treaties that require legislative concurrence after executive ratification; or
( b) executive agreements that are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and deal with a narrower range of subject
matters than treaties.49Examining its features, Loan Agreement No. 4833-PH between the
IBRD and the Land Bank is an integral component of the Guarantee Agreement executed by
the Government of the Philippines as a subject of international law possessed of a
treaty-making capacity, and the IBRD, which, as an international lending institution organized
by world governments to provide loans conditioned upon the guarantee of repayment by the
borrowing sovereign state, is likewise regarded a subject of international law and possessed
of the capacity to enter into executive agreements with sovereign states. Being similar to a
treaty but without requiring legislative concurrence, Loan Agreement No. 4833-PH - following
the definition given in the Bayan Muna case - is an executive agreement and is, thus,
governed by international law. Owing to this classification, the Government of the Philippines
is therefore obligated to observe its terms and conditions under the rule of pacta sunt
servanda, a fundamental maxim of international law that requires the parties to keep their
agreement in good faith.50 It bears pointing out that the pacta sunt servanda rule has become
part of the law of the land through the incorporation clause found under Section 2, Article II of
the 1987 Philippine Constitution, which states that the Philippines "adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy
of peace, equality, justice, freedom, cooperation, and amity with all nations." Keeping in mind
the foregoing attributions, the .Court now examines the SLA and its relation with Loan
Agreement No. 4833-PH.

As may be palpably observed, the terms and conditions of Loan Agreement No. 4833-PH,
being a project-based and government-guaranteed loan facility, were incorporated and made
part of the SLA that was subsequently entered into by Land Bank with the City Government of
Iligan.51 Consequently, this means that the SLA cannot be treated as an independent and
unrelated contract but as a conjunct of, or having a joint and simultaneous occurrence with,
Loan Agreement No. 4833-PH. Its nature and consideration, being a mere accessory contract
of Loan Agreement No. 4833-PH, are thus the same as that of its principal contract from
which it receives life and without which it cannot exist as an independent contract.52 Indeed,
the accessory follows the principal;53 and, concomitantly, accessory contracts should not be
read independently of the main contract.54 Hence, as Land Bank correctly puts it, the SLA has
attained indivisibility with the Loan Agreement and the Guarantee Agreement through the
incorporation of each other's terms and conditions such that the character of one has likewise
become the character of the other.

Considering that Loan Agreement No. 4833-PH expressly provides that the procurement of
the goods to be financed from the loan proceeds shall be in accordance with the IBRD
Guidelines and the provisions of Schedule 4, and that the accessory SLA contract merely
follows its principal 's terms and conditions, the procedure for competitive public bidding
prescribed under RA 9184 therefore finds no application to the procurement of goods for the
Iligan City Water Supply System Development and Expansion Project. The validity of similar
stipulations in foreign loan agreements requiring the observance of IBRD Procurement
Guidelines in the procurement process has, in fact, been previously upheld by the Court in the
case of Department of Budget and Management Procurement Service (DBMPS) v. Kolonwel
Trading,55 viz.:

The question as to whether or not foreign loan agreements with international financial
institutions, such as Loan No. 7118-PH, partake of an executive or international agreement
within the purview of Section 4 of R.A. No. 9184, has been answered by the Court in the
affirmative in [Abaya v. Sec. Ebdane, Jr., 544 Phil. 645 (2007)]. Significantly, Abaya declared
that the RP-JBIC loan agreement was to be of governing application over the CP I project and
that the JBIC Procurement Guidelines, as stipulated in the loan agreement, shall primarily
govern the procurement of goods necessary to implement the main project.

Under the fundamental international law principle of pacta sunt servanda, which is in fact
embodied in the afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to
perform in good faith its duties and obligation under Loan No. 7118-PH. Applying this
postulate in the concrete to this case, the IABAC was legally obliged to comply with, or accord,
primacy to, the WB Guidelines on the conduct and implementation of the bidding/procurement
process in question.56

With the nature and treatment of Loan Agreement No. 4833-PH as well as its accessory SLA
herein explained, the Court thus holds that the RTC committed reversible error in ruling that
the provisions of RA 9184 were to be applied in this case. Quite the contrary, it is the IBRD
Guidelines and the provisions of Schedule 4 which should govern. As such, the procurement
of water pipes by the BAC of the City Government of Iligan -as Land Bank meritoriously
submits in its petition - is beyond the purview of RA 9184, yielding as it should to the express
stipulations found in the executive agreement, to which the latter's accessory merely follows.

In view of all these errors, both on procedural and substantive counts, the Court is hereby
bound to reverse the trial court's decision and accordingly grant the present petition.

WHEREFORE, the petition is GRANTED. The Decision dated September 3, 2010 of the
Regional Trial Court of Manila, Branch 21 (Manila RTC) in Civil Case No. 09-122643 is
hereby REVERSED and SET ASIDE. The Petition for Prohibition and Mandamus filed before
the Manila RTC is DISMISSED.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:
 ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1
Via a petition for review on certiorari under Rule 45 of the Rules of Court. (Rollo, pp. 10-40.)

2 Id. at 45-57. Penned by Judge Amor A. Reyes.

3
Entitled "AN ACT PROVIDING FOR THE MODERNIZATION, STANDARDIZATION AND
REGULATION OF THE PROCUREMENT ACTIVITIES OF THE GOVERNMENT AND FOR
OTHER PURPOSES."

4
Also referred to as "World Bank."

5 Rollo, pp. 58-95.

6 Id. at 13-14.

7
Id. at 96-115.

8 Id. at 75. See also id. at 14-15.

9 See Section I, Schedule 4 of the SLA; id. at 78. (Emphasis and underscoring supplied)

10 Id. at 15.

11 Id. at 46.

12
Id. at 141 and 359.

13
Id. at 362-363.

14 Id. at 146-150.

15
Id. at 148-149.

16 See Resolution No. 160, Series of2009; id. at 152-153.

17 Id. at 122.

18
Id. at I 89-193 and 533-537.

19
Id. at 406-437.

20 Id. at 438-531.

21 Id. at 126 and 333-334.

22
Id. at 116-138.

23
Id.at17-18 and 49-50.

24 Filed on December 10, 2009. (Id. at 194-198.)

25See Order dated December 10, 2009 issued by 1st Vice-Executive Judge Eduardo B.
Peralta, Jr.; id. at 199.

26 Id. at 267-268.

27
See Order dated May 24, 20 IO; id. at 213. See also Memorandum for 1) Land Bank dated
June 21, 2010 (id. at 235-254); 2) City Government of lligan and its BAC dated June 21, 2010
(id. at 290-308); and 3) Atlanta dated June 22, 2010 (id. at 255-289).

28 See Order dated June 22, 2010; id. at 233-234.

29
Id. at 45-57.

30
Id. at 57.

31
Id. at 56.
32 Id. at 54-55.

33 Id. at 56-57.

34 Id. at 24-34.

35
Id. at 32-34.

36
See comment dated February 23, 2011; id. at 342-351.

37 Id. at 351-353.

38
Entitled "AN ACT REORGANIZING THE JUDICIARY, APPROPRIATING FUNDS
THEREFOR, AND FOR OTHER PURPOSES."

39 7 Phil 91, 93 (1906).

40
112 Phil. 678 (1961).

41 130 Phil. 720 (1968).

42
130 Phil. 939 (1968).

43
RA 9184, Sec. 55.

44 RA 9184, Sec. 58.

45Department of Budget and Management Procurement Service (DBM-PS) v. Kolonwel

Trading, 551 Phil. 1030, 1043 (2007).

46 Rollo, p. 54.

47
G.R. No. 159618, February 1, 2011, 641SCRA244,258-259.

Id., citing Article 2(1) of the Vienna Convention on the Law of Treaties. (See China National
48

Machinery & Equipment Corp. [Group} v. Santamaria, G.R. No .. 185572, February 7, 2012,
665 SCRA 189, 213-214.) .

49 Id., citing B.A. Boczek, International Law: A Dictionary 346 (2005); emphasis supplied.

50
Secretary of Justice v. Hon. Lantion, 379 Phil. 165, 212 (2000).

51 The Whereas portion of the SLA (id. at 96) reads:

"WHEREAS, the International Bank for Reconstruction and Development (otherwise known
as the 'World Bank') granted to the LENDER a loan in the principal amount of JAPANESE
YEN: ELEVEN BILLION SEVEN HUNDRED TEN MILLION (U.S. $100.0 million equivalent)
(the 'World Bank Loan'), for the implementation of the World Bank- Support for Strategic Local
Development and Investment (the 'Project'), x x x as evidenced by Loan Agreement No.
4833-PH executed between the World Bank and the LENDER on 3 October 2006 '(hereinafter
referred to as 'WB-Loan Agreement') which is incorporated hereto by reference and made an
integral part hereof;

WHEREAS, the BORROWER has applied with the LENDER to avail of a loan (the
'SUB-LOAN') under the Project to finance the Sub-Project, as hereinafter defined, and the
LENDER has agreed to grant the same under the terms and conditions specified hereunder;

x x x x"

52
"[A]n accessory obligation is dependent for its existence on the existence of a principal
obligation. A principal obligation may exist without an accessory obligation but an accessory
obligation cannot exist without a principal obligation." (Social Security System v. Moonwalk
Development & Housing Corporation, G.R. No. 73345. April 7, 1993, 221 SCRA 119, 124.)

Palm Tree Estates, Inc. v. Philippine National Bank, G.R. No. 159370, October 3, 2012, 682
53

SCRA 194, 212.

See Prudential Guarantee and Assurance, Inc. v. Anscor Land, Inc., G.R. No. 177240,
54

September 8, 2010, 630 SCRA 368, 376-377.

55
551 Phil. 1030 (2007).

56 Id. at 1049.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner,

vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as
Secretary of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA,
as Secretary of Commerce and Industry, and SALVADOR MARINO, Secretary of
Justice, respondents.

Ramon A. Gonzales in his own behalf as petitioner.

Office of the Solicitor General and Estanislao Fernandez for respondents.

CONCEPCION, J.:

This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from private sources, and created a
rice procurement committee composed of the other respondents herein1 for the
implementation of said proposed importation. Thereupon, or September 25, 1963, herein
petitioner, Ramon A. Gonzales a rice planter, and president of the Iloilo Palay and Corn
Planters Association, whose members are, likewise, engaged in the production of rice and
corn filed the petition herein, averring that, in making or attempting to make said
importation of foreign rice, the aforementioned respondents "are acting without jurisdiction or
in excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals or amends
Republic Act No. 220 explicitly prohibits the importation of rice and corn "the Rice and Corn
Administration or any other government agency;" that petitioner has no other plain, speedy
and adequate remedy in the ordinary course of law; and that a preliminary injunction is
necessary for the preservation of the rights of the parties during the pendency this case and to
prevent the judgment therein from coming ineffectual. Petitioner prayed, therefore, that said
petition be given due course; that a writ of preliminary injunction be forthwith issued
restraining respondent their agents or representatives from implementing the decision of the
Executive Secretary to import the aforementioned foreign rice; and that, after due hearing,
judgment be rendered making said injunction permanent.

Forthwith, respondents were required to file their answer to the petition which they did, and
petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties
appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the
respondents. Considering, later on, that the resolution said incident may require some
pronouncements that would be more appropriate in a decision on the merits of the case, the
same was set for hearing on the merits thereafter. The parties, however, waived the right to
argue orally, although counsel for respondents filed their memoranda.

I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him
sufficient interest to file the petition herein and secure the relief therein prayed for. We find no
merit in this pretense. Apart from prohibiting the importation of rice and corn "by the Rice and
Corn Administration or any other government agency". Republic Act No. 3452 declares, in
Section 1 thereof, that "the policy of the Government" is to "engage in the purchase of these
basic foods directly from those tenants, farmers, growers, producers and landowners in the
Philippines who wish to dispose of their products at a price that will afford them a fair and just
return for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a
planter with a rice land of substantial proportion,2 is entitled to a chance to sell to the
Government the rice it now seeks to buy abroad. Moreover, since the purchase of said
commodity will have to be effected with public funds mainly raised by taxation, and as a rice
producer and landowner petitioner must necessarily be a taxpayer, it follows that he has
sufficient personality and interest to seek judicial assistance with a view to restraining what he
believes to be an attempt to unlawfully disburse said funds.

II. Exhaustion of administrative remedies.

Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted
all administrative remedies available to him before coming to court". We have already held,
however, that the principle requiring the previous exhaustion of administrative remedies is not
applicable where the question in dispute is purely a legal one",3 or where the controverted act
is "patently illegal" or was performed without jurisdiction or in excess of jurisdiction,4 or where
the respondent is a department secretary, whose acts as an alter-ego of the President bear
the implied or assumed approval of the latter,5 unless actually disapproved by him,6 or where
there are circumstances indicating the urgency of judicial intervention.7 The case at bar fails
under each one of the foregoing exceptions to the general rule. Respondents' contention is,
therefore, untenable.

III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory that the
proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but
was authorized by the President as Commander-in-Chief "for military stock pile purposes" in
the exercise of his alleged authority under Section 2 of Commonwealth Act No. 1;8 that in
cases of necessity, the President "or his subordinates may take such preventive measure for
the restoration of good order and maintenance of peace"; and that, as Commander-in-Chief of
our armed forces, "the President ... is duty-bound to prepare for the challenge of threats of
war or emergency without waiting for any special authority".

Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended
by petitioner herein - on which our view need not be expressed we are unanimously of the
opinion - assuming that said Republic Act No. 2207 is still in force that the two Acts are
applicable to the proposed importation in question because the language of said laws is such
as to include within the purview thereof all importations of rice and corn into the Philippines".
Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association,
corporation orgovernment agency to import rice and corn into any point in the Philippines",
although, by way of exception, it adds, that "the President of the Philippines may authorize the
importation of these commodities through any government agency that he may designate", is
the conditions prescribed in Section 2 of said Act are present. Similarly, Republic Act No.
3452 explicitly enjoins "the Rice and Corn Administration or any government agency" from
importing rice and corn.
Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452,
prohibiting the importation of rice and corn by any "government agency", do not apply to
importations "made by the Government itself", because the latter is not a "government
agency". This theory is devoid of merit. The Department of National Defense and the Armed
Forces of the Philippines, as well as respondents herein, and each and every officer and
employee of our Government, our government agencies and/or agents. The applicability of
said laws even to importations by the Government as such, becomes more apparent when we
consider that:

1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of
the Philippines"and, hence, by or on behalf of the Government of the Philippines;

2. Immediately after enjoining the Rice and Corn administration and any other government
agency from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the
importation of rice and corn is left to private parties upon payment of the corresponding taxes",
thus indicating that only "private parties" may import rice under its provisions; and

3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than
five (5) years for those who shall violate any provision of Republic Act No. 3452 or any rule
and regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the
offender is a public official and/or employees", he shall be subject to the additional penalty
specified therein. A public official is an officer of the Government itself, as distinguished from
officers or employees of instrumentalities of the Government. Hence, the duly authorized acts
of the former are those of the Government, unlike those of a government instrumentality
which may have a personality of its own, distinct and separate from that of the Government,
as such. The provisions of Republic Act No. 2207 are, in this respect, even more explicit.
Section 3 thereof provides a similar additional penalty for any "officer or employee of the
Government" who "violates, abets or tolerates the violation of any provision" of said Act.
Hence, the intent to apply the same to transactions made by the very government is patent.

Indeed, the restrictions imposed in said Republic Acts are merely additional to those
prescribed in Commonwealth Act No. 138, entitled "An Act to give native products and
domestic entities the preference in the purchase of articles for the Government." Pursuant to
Section 1 thereof:

The Purchase and Equipment Division of the Government of the Philippines and other officers
and employees of the municipal and provincial governments and the Government of the
Philippines and of chartered cities, boards, commissions, bureaus, departments, offices,
agencies, branches, and bodies of any description, including government-owned companies,
authorized to requisition, purchase, or contract or make disbursements for articles, materials,
and supplies for public use, public buildings, or public works shall give preference to
materials ... produced ... in the Philippines or in the United States, and to domestic entities,
subject to the conditions hereinbelow specified. (Emphasis supplied.)

Under this provision, in all purchases by the Government, including those made by and/or for
the armed forces,preference shall be given to materials produced in the Philippines. The
importation involved in the case at bar violates this general policy of our Government, aside
from the provisions of Republic Acts Nos. 2207 and 3452.

The attempt to justify the proposed importation by invoking reasons of national security
predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension
created by the Malaysia problem" - and the alleged powers of the President as
Commander-in-Chief of all armed forces in the Philippines, under Section 2 of the National
Defense Act (Commonwealth Act No. 1), overlooks the fact that the protection of local
planters of rice and corn in a manner that would foster and accelerate self-sufficiency in the
local production of said commodities constitutes a factor that is vital to our ability to meet
possible national emergency. Even if the intent in importing goods in anticipation of such
emergency were to bolster up that ability, the latter would, instead, be impaired if the
importation were so made as to discourage our farmers from engaging in the production of
rice.

Besides, the stockpiling of rice and corn for purpose of national security and/or national
emergency is within the purview of Republic Act No. 3452. Section 3 thereof expressly
authorizes the Rice and Corn Administration "to accumulate stocks as a national reserve in
such quantities as it may deem proper and necessary to meet any contingencies". Moreover,
it ordains that "the buffer stocks held as a national reserve ... be deposited by the
administration throughout the country under the proper dispersal plans ... and may be
released only upon the occurrence of calamities or emergencies ...". (Emphasis applied.)

Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely
so much, are not self-executory. They merely outline the general objectives of said legislation.
The means for the attainment of those objectives are subject to congressional legislation.
Thus, the conditions under which the services of citizens, as indicated in said Section 2, may
be availed of, are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1.
Similarly, Section 5 thereof specifies the manner in which resources necessary for our
national defense may be secured by the Government of the Philippines, but only "during a
national mobilization",9which does not exist. Inferentially, therefore, in the absence of a
national mobilization, said resources shall be produced in such manner as Congress may
by other laws provide from time to time. Insofar as rice and corn are concerned, Republic Acts
Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws.

Respondents cite Corwin in support of their pretense, but in vain. An examination of the work
cited10 shows that Corwin referred to the powers of the President during "war time"11 or when
he has placed the country or a part thereof under "martial law".12 Since neither condition
obtains in the case at bar, said work merely proves that respondents' theory, if accepted,
would, in effect, place the Philippines under martial law, without a declaration of the Executive
to that effect. What is worse, it would keep us perpetually under martial law.

It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207
and 3452, it should, nevertheless, be permitted because "it redounds to the benefit of the
people". Salus populi est suprema lex, it is said.

If there were a local shortage of rice, the argument might have some value. But the
respondents, as officials of this Government, have expressly affirmed again and again that
there is no rice shortage. And the importation is avowedly for stockpile of the Army not the
civilian population.

But let us follow the respondents' trend of thought. It has a more serious implication that
appears on the surface. It implies that if an executive officer believes that compliance with a
certain statute will not benefit the people, he is at liberty to disregard it. That idea must be
rejected - we still live under a rule of law.

And then, "the people" are either producers or consumers. Now as respondents explicitly
admit Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit
of producers and consumers, i.e., the people, it must follow that the welfare of the people lies
precisely in the compliance with said Acts.

It is not for respondent executive officers now to set their own opinions against that of the
Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit
importation but under certain conditions, which have not been, and should be complied
with.

IV. The contracts with Vietnam and Burma

It is lastly contended that the Government of the Philippines has already entered into two (2)
contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the
Government of Burma; that these contracts constitute valid executive agreements under
international law; that such agreements became binding effective upon the signing thereof by
representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207
and 3452 on the one hand, and aforementioned contracts, on the other, the latter should
prevail, because, if a treaty and a statute are inconsistent with each other, the conflict must be
resolved under the American jurisprudence in favor of the one which is latest in point of
time; that petitioner herein assails the validity of acts of the Executive relative to foreign
relations in the conduct of which the Supreme Court cannot interfere; and the aforementioned
contracts have already been consummated, the Government of the Philippines having
already paid the price of the rice involved therein through irrevocable letters of credit in favor
of the sell of the said commodity. We find no merit in this pretense.

The Court is not satisfied that the status of said tracts as alleged executive agreements has
been sufficiently established. The parties to said contracts do not pear to have regarded the
same as executive agreements. But, even assuming that said contracts may properly
considered as executive agreements, the same are unlawful, as well as null and void, from a
constitutional viewpoint, said agreements being inconsistent with the provisions of Republic
Acts Nos. 2207 and 3452. Although the President may, under the American constitutional
system enter into executive agreements without previous legislative authority, he may not, by
executive agreement, enter into a transaction which is prohibited by statutes enacted prior
thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted
by Congress. The former may not interfere in the performance of the legislative powers of the
latter, except in the exercise of his veto power. He may not defeat legislative enactments that
have acquired the status of law, by indirectly repealing the same through an executive
agreement providing for the performance of the very act prohibited by said laws.

The American theory to the effect that, in the event of conflict between a treaty and a statute,
the one which is latest in point of time shall prevail, is not applicable to the case at bar, for
respondents not only admit, but, alsoinsist that the contracts adverted to are not treaties. Said
theory may be justified upon the ground that treaties to which the United States is signatory
require the advice and consent of its Senate, and, hence, of a branch of the legislative
department. No such justification can be given as regards executive agreements not
authorized by previous legislation, without completely upsetting the principle of separation of
powers and the system of checks and balances which are fundamental in our constitutional
set up and that of the United States.

As regards the question whether an international agreement may be invalidated by our courts,
suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative,
by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived
"of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of
error as the law or the rules of court may provide, final judgments and decrees of inferior
courts in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance,
or executive order or regulation is in question". In other words, our Constitution authorizes the
nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it
runs counter to an act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma
does not render this case academic, Republic Act No. 2207 enjoins our Government not
from entering into contracts for the purchase of rice, but from importing rice, except under the
conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2)
main features, namely: (a) it requires the Government to purchase rice and corn directlyfrom
our local planters, growers or landowners; and (b) it prohibits importations of rice by the
Government, and leaves such importations to private parties. The pivotal issue in this case is
whether the proposed importation which has not been consummated as yet is legally
feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our
Government to default in the performance of such obligations as it may have contracted with
the sellers of the rice in question, because, aside from the fact that said obligations may be
complied with without importing the commodity into the Philippines, the proposed importation
may still be legalized by complying with the provisions of the aforementioned laws.

V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not
respondents herein should be enjoined from implementing the aforementioned proposed
importation. However, the majority favors the negative view, for which reason the injunction
prayed for cannot be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary

had and has no power to authorize the importation in question; that he exceeded his
jurisdiction in granting said authority; said importation is not sanctioned by law and is contrary
to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be
and is, accordingly denied. It is so ordered.

Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.

Separate Opinions

BAUTISTA ANGELO, J., concurring:

Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful for any person,
association, corporation or government agency to import rice and corn into any point in the
Philippines. The exception is if there is an existing or imminent shortage of such commodity of
much gravity as to constitute national emergency in which case an importation may be
authorized by the President when so certified by the National Economic Council.
However, on June 14, 1962, Republic Act 3452 was enacted providing that the importation of
rice and corn canonly be made by private parties thereby prohibiting from doing so the Rice
and Corn Administration or any other government agency. Republic Act 3452 does not
expressly repeal Republic Act 2207, but only repeals or modified those parts thereof that are
inconsistent with its provisions. The question that now arises is: Has the enactment of
Republic Act 3452 the effect of prohibiting completely the government from importing rice and
corn into the Philippines?

My answer is in the negative. Since this Act does not in any manner provide for the
importation of rice and corn in case of national emergency, the provision of the former law on
that matter should stand, for that is not inconsistent with any provision embodied in Republic
Act 3452. The Rice and Corn Administration, or any other government agency, may therefore
still import rice and corn into the Philippines as provided in Republic Act 2207 if there is a
declared national emergency.

The next question that arises is: Can the government authorize the importation of rice and
corn regardless of Republic Act 2207 if that is authorized by the President as
Commander-in-Chief of the Philippine Army as a military precautionary measure for military
stockpile?

Respondents answer this question in the affirmative. They advance the argument that it is the
President's duty to see to it that the Armed Forces of the Philippines are geared to the
defenses of the country as well as to the fulfillment of our international commitments in
Southeast Asia in the event the peace and security of the area are in danger. The stockpiling
of rice, they aver, is an essential requirement of defense preparation in view of the limited
local supply and the probable disruption of trade and commerce with outside countries in the
event of armed hostilities, and this military precautionary measure is necessary because of
the unsettled conditions in the Southeast Asia bordering on actual threats of armed conflicts
as evaluated by the Intelligence Service of the Military Department of our Government. This
advocacy, they contend, finds support in the national defense policy embodied in Section 2 of
our National Defense Act (Commonwealth Act No. 1), which provides:

(a) The preservation of the State is the obligation of every citizen. The security of the
Philippines and the freedom, independence and perpetual neutrality of the Philippine
Republic shall be guaranteed by the employment of all citizens, without distinction of sex or
age, and all resources.

(b) The employment of the nation's citizens and resources for national defense shall be
effected by a national mobilization.

(c) The national mobilization shall include the execution of all measures necessary to pass
from a peace to a war footing.

(d) The civil authority shall always be supreme. The President of the Philippines as the
Commander-in-Chief of all military forces, shall be responsible that mobilization measures are
prepared at all times.(Emphasis supplied)

Indeed, I find in that declaration of policy that the security of the Philippines and its freedom
constitutes the core of the preservation of our State which is the basic duty of every citizen
and that to secure which it is enjoined that the President employ all the resources at his
command. But over and above all that power and duty, fundamental as they may seem, there
is the injunction that the civil authority shall always be supreme. This injunction can only mean
that while all precautions should be taken to insure the security and preservation of the State
and to this effect the employment of all resources may be resorted to, the action must always
be taken within the framework of the civil authority. Military authority should be harmonized
and coordinated with civil authority, the only exception being when the law clearly ordains
otherwise. Neither Republic Act 2207, nor Republic Act 3452, contains any exception in favor
of military action concerning importation of rice and corn. An exception must be strictly
construed.

A distinction is made between the government and government agency in an attempt to take
the former out of the operation of Republic Act 2207. I disagree. The Government of the
Republic of the Philippines under the Revised Administrative Code refers to that entity
through which the functions of government are exercised, including the various arms through
which political authority is made effective whether they be provincial, municipal or other form
of local government, whereas a government instrumentality refers to corporations owned or
controlled by the government to promote certain aspects of the economic life of our people. A
government agency, therefore, must necessarily refer to the government itself of the Republic,
as distinguished from any government instrumentality which has a personality distinct and
separate from it (Section 2).

The important point to determine, however, is whether we should enjoin respondents from
carrying out the importation of the rice which according to the record has been authorized to
be imported on government to government level, it appearing that the arrangement to this
effect has already been concluded, the only thing lacking being its implementation. This is
evident from the manifestation submitted by the Solicitor General wherein it appears that the
contract for the purchase of 47,000 tons of rice from had been sign on October 5, 1963, and
for the purchase of 20,000 tons from Burma on October 8, 1963, by the authorized
representatives of both our government and the governments of Vietnam and Burma,
respectively. If it is true that, our government has already made a formal commitment with the
selling countries there arises the question as to whether the act can still be impeded at this
stage of the negotiations. Though on this score there is a divergence of opinion, it is gratifying
to note that the majority has expressed itself against it. This is a plausible attitude for, had the
writ been issued, our government would have been placed in a predicament where, as a
necessary consequence, it would have to repudiate a duly formalized agreement to its great
embarrassment and loss of face. This was avoided by the judicial statesmanship evinced by
the Court.

BARRERA, J., concurring:

Because of possible complications that might be aggravated by misrepresentation of the true

nature and scope of the case before this Court, it is well to restate as clearly as possible, the
real and only issue presented by the respondents representing the government.

From the answer filed by the Solicitor General, in behalf of respondents, we quote:

The importation of the rice in question by the Armed Forces of the Philippines is for military
stockpilingauthorized by the President pursuant to his inherent power as commander-in-chief
and as a military precautionary measure in view the worsening situation in Laos and Vietnam
and, it may added, the recent, tension created by the Malaysia problem (Answer, p. 2;
emphasis supplied.)
During the oral argument, Senator Fernandez, appealing in behalf of the respondents,
likewise reiterated the imported rice was for military stockpiling, and which he admitted that
some of it went to the Rice and Corn Administration, he emphasized again and again that rice
was not intended for the RCA for distribution to people, as there was no shortage of rice for
that purpose but it was only exchanged for palay because this could better preserved.

From the memorandum filed thereafter by the Solicits General, again the claim was made:

We respectfully reiterate the arguments in our answer dated October 4, 1963 that the
importation of rice sought be enjoined in this petition is in the exercise of the authority vested
in the President of the Philippines as Commander-in-Chief of the Armed Forces, as a
measure of military preparedness demanded by a real and actual threat of emergency in the
South East Asian countries. (p. 1, Emphasis supplied.)

xxx xxx xxx

It (the stressing of the unsettled conditions in Southeast Asia) is merely our intention to show
the necessity for the stockpiling of rice for army purposes, which is the very reason for the
importation.

xxx xxx xxx

As it is, the importation in question is being made by the Republic of the Philippines for its own
use, and the rice is not supposed to be poured into the open market as to affect the price to be
paid by the public. (p. 4, Emphasis supplied.)

xxx xxx xxx

What we do contend is that the law, for want of express and clear provision to that
effect, does not include in its prohibition importation by the Government of rice for its own use
and not for the consuming public, regardless of whether there is or there is no emergency. (p.
5, Emphasis supplied.)

From the above, it not only appears but is evident that the respondents were not concerned
with the present rice situation confronting the consuming public, but were solely and
exclusively after the stockpiling of rice for thefuture use of the army. The issue, therefore, in
which the Government was interested is not whether rice is imported to give the people a
bigger or greater supply to maintain the price at P.80 per ganta for, to quote again their
contention: "the rice is not supposed to be poured into the open market to affect the price to
be paid by the public, as it is not for the consuming public, regardless of whether there is or
there is no emergency", but whether rice can legally be imported by the Armed Forces of
the Philippines avowedly for its future use, notwithstanding the prohibitory provisions of
Republic Acts Nos. 2207 and 3452. The majority opinion ably sets forth the reasons why this
Court can not accept the contention of the respondents that this importation is beyond and
outside the operation of these statutes. I can only emphasize that I see in the theory
advanced by the Solicitor General a dangerous trend that because the policies enunciated
in the cited laws are for the protection of the producers and the consumers, the army is
removed from their application. To adopt this theory is to proclaim the existence in the
Philippines of three economic groups or classes: the producers, the consumers, and the
Armed Forces of the Philippines. What is more portentous is the effect to equate the army
with the Government itself.
Then again, the importation of this rice for military stockpiling is sought to be justified by the
alleged threat of emergency in the Southeast Asian countries. But the existence of this
supposed threat was unilaterally determined by the Department of National Defense alone.
We recall that there exists a body called the National Security Council in which are
represented the Executive as well as the Legislative department. In it sit not only members of
the party in power but of the opposition as well. To our knowledge, this is the highest
consultative body which deliberates precisely in times of emergency threatening to affect the
security of the state. The democratic composition of this council is to guarantee that its
deliberations would be non-partisan and only the best interests of the nation will be
considered. Being a deliberative body, it insures against precipitate action. This is as it should
be. Otherwise, in these days of ever present cold war, any change or development in the
political climate in any region of the world is apt to be taken as an excuse for the military to
conjure up a crisis or emergency and thereupon attempt to override our laws and legal
processes, and imperceptibly institute some kind of martial law on the pretext of precautionary
mobilization measure avowedly in the interest of the security of the state. One need not, be
too imaginative to perceive a hint of this in the present case.

The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware of the
difficult and delicate task it had to discharge. Its position is liable to be exploited by some for
their own purposes by claiming and making it appear that the Court is unmindful of the plight
of our people during these days of hardship; that it preferred to give substance to the "niceties
of the law than heed the needs of the people. Our answer is that the Court was left no
alternative. It had, in compliance with its duty, to decide the case upon the facts presented to
it. The respondents, representing the administration, steadfastly maintained and insisted that
there is no rice shortage; that the imported rice is not for the consuming public and is not
supposed to be placed in the open market to affect the price to be paid by the public; that it is
solely for stockpiling of the army for future use as a measure of mobilization in the face of
what the Department of National Defense unilaterally deemed a threatened armed conflict in
Southeast Asia. Confronted with these facts upon, which the Government has built and rested
its case, we have searched in vain for legal authority or cogent reasons to justify this
importation made admittedly contrary to the provisions of Republic Acts Nos. 2207 and 3452.
I say admittedly, because respondents never as much as pretended that the importation
fulfills the conditions specified in these laws, but limited themselves to the contention, which is
their sole defense that this importation does not fall within the scope of said laws. In our view,
however, the laws are clear. The laws are comprehensive and their application does not admit
of any exception. The laws are adequate. Compliance therewith is not difficult, much less
impossible. The avowed emergency, if at all, is not urgently immediate.

In this connection, it is pertinent to bear in mind that the Supreme Court has a duty to perform
under the Constitution. It has to decide, when called upon to do so in an appropriate
proceeding, all cases in which the constitutionality or validity of any treaty, law, ordinance,
executive order or regulation is in question. We can not elude this duty. To do so would be
culpable dereliction on our part. While we sympathize with the public that might be adversely
affected as a result of this decision yet our sympathy does not authorize us to sanction an act
contrary to applicable laws. The fault lies with those who stubbornly contended and
represented before this Court that there is no rice shortage, that the imported rice is not
intended for the consuming public, but for stockpiling of the army. And, if as now claimed
before the public, contrary to the Government's stand in this case, that there is need for
imported rice to stave off hunger, our legislature has provided for such a situation. As already
stated, the laws are adequate. The importation of rice under the conditions set forth in the
laws may be authorized not only where there is an existing shortage, but also when the
shortage is imminent. In other words, lawful remedy to solve the situation is available, if only
those who have the duty to execute the laws perform their duty. If there is really need for the
importation of rice, who adopt some dubious means which necessitates resort to doubtful
exercise of the power of the President as Commander-in-Chief of the Army? Why not comply
with the mandate of the law? Ours is supposed to be a regime under the rule of law. Adoption
as a government policy of the theory of the end justifies the means brushing aside
constitutional and legal restraints, must be rejected, lest we end up with the end of freedom.

For these reasons, I concur in the decision of the Court.

Separate Opinions

Footnotes

1
The Secretary of National Defense, the Auditor General, the Secretary of Commerce and
Industry, and the Secretary Justice.

2
275 hectares.

3
Tapales vs. The President and the Board of Regents of the U.P., L-17523, March 30, 1963.

4
Mangubat vs. Osmea, L-12837, April 30, 1959; Baguio vs. Hon. Jose Rodriguez, L-11078,
May 27, 1959; Pascual Provincial Board, L-11959, October 31, 1959.

5
Marinduque Iron Mines Agents, Inc. vs. Secretary of Public Works, L-15982, May 31, 1963.

6
In the present case, respondents allege in their answer that "the importation ... in
question ... is authorized by the President.

7
Alzate vs. Aldaba, L-14407, February 29, 1960; Demaisip vs. Court of Appeals, L-13000,
September 25, 1959.

8
Which provides that the national defense policy of the Philippines shall be follows:

(a) The preservation of the state is the obligation of every citizen. The security of the
Philippines and the freedom, independence and perpetual neutrality of the Philippine
Republic shall be guaranteed by the employment of all citizens, without distinction of sex or
age, and all resources.

(b) The employment of the nation's citizens and resources for national defense shall be
effected by a national mobilization.

(c) The national mobilization shall include the execution of all measures necessary to pass
from a peace to a war footing.

(d) The civil authority shall always be supreme. The President of the Philippines as the
Commander-in-Chief of all military forces, shall be responsible that mobilization measures are
prepared at all times.

xxx xxx xxx

9
In line with the provisions of paragraphs b), c), e), and f) of section 2 of said Act.

10
The Constitution and What It Means Today, pp. 95-96.

11
The Power of the President as Commander-in-Chief is primarily that of military command in
wartime, and as such includes, as against the persons and property of enemies of the United
States encountered within the theater of military operations, all the powers allowed a military
commander in such cases by the Law of Nations. President Lincoln's famous Proclamation of
Emancipation rested upon this ground. It was effective within the theater of military operations
while the war lasted, but no longer. (p. 93, Emphasis supplied.)

12
From an early date the Commander-in-Chief power came to be merged with the President's
duty to take care that the laws be faithfully executed. So, while in using military force against
unlawful combinations too strong to be dealt with through the ordinary processes of law the
President acts by authorization of statute, his powers are still those of
Commander-in-Chief. ...

Under "preventive martial law", so-called because it authorizes "preventive" arrests and
detentions, the military acts as an adjunct of the civil authorities but not necessarily subject to
their orders. It may be established whenever the executive organ, State or national, deems it
to be necessary for the restoration of good order. The concept, being of judicial origin, is of
course for judicial application, and ultimately for application by the Supreme Court, in
enforcement of the due process clauses. (See, also, Section III of this Article, and Article IV,
Section IV.) (Pp. 95-96, Emphasis supplied.)
 Republic of the Philippines
Supreme Court
Manila

EN BANC

ISABELITA C. VINUYA, VICTORIA G.R. No. 162230

C. DELA PEA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA
L. QUILANTANG, MARIA L. MAGISA,
NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO,
ERLINDA MANALASTAS, TARCILA
M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A.
SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PEA, Present:
EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA PUNO, C. J.,
ALONZO, RUFINA P. MALLARI, CARPIO,
ROSARIO M. ALARCON, RUFINA C. CORONA,
GULAPA, ZOILA B. MANALUS, CARPIO MORALES,
CORAZON C. CALMA, MARTA A. VELASCO, JR.,
GULAPA, TEODORA M. HERNANDEZ, NACHURA,
FERMIN B. DELA PEA, MARIA DELA LEONARDO-DE CASTRO,
PAZ B. CULALA, ESPERANZA BRION,
MANAPOL, JUANITA M. BRIONES, PERALTA,
VERGINIA M. GUEVARRA, MAXIMA BERSAMIN,
ANGULO, EMILIA SANGIL, TEOFILA DEL CASTILLO,
R. PUNZALAN, JANUARIA G. GARCIA, ABAD,
PERLA B. BALINGIT, BELEN A. VILLARAMA, JR.,
CULALA, PILAR Q. GALANG, PEREZ, and
ROSARIO C. BUCO, GAUDENCIA C. MENDOZA, JJ.
DELA PEA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C.
GUEVARRA, VICTORIA M. DELA
CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON
M. SUBA, EMERINCIANA A. VINUYA,
LYDIA A. SANCHEZ, ROSALINA M.
BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA
LIWAG, ESTER C. BALINGIT, JOVITA
A. DAVID, EMILIA C. MANGILIT,
VERGINIA M. BANGIT, GUILLERMA
S. BALINGIT, TERECITA PANGILINAN,
MAMERTA C. PUNO, CRISENCIANA
C. GULAPA, SEFERINA S. TURLA, Promulgated:
MAXIMA B. TURLA, LEONICIA G. April 28, 2010
GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T.
SAGUM, CARIDAD L. TURLA, et al.
In their capacity and as members of the
Malaya Lolas Organization,
Petitioners,

- versus -

THE HONORABLE EXECUTIVE

SECRETARY ALBERTO G.
ROMULO, THE HONORABLE
SECRETARY OF FOREIGN
AFFAIRS DELIA DOMINGO-
ALBERT, THE HONORABLE
SECRETARY OF JUSTICE
MERCEDITAS N. GUTIERREZ,
and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO,
Respondents.
x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

 The Treaty of Peace with Japan, insofar as it barred future claims such as those
asserted by plaintiffs in these actions, exchanged full compensation of plaintiffs
for a future peace. History has vindicated the wisdom of that bargain. And while
full compensation for plaintiffs' hardships, in the purely economic sense, has been
denied these former prisoners and countless other survivors of the war, the
immeasurable bounty of life for themselves and their posterity in a free society
and in a more peaceful world services the debt.[1]

There is a broad range of vitally important areas that must be regularly decided by
the Executive Department without either challenge or interference by the Judiciary.
One such area involves the delicate arena of foreign relations. It would be strange
indeed if the courts and the executive spoke with different voices in the realm of
foreign policy. Precisely because of the nature of the questions presented, and the
lapse of more than 60 years since the conduct complained of, we make no attempt
to lay down general guidelines covering other situations not involved here, and
confine the opinion only to the very questions necessary to reach a decision on this
matter.

Factual Antecedents

This is an original Petition for Certiorari under Rule 65 of the Rules of

Court with an application for the issuance of a writ of preliminary mandatory
injunction against the Office of the Executive Secretary, the Secretary of the
Department of Foreign Affairs (DFA), the Secretary of the Department of Justice
(DOJ), and the Office of the Solicitor General (OSG).

Petitioners are all members of the MALAYA LOLAS, a non-stock,

non-profit organization registered with the Securities and Exchange
Commission, established for the purpose of providing aid to the victims of
rape by Japanese military forces in the Philippines during the Second World
War.

Petitioners narrate that during the Second World War, the Japanese army
attacked villages and systematically raped the women as part of the destruction of
the village. Their communities were bombed, houses were looted and burned, and
civilians were publicly tortured, mutilated, and slaughtered. Japanese soldiers
forcibly seized the women and held them in houses or cells, where they were
repeatedly raped, beaten, and abused by Japanese soldiers. As a result of the
actions of their Japanese tormentors, the petitioners have spent their lives in misery,
having endured physical injuries, pain and disability, and mental and emotional
suffering.[2]
Petitioners claim that since 1998, they have approached the Executive
Department through the DOJ, DFA, and OSG, requesting assistance in filing a
claim against the Japanese officials and military officers who ordered the
establishment of the comfort women stations in the Philippines. However, officials
of the Executive Department declined to assist the petitioners, and took the
position that the individual claims of the comfort women for compensation had
already been fully satisfied by Japans compliance with the Peace Treaty between
the Philippines andJapan.

Issues

Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the crimes against humanity and
war crimes committed against them; and (b) compel the respondents to espouse
their claims for official apology and other forms of reparations against Japan
before the International Court of Justice (ICJ) and other international tribunals.

Petitioners arguments

Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the comfort
women system established by Japan, and the brutal rape and enslavement of
petitioners constituted a crime against humanity,[3] sexual slavery,[4] and
torture.[5] They allege that the prohibition against these international crimes is jus
cogens norms from which no derogation is possible; as such, in waiving the claims
of Filipina comfort women and failing to espouse their complaints against Japan,
the Philippine government is in breach of its legal obligation not to afford
impunity for crimes against humanity. Finally, petitioners assert that the Philippine
governments acceptance of the apologies made by Japan as well as funds from the
Asian Womens Fund (AWF) were contrary to international law.

Respondents Arguments

Respondents maintain that all claims of the Philippines and its nationals relative to
the war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956.[6]
Article 14 of the Treaty of Peace[7] provides:

Article 14. Claims and Property

a) It is recognized that Japan should pay reparations to the Allied Powers for the
damage and suffering caused by it during the war. Nevertheless it is
also recognized that the resources of Japan are not presently
sufficient, if it is to maintain a viable economy, to make complete
reparation for all such damage and suffering and at the present time
meet its other obligations.

b) Except as otherwise provided in the present Treaty, the Allied

Powers waive all reparations claims of the Allied Powers, other
claims of the Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the course of the
prosecution of the war, and claims of the Allied Powers for direct
military costs of occupation.

In addition, respondents argue that the apologies made by Japan[8] have

been satisfactory, and that Japan had addressed the individual claims of the women
through the atonement money paid by the Asian Womens Fund.
Historical Background

The comfort women system was the tragic legacy of the Rape of Nanking. In
December 1937, Japanese military forces captured the city
of Nanking in China and began a barbaric campaign of terror known as the Rape
of Nanking, which included the rapes and murders of an estimated 20,000 to
80,000 Chinese women, including young girls, pregnant mothers, and elderly
women.[9]
 In reaction to international outcry over the incident, the Japanese
government sought ways to end international condemnation[10] by establishing the
comfort women system. Under this system, the military could simultaneously
appease soldiers' sexual appetites and contain soldiers' activities within a regulated
environment.[11] Comfort stations would also prevent the spread of venereal
disease among soldiers and discourage soldiers from raping inhabitants of
occupied territories.[12]

Daily life as a comfort woman was unmitigated misery.[13] The military forced
victims into barracks-style stations divided into tiny cubicles where they were
forced to live, sleep, and have sex with as many 30 soldiers per day.[14] The 30
minutes allotted for sexual relations with each soldier were 30-minute increments
of unimaginable horror for the women.[15] Disease was rampant.[16] Military
doctors regularly examined the women, but these checks were carried out to
prevent the spread of venereal diseases; little notice was taken of the frequent
cigarette burns, bruises, bayonet stabs and even broken bones inflicted on the
women by soldiers.

Fewer than 30% of the women survived the war.[17] Their agony continued in
having to suffer with the residual physical, psychological, and emotional scars
from their former lives. Some returned home and were ostracized by their families.
Some committed suicide. Others, out of shame, never returned home.[18]

Efforts to Secure Reparation

The most prominent attempts to compel the Japanese government to accept

legal responsibility and pay compensatory damages for the comfort women
system were through a series of lawsuits, discussion at the United Nations (UN),
resolutions by various nations, and the Womens International Criminal Tribunal.
The Japanese government, in turn, responded through a series of public apologies
and the creation of the AWF.[19]

Lawsuits
 In December 1991, Kim Hak-Sun and two other survivors filed the first
lawsuit in Japan by former comfort women against the Japanese government. The
Tokyo District Court however dismissed their case.[20] Other suits followed,[21] but
the Japanese government has, thus far, successfully caused the dismissal of every
case.[22]

Undoubtedly frustrated by the failure of litigation before Japanese courts,

victims of the comfort women system brought their claims before the United
States (US). On September 18, 2000, 15 comfort women filed a class action
lawsuit in the US District Court for the District of Columbia[23] "seeking money
damages for [allegedly] having been subjected to sexual slavery and torture before
and during World War II," in violation of "both positive and customary
international law." The case was filed pursuant to the Alien Tort Claims Act
(ATCA),[24] which allowed the plaintiffs to sue the Japanese government in
a US federal district court.[25] On October 4, 2001, the district court dismissed the
lawsuit due to lack of jurisdiction over Japan, stating that [t]here is no question that
this court is not the appropriate forum in which plaintiffs may seek to reopen x x x
discussions nearly half a century later x x x [E]ven if Japan did not enjoy
sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed.

The District of Columbia Court of Appeals affirmed the lower court's

dismissal of the case.[26] On appeal, the US Supreme Court granted the womens
petition for writ of certiorari, vacated the judgment of the District of Columbia
Court of Appeals, and remanded the case.[27] On remand, the Court of Appeals
affirmed its prior decision, noting that much as we may feel for the plight of the
appellants, the courts of the US simply are not authorized to hear their case.[28] The
women again brought their case to the US Supreme Court which denied their
petition for writ of certiorari on February 21, 2006.

Efforts at the United Nations

In 1992, the Korean Council for the Women Drafted for Military Sexual
Slavery by Japan (KCWS), submitted a petition to the UN Human Rights
Commission (UNHRC), asking for assistance in investigating crimes committed
by Japan against Korean women and seeking reparations for former comfort
women.[29] The UNHRC placed the issue on its agenda and appointed Radhika
Coomaraswamy as the issue's special investigator. In 1996, Coomaraswamy
issued a Report reaffirming Japan's responsibility in forcing Korean women to act
as sex slaves for the imperial army, and made the following recommendations:

A. At the national level

137. The Government of Japan should:

(a) Acknowledge that the system of comfort stations set up by the Japanese
Imperial Army during the Second World War was a violation of its
obligations under international law and accept legal responsibility for that
violation;

(b) Pay compensation to individual victims of Japanese military sexual slavery

according to principles outlined by the Special Rapporteur of the
Sub-Commission on Prevention of Discrimination and Protection of
Minorities on the right to restitution, compensation and rehabilitation for
victims of grave violations of human rights and fundamental freedoms. A
special administrative tribunal for this purpose should be set up with a
limited time-frame since many of the victims are of a very advanced age;

(c) Make a full disclosure of documents and materials in its possession with
regard to comfort stations and other related activities of the Japanese
Imperial Army during the Second World War;

(d) Make a public apology in writing to individual women who have come
forward and can be substantiated as women victims of Japanese military
sexual slavery;

(e) Raise awareness of these issues by amending educational curricula to reflect

historical realities;

(f) Identify and punish, as far as possible, perpetrators involved in the recruitment
and institutionalization of comfort stations during the Second World
War.

Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on

Prevention of Discrimination and Protection of Minorities, also presented a report
to the Sub-Committee on June 22, 1998 entitled Contemporary Forms of Slavery:
Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed
Conflict. The report included an appendix entitled An Analysis of the Legal
Liability of the Government of Japan for 'Comfort Women Stations' established
during the Second World War,[30] which contained the following findings:

68. The present report concludes that the Japanese Government remains liable for
grave violations of human rights and humanitarian law, violations that amount in
their totality to crimes against humanity. The Japanese Governments arguments
to the contrary, including arguments that seek to attack the underlying
humanitarian law prohibition of enslavement and rape, remain as unpersuasive
today as they were when they were first raised before the Nuremberg war crimes
tribunal more than 50 years ago. In addition, the Japanese Governments
argument that Japan has already settled all claims from the Second World War
through peace treaties and reparations agreements following the war remains
equally unpersuasive. This is due, in large part, to the failure until very recently of
the Japanese Government to admit the extent of the Japanese militarys direct
involvement in the establishment and maintenance of these rape centres. The
Japanese Governments silence on this point during the period in which peace and
reparations agreements between Japan and other Asian Governments were being
negotiated following the end of the war must, as a matter of law and justice,
preclude Japan from relying today on these peace treaties to extinguish liability in
these cases.

69. The failure to settle these claims more than half a century after the cessation
of hostilities is a testament to the degree to which the lives of women continue to
be undervalued. Sadly, this failure to address crimes of a sexual nature committed
on a massive scale during the Second World War has added to the level of
impunity with which similar crimes are committed today. The Government of
Japan has taken some steps to apologize and atone for the rape and enslavement
of over 200,000 women and girls who were brutalized in comfort stations during
the Second World War. However, anything less than full and unqualified
acceptance by the Government of Japan of legal liability and the consequences
that flow from such liability is wholly inadequate. It must now fall to the
Government of Japan to take the necessary final steps to provide adequate
redress.

The UN, since then, has not taken any official action directing Japan to provide the
reparations sought.
Women's International War Crimes

Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a people's
tribunal established by a number of Asian women and human rights organizations,
supported by an international coalition of non-governmental organizations.[31] First
proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to
adjudicate Japan's military sexual violence, in particular the enslavement of
comfort women, to bring those responsible for it to justice, and to end the ongoing
cycle of impunity for wartime sexual violence against women.

After examining the evidence for more than a year, the tribunal issued its
verdict on December 4, 2001, finding the former Emperor Hirohito and the State
of Japan guilty of crimes against humanity for the rape and sexual slavery of
women.[32] It bears stressing, however, that although the tribunal included
prosecutors, witnesses, and judges, its judgment was not legally binding since the
tribunal itself was organized by private citizens.

Action by Individual Governments

On January 31, 2007, US Representative Michael Honda of California, along with

six co-sponsor representatives, introduced House Resolution 121 which called for
Japanese action in light of the ongoing struggle for closure by former comfort
women. The Resolution was formally passed on July 30, 2007,[33] and made four
distinct demands:

[I]t is the sense of the House of Representatives that the Government of Japan (1)
should formally acknowledge, apologize, and accept historical responsibility in a
clear and unequivocal manner for its Imperial Armed Forces' coercion of young
women into sexual slavery, known to the world as comfort women, during its
colonial and wartime occupation of Asia and the Pacific Islands from the 1930s
through the duration of World War II; (2) would help to resolve recurring
questions about the sincerity and status of prior statements if the Prime Minister
of Japan were to make such an apology as a public statement in his official
capacity; (3) should clearly and publicly refute any claims that the sexual
enslavement and trafficking of the comfort women for the Japanese Imperial
Army never occurred; and (4) should educate current and future generations
about this horrible crime while following the recommendations of the
international community with respect to the comfort women.[34]

In December 2007, the European Parliament, the governing body of the

European Union, drafted a resolution similar to House Resolution
121.[35] Entitled, Justice for Comfort Women, the resolution demanded: (1) a
formal acknowledgment of responsibility by the Japanese government; (2) a
removal of the legal obstacles preventing compensation; and (3) unabridged
education of the past. The resolution also stressed the urgency with
which Japan should act on these issues, stating: the right of individuals to claim
reparations against the government should be expressly recognized in national law,
and cases for reparations for the survivors of sexual slavery, as a crime under
international law, should be prioritized, taking into account the age of the
survivors.

The Canadian and Dutch parliaments have each followed suit in drafting
resolutions against Japan. Canada's resolution demands the Japanese government
to issue a formal apology, to admit that its Imperial Military coerced or forced
hundreds of thousands of women into sexual slavery, and to restore references in
Japanese textbooks to its war crimes.[36] The Dutch parliament's resolution calls for
the Japanese government to uphold the 1993 declaration of remorse made by
Chief Cabinet Secretary Yohei Kono.

The Foreign Affairs Committee of the United Kingdoms Parliament also

produced a report in November, 2008 entitled, "Global Security: Japan and
Korea" which concluded thatJapan should acknowledge the pain caused by the
issue of comfort women in order to ensure cooperation between Japan and Korea.

Statements of Remorse made by

representatives of the Japanese
government

Various officials of the Government of Japan have issued the following

public statements concerning the comfort system:

a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:

The Government of Japan has been conducting a study on the issue of wartime
"comfort women" since December 1991. I wish to announce the findings as a
result of that study.
As a result of the study which indicates that comfort stations were operated in
extensive areas for long periods, it is apparent that there existed a great number of
comfort women. Comfort stations were operated in response to the request of the
military authorities of the day. The then Japanese military was, directly or
indirectly, involved in the establishment and management of the comfort stations
and the transfer of comfort women. The recruitment of the comfort women was
conducted mainly by private recruiters who acted in response to the request of the
military. The Government study has revealed that in many cases they were
recruited against their own will, through coaxing coercion, etc., and that, at times,
administrative/military personnel directly took part in the recruitments. They
lived in misery at comfort stations under a coercive atmosphere.

As to the origin of those comfort women who were transferred to the war areas,
excluding those from Japan, those from the Korean Peninsula accounted for a
large part. The Korean Peninsula was under Japanese rule in those days, and their
recruitment, transfer, control, etc., were conducted generally against their will,
through coaxing, coercion, etc.

Undeniably, this was an act, with the involvement of the military authorities of
the day, that severely injured the honor and dignity of many women. The
Government of Japan would like to take this opportunity once again to extend its
sincere apologies and remorse to all those, irrespective of place of origin, who
suffered immeasurable pain and incurable physical and psychological wounds as
comfort women.

It is incumbent upon us, the Government of Japan, to continue to consider

seriously, while listening to the views of learned circles, how best we can express
this sentiment.

We shall face squarely the historical facts as described above instead of evading
them, and take them to heart as lessons of history. We hereby reiterated our firm
determination never to repeat the same mistake by forever engraving such issues
in our memories through the study and teaching of history.

As actions have been brought to court in Japan and interests have been shown in
this issue outside Japan, the Government of Japan shall continue to pay full
attention to this matter, including private researched related thereto.

b) Prime Minister Tomiichi Murayamas Statement in 1994

On the issue of wartime comfort women, which seriously stained the honor and
dignity of many women, I would like to take this opportunity once again to
express my profound and sincere remorse and apologies
c) Letters from the Prime Minister of Japan to Individual Comfort Women
The issue of comfort women, with the involvement of the Japanese military
authorities at that time, was a grave affront to the honor and dignity of a large
number of women.

As Prime Minister of Japan, I thus extend anew my most sincere apologies and
remorse to all the women who endured immeasurable and painful experiences
and suffered incurable physical and psychological wounds as comfort women.

I believe that our country, painfully aware of its moral responsibilities, with
feelings of apology and remorse, should face up squarely to its past history and
accurately convey it to future generations.

d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005

Solemnly reflecting upon the many instances of colonial rule and acts of
aggression that occurred in modern world history, and recognizing
that Japan carried out such acts in the past and inflicted suffering on the people of
other countries, especially in Asia, the Members of this House hereby express
deep remorse. (Resolution of the House of Representatives adopted on June 9,
1995)

e) Various Public Statements by Japanese Prime Minister Shinzo Abe

I have talked about this matter in the Diet sessions last year, and recently as well,
and to the press. I have been consistent. I will stand by the Kono Statement. This
is our consistent position. Further, we have been apologizing sincerely to those
who suffered immeasurable pain and incurable psychological wounds as comfort
women. Former Prime Ministers, including Prime Ministers Koizumi and
Hashimoto, have issued letters to the comfort women. I would like to be clear
that I carry the same feeling. This has not changed even slightly. (Excerpt from
Remarks by Prime Minister Abe at an Interview by NHK, March 11, 2007).

I am apologizing here and now. I am apologizing as the Prime Minister and it is

as stated in the statement by the Chief Cabinet Secretary Kono. (Excerpt from
Remarks by Prime Minister Abe at the Budget Committee, the House of
Councilors, the Diet of Japan, March 26, 2007).

I am deeply sympathetic to the former comfort women who suffered hardships,

and I have expressed my apologies for the extremely agonizing circumstances
into which they were placed. (Excerpt from Telephone Conference by Prime
Minister Abe to President George W. Bush, April 3, 2007).
 I have to express sympathy from the bottom of my heart to those people who
were taken as wartime comfort women. As a human being, I would like to
express my sympathies, and also as prime minister ofJapan I need to apologize to
them. My administration has been saying all along that we continue to stand by
the Kono Statement. We feel responsible for having forced these women to go
through that hardship and pain as comfort women under the circumstances at the
time. (Excerpt from an interview article "A Conversation with Shinzo Abe" by
the Washington Post, April 22, 2007).

x x x both personally and as Prime Minister of Japan, my heart goes out in

sympathy to all those who suffered extreme hardships as comfort women; and I
expressed my apologies for the fact that they were forced to endure such extreme
and harsh conditions. Human rights are violated in many parts of the world
during the 20th Century; therefore we must work to make the 21st Century a
wonderful century in which no human rights are violated. And the Government
of Japan and I wish to make significant contributions to that end. (Excerpt from
Prime Minister Abe's remarks at the Joint Press Availability after the summit
meeting at Camp David between Prime Minister Abe and President Bush, April
27, 2007).

The Asian Women's Fund

Established by the Japanese government in 1995, the AWF represented the

government's concrete attempt to address its moral responsibility by offering
monetary compensation to victims of the comfort women system.[37] The purpose
of the AWF was to show atonement of the Japanese people through expressions of
apology and remorse to the former wartime comfort women, to restore their honor,
and to demonstrate Japans strong respect for women.[38]

The AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying 2 million (approximately $20,000) to
each woman; (2) medical and welfare support programs, paying 2.5-3 million
($25,000-$30,000) for each woman; and (3) a letter of apology from the Japanese
Prime Minister to each woman. Funding for the program came from the Japanese
government and private donations from the Japanese people. As of March 2006,
the AWF provided 700 million (approximately $7 million) for these programs
inSouth Korea, Taiwan, and the Philippines; 380 million (approximately $3.8
million) in Indonesia; and 242 million (approximately $2.4 million) in
the Netherlands.

On January 15, 1997, the AWF and the Philippine government signed a
Memorandum of Understanding for medical and welfare support programs for
former comfort women. Over the next five years, these were implemented by the
Department of Social Welfare and Development.

Our Ruling

Stripped down to its essentials, the issue in this case is whether the
Executive Department committed grave abuse of discretion in not espousing
petitioners claims for official apology and other forms of reparations against Japan.

The petition lacks merit.

From a Domestic Law Perspective, the

Executive Department has the exclusive
prerogative to determine whether to
espouse petitioners claims
against Japan.

Baker v. Carr[39] remains the starting point for analysis under the political
question doctrine. There the US Supreme Court explained that:

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.
In Taada v. Cuenco,[40] we 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."

Certain types of cases often have been found to present political questions.[41] One
such category involves questions of foreign relations. It is well-established that
"[t]he conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislative--'the political'--departments of the
government, and the propriety of what may be done in the exercise of this political
power is not subject to judicial inquiry or decision."[42] The US Supreme Court has
further cautioned that decisions relating to foreign policy

are delicate, complex, and involve large elements of prophecy. They are and
should be undertaken only by those directly responsible to the people whose
welfare they advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility.[43]

To be sure, not all cases implicating foreign relations present political questions,
and courts certainly possess the authority to construe or invalidate treaties and
executive agreements.[44]However, the question whether the Philippine
government should espouse claims of its nationals against a foreign government is
a foreign relations matter, the authority for which is demonstrably committed by
our Constitution not to the courts but to the political branches. In this case, the
Executive Department has already decided that it is to the best interest of the
country to waive all claims of its nationals for reparations against Japan in the
Treaty of Peace of 1951. The wisdom of such decision is not for the courts to
question. Neither could petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme

Court held that [t]he President is the sole organ of the nation in its external
relations, and its sole representative with foreign relations.
 It is quite apparent that if, in the maintenance of our international relations,
embarrassment -- perhaps serious embarrassment -- is to be avoided and success
for our aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must often accord to
the President a degree of discretion and freedom from statutory restriction which
would not be admissible where domestic affairs alone involved. Moreover, he,
not Congress, has the better opportunity of knowing the conditions which prevail
in foreign countries, and especially is this true in time of war. He has his
confidential sources of information. He has his agents in the form of diplomatic,
consular and other officials. x x x

This ruling has been incorporated in our jurisprudence through Bayan v.

Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching
principle was, perhaps, best articulated in (now Chief) Justice Punos dissent
in Secretary of Justice v. Lantion:[48]

x x x The conduct of foreign relations is full of complexities and consequences,

sometimes with life and death significance to the nation especially in times of
war. It can only be entrusted to that department of government which can act on
the basis of the best available information and can decide with decisiveness. x x x
It is also the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and consular
officials regularly brief him on meaningful events all over the world. He has also
unlimited access to ultra-sensitive military intelligence data.In fine, the
presidential role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs. The
regularity, nay, validity of his actions are adjudged under less stringent standards,
lest their judicial repudiation lead to breach of an international obligation, rupture
of state relations, forfeiture of confidence, national embarrassment and a plethora
of other problems with equally undesirable consequences.

The Executive Department has determined that taking up petitioners cause would
be inimical to our countrys foreign policy interests, and could disrupt our relations
with Japan, thereby creating serious implications for stability in this region. For us
to overturn the Executive Departments determination would mean an assessment
of the foreign policy judgments by a coordinate political branch to which authority
to make that judgment has been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine government
was without authority to negotiate the Treaty of Peace with Japan. And it is
equally true that, since time immemorial, when negotiating peace accords and
settling international claims:

x x x [g]overnments have dealt with x x x private claims as their own, treating

them as national assets, and as counters, `chips', in international bargaining.
Settlement agreements have lumped, or linked, claims deriving from private
debts with others that were intergovernmental in origin, and concessions in
regard to one category of claims might be set off against concessions in the other,
or against larger political considerations unrelated to debts.[49]

Indeed, except as an agreement might otherwise provide, international settlements

generally wipe out the underlying private claims, thereby terminating any recourse
under domestic law. InWare v. Hylton,[50] a case brought by a British subject to
recover a debt confiscated by the Commonwealth of Virginia during the war,
Justice Chase wrote:

I apprehend that the treaty of peace abolishes the subject of the war, and that after
peace is concluded, neither the matter in dispute, nor the conduct of either party,
during the war, can ever be revived, or brought into contest again. All violences,
injuries, or damages sustained by the government, or people of either, during the
war, are buried in oblivion; and all those things are implied by the very treaty of
peace; and therefore not necessary to be expressed. Hence it follows, that the
restitution of, or compensation for, British property confiscated, or extinguished,
during the war, by any of the United States, could only be provided for by the
treaty of peace; and if there had been no provision, respecting these subjects, in
the treaty, they could not be agitated after the treaty, by the British government,
much less by her subjects in courts of justice. (Emphasis supplied).

This practice of settling claims by means of a peace treaty is certainly

nothing new. For instance, in Dames & Moore v. Regan,[51] the US Supreme Court
held:

Not infrequently in affairs between nations, outstanding claims by nationals of

one country against the government of another country are sources of friction
between the two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct.
552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have often
entered into agreements settling the claims of their respective nationals. As one
 treatise writer puts it, international agreements settling claims by nationals of one
state against the government of another are established international practice
reflecting traditional international theory. L. Henkin, Foreign Affairs and the
Constitution 262 (1972). Consistent with that principle, the United States has
repeatedly exercised its sovereign authority to settle the claims of its nationals
against foreign countries. x x x Under such agreements, the President has agreed
to renounce or extinguish claims of United States nationals against foreign
governments in return for lump-sum payments or the establishment of arbitration
procedures. To be sure, many of these settlements were encouraged by
the United States claimants themselves, since a claimant's only hope of obtaining
any payment at all might lie in having his Government negotiate a diplomatic
settlement on his behalf. But it is also undisputed that the United States has
sometimes disposed of the claims of its citizens without their consent, or even
without consultation with them, usually without exclusive regard for their
interests, as distinguished from those of the nation as a whole. Henkin, supra, at
262-263. Accord, Restatement (Second) of Foreign Relations Law of the United
States 213 (1965) (President may waive or settle a claim against a foreign state x
x x [even] without the consent of the [injured] national). It is clear that the
practice of settling claims continues today.

Respondents explain that the Allied Powers concluded the Peace Treaty
with Japan not necessarily for the complete atonement of the suffering caused by
Japanese aggression during the war, not for the payment of adequate reparations,
but for security purposes. The treaty sought to prevent the spread of communism
in Japan, which occupied a strategic position in the Far East. Thus, the Peace
Treaty compromised individual claims in the collective interest of the free world.

This was also the finding in a similar case involving American victims of Japanese
slave labor during the war.[52] In a consolidated case in the Northern District of
California,[53] the court dismissed the lawsuits filed, relying on the 1951 peace
treaty with Japan,[54] because of the following policy considerations:

The official record of treaty negotiations establishes that a fundamental goal of

the agreement was to settle the reparations issue once and for all. As the
statement of the chief United States negotiator, John Foster Dulles, makes clear, it
was well understood that leaving open the possibility of future claims would
be an unacceptable impediment to a lasting peace:

Reparation is usually the most controversial aspect of

peacemaking. The present peace is no exception.
 On the one hand, there are claims both vast and just. Japan's
aggression caused tremendous cost, losses and suffering.

On the other hand, to meet these claims, there stands

a Japan presently reduced to four home islands which are unable
to produce the food its people need to live, or the raw materials
they need to work. x x x

The policy of the United States that Japanese liability for reparations should be
sharply limited was informed by the experience of six years of United States-led
occupation of Japan. During the occupation the Supreme Commander of the
Allied Powers (SCAP) for the region, General Douglas MacArthur, confiscated
Japanese assets in conjunction with the task of managing the economic affairs of
the vanquished nation and with a view to reparations payments. It soon became
clear that Japan's financial condition would render any aggressive
reparations plan an exercise in futility. Meanwhile, the importance of a
stable, democratic Japan as a bulwark to communism in the region
increased. At the end of 1948, MacArthur expressed the view that [t]he use of
reparations as a weapon to retard the reconstruction of a viable economy in Japan
should be combated with all possible means and recommended that the
reparations issue be settled finally and without delay.

That this policy was embodied in the treaty is clear not only from the negotiations
history but also from the Senate Foreign Relations Committee report
recommending approval of the treaty by the Senate. The committee noted, for
example:

Obviously insistence upon the payment of reparations in any

proportion commensurate with the claims of the injured
countries and their nationals would wreck Japan's economy,
dissipate any credit that it may possess at present, destroy the
initiative of its people, and create misery and chaos in which the
seeds of discontent and communism would flourish. In short, [it]
would be contrary to the basic purposes and policy of x x
x the United States x x x.

We thus hold that, from a municipal law perspective, that certiorari will not lie. As
a general principle and particularly here, where such an extraordinary length of
time has lapsed between the treatys conclusion and our consideration the
Executive must be given ample discretion to assess the foreign policy
considerations of espousing a claim against Japan, from the standpoint of both the
interests of the petitioners and those of the Republic, and decide on that basis if
apologies are sufficient, and whether further steps are appropriate or necessary.
The Philippines is not under any
international obligation to espouse
petitioners claims.

In the international sphere, traditionally, the only means available for individuals
to bring a claim within the international legal system has been when the individual
is able to persuade a government to bring a claim on the individuals
behalf.[55] Even then, it is not the individuals rights that are being asserted, but
rather, the states own rights. Nowhere is this position more clearly reflected than in
the dictum of the Permanent Court of International Justice (PCIJ) in the
1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting to diplomatic action
or international judicial proceedings on his behalf, a State is in reality asserting
its own right to ensure, in the person of its subjects, respect for the rules of
international law. The question, therefore, whether the present dispute originates
in an injury to a private interest, which in point of fact is the case in many
international disputes, is irrelevant from this standpoint. Once a State has taken
up a case on behalf of one of its subjects before an international tribunal, in the
eyes of the latter the State is sole claimant.[56]
Since the exercise of diplomatic protection is the right of the State, reliance
on the right is within the absolute discretion of states, and the decision whether to
exercise the discretion may invariably be influenced by political considerations
other than the legal merits of the particular claim.[57] As clearly stated by the ICJ in
Barcelona Traction:

The Court would here observe that, within the limits prescribed by international
law, a State may exercise diplomatic protection by whatever means and to
whatever extent it thinks fit, for it is its own right that the State is asserting.
Should the natural or legal person on whose behalf it is acting consider that
their rights are not adequately protected, they have no remedy in
international law. All they can do is resort to national law, if means are available,
with a view to furthering their cause or obtaining redress. The municipal
legislator may lay upon the State an obligation to protect its citizens abroad, and
may also confer upon the national a right to demand the performance of that
obligation, and clothe the right with corresponding sanctions. However, all these
questions remain within the province of municipal law and do not affect the
position internationally.[58] (Emphasis supplied)
 The State, therefore, is the sole judge to decide whether its protection will
be granted, to what extent it is granted, and when will it cease. It retains, in this
respect, a discretionary power the exercise of which may be determined by
considerations of a political or other nature, unrelated to the particular case.

The International Law Commissions (ILCs) Draft Articles on Diplomatic

Protection fully support this traditional view. They (i) state that "the right of
diplomatic protection belongs to or vests in the State,[59] (ii) affirm its discretionary
nature by clarifying that diplomatic protection is a "sovereign prerogative" of the
State;[60] and (iii) stress that the state "has the right to exercise diplomatic
protection
on behalf of a national. It is under no duty or obligation to do so."[61]

It has been argued, as petitioners argue now, that the State has a duty to
protect its nationals and act on his/her behalf when rights are injured.[62] However,
at present, there is no sufficient evidence to establish a general international
obligation for States to exercise diplomatic protection of their own nationals
abroad.[63] Though, perhaps desirable, neither state practice nor opinio juris has
evolved in such a direction. If it is a duty internationally, it is only a moral and not
a legal duty, and there is no means of enforcing its fulfillment.[64]

We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international
law.[65] However, petitioners take quite a theoretical leap in claiming that these
proscriptions automatically imply that that the Philippines is under a
non-derogable obligation to prosecute international crimes, particularly since
petitioners do not demand the imputation of individual criminal liability, but seek
to recover monetary reparations from the state of Japan. Absent the consent of
states, an applicable treaty regime, or a directive by the Security Council, there is
no non-derogable duty to institute proceedings against Japan. Indeed, precisely
because of states reluctance to directly prosecute claims against another state,
recent developments support the modern trend to empower individuals to
directly participate in suits against perpetrators of international
crimes.[66]Nonetheless, notwithstanding an array of General Assembly resolutions
calling for the prosecution of crimes against humanity and the strong policy
arguments warranting such a rule, the practice of states does not yet support the
present existence of an obligation to prosecute international crimes.[67] Of course a
customary duty of prosecution is ideal, but we cannot find enough evidence to
reasonably assert its existence. To the extent that any state practice in this area is
widespread, it is in the practice of granting amnesties, immunity, selective
prosecution, orde facto impunity to those who commit crimes against humanity.[68]

Even the invocation of jus cogens norms and erga omnes obligations will not alter
this analysis. Even if we sidestep the question of whether jus cogens norms existed
in 1951, petitioners have not deigned to show that the crimes committed by the
Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was
signed, or that the duty to prosecute perpetrators of international crimes is an erga
omnes obligation or has attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been
used as a legal term describing obligations owed by States towards the community
of states as a whole. The concept was recognized by the ICJ
in Barcelona Traction:

x x x an essential distinction should be drawn between the obligations of a State

towards the international community as a whole, and those arising vis--vis
another State in the field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and
rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination. Some of the corresponding rights of protection
have entered into the body of general international law others are conferred by
international instruments of a universal or quasi-universal character.

The Latin phrase, erga omnes, has since become one of the rallying cries of those
sharing a belief in the emergence of a value-based international public order.
However, as is so often the case, the reality is neither so clear nor so bright.
Whatever the relevance of obligations erga omnes as a legal concept, its full
potential remains to be realized in practice.[69]
The term is closely connected with the international law concept of jus cogens. In
international law, the term jus cogens (literally, compelling law) refers to norms
that command peremptory authority, superseding conflicting treaties and
custom. Jus cogens norms are considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified only by general
international norms of equivalent authority.[70]

Early strains of the jus cogens doctrine have existed since the 1700s,[71] but
peremptory norms began to attract greater scholarly attention with the publication
of Alfred von Verdross's influential 1937 article, Forbidden Treaties in
International Law.[72] The recognition of jus cogens gained even more force in the
1950s and 1960s with the ILCs preparation of the Vienna Convention on the Law
of Treaties (VCLT).[73] Though there was a consensus that certain international
norms had attained the status of jus cogens,[74] the ILC was unable to reach a
consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC
concluded ruefully in 1963 that there is not as yet any generally accepted criterion
by which to identify a general rule of international law as having the character
of jus cogens.[75] In a commentary accompanying the draft convention, the ILC
indicated that the prudent course seems to be to x x x leave the full content of this
rule to be worked out in State practice and in the jurisprudence of international
tribunals.[76] Thus, while the existence of jus cogens in international law is
undisputed, no consensus exists on its substance,[77] beyond a tiny core of
principles and rules.[78]

Of course, we greatly sympathize with the cause of petitioners, and we

cannot begin to comprehend the unimaginable horror they underwent at the hands
of the Japanese soldiers. We are also deeply concerned that, in apparent
contravention of fundamental principles of law, the petitioners appear to be
without a remedy to challenge those that have offended them before appropriate
fora. Needless to say, our government should take the lead in protecting its citizens
against violation of their fundamental human rights. Regrettably, it is not within
our power toorder the Executive Department to take up the petitioners cause. Ours
is only the power to urge and exhort the Executive Department to take up
petitioners cause.
 WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE

Associate Justice CASTRO
Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

 Associate Justice Associate Justice

LUCAS P. BERSAMIN ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

CERTIFICATION

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

REYNATO S. PUNO
Chief Justice

[1]
In Re World War II Era Japanese Forced Labor Litigation, 114 F. Supp. 2d 939 (N.D. Cal. 2000).
[2]
U.N. Doc. E/CN.4/1996/53/Add.1 (January 4, 1996), Report of the Special Rapporteur on violence
against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with
Commission on Human Rights resolution 1994/45.
[3] Treaty and customary law both provide that when rape is committed as part of a widespread or
systematic attack directed at any civilian population, regardless of its international or internal character,
then it constitutes one of the gravest crimes against humanity. This principle is codified under Article
6(c) of the 1945 Nuremberg Charter as well as Article 5(c) of the Tokyo Charter, which enumerated
murder, extermination, enslavement, deportation, and other inhumane acts committed against any
civilian populations, before or during the war as crimes against humanity, and extended in scope to
include imprisonment, torture and rape by Control Council Law No. 10.
[4]
Article 1 of the Slavery Convention provides:
For the purpose of the present Convention, the following definitions are agreed upon:
(1) Slavery is the status or condition of a person over whom any or all of the powers attaching to the
right of ownership are exercised.
(2) The slave trade includes all acts involved in the capture, acquisition or disposal of a person with
intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling
or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to
being sold or exchanged, and, in general, every act of trade or transport in slaves.
Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926 (Slavery
Convention of 1926), 60 L.N.T.S. 253, entered into force March 9, 1927.
[5]
Torture is defined as any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person,
information or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or for any reason
based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other person acting in an official capacity. It
does not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions. (Convention Against Torture, Article 1.1)
[6]
Signed at San Francisco, September 8, 1951; Initial entry into force: April 28, 1952. The treaty
was signed
by Argentina, Australia, Belgium, Bolivia, Brazil, Cambodia, Canada, Chile, Colombia, Costa
Rica, Cuba, Czechoslovakia, Dominican Republic, Ecuador, Egypt, El
Salvador, Ethiopia, France, Greece, Guatemala, Haiti, Honduras, Indonesia, Iran, Iraq, Japan, Laos, Le
banon, Liberia, Luxembourg, Mexico, the Netherlands, New
Zealand, Nicaragua, Norway, Pakistan, Panama,Paraguay, Peru, The Philippines, Poland, Saudi Arabia,
the Soviet Union, Sri Lanka, South Africa,Syria, Turkey, the United Kingdom, the United
States, Uruguay, Venezuela, Vietnam. The signatories for the Republic of the Philippines were Carlos P.
Romulo, J.M. Elizalde, Vicente Francisco, Diosdado Macapagal, Emiliano Tirona, and V.G. Sinco.
[7]
Signed in San Francisco, September 8, 1951, ratified by the Philippine Senate on July 16, 1956. Signed
by the Philippine President on July 18, 1956. Entered into force on July 23, 1956.
[8]
On September 21, 1992, the Japanese Embassy formally confirmed to the Philippine government the
involvement of the Japanese Imperial Army in the establishment of comfort women stations.
In May 1993, Japan approved textbooks featuring an account of how comfort women were forced to
work as prostitutes for the Japanese Imperial Army.
On August 4, 1993, Japanese Prime Minister Miyazawa, before resigning, formally apologized to
women all over the world who were forced to serve as comfort women:
The Japanese government regrets and sincerely apologizes for the unbearable pain that
these women regardless of their nationalities, suffered while being forced to work as
so-called comfort women.
The Japanese government expresses its heartfelt sentiments of reflection and apology to
all the women for their many sufferings and the injuries to mind and body that cannot be
healed.
The Philippine government, under the administration of then President Fidel V. Ramos, accepted the
formal apology given the Japanese Government. Though the formal apology came late, it is a most
welcome gesture from the government ofJapan, which has been very supportive of our economic
development.
[9]
Richard J. Galvin, The Case for a Japanese Truth Commission Covering World War II Era Japanese
War Crimes, 11 TUL. J. INT'L & COMP. L. 59, 64 (2003).
[10] See Argibay, Ad Litem Judge, International Criminal Tribunal for the Former Yugoslavia, Speech at
the Stefan A. Riesenfeld Symposium: Sexual Slavery and the Comfort Women of World War II, in
21 BERKELEY J. INT'L L. 375, 376 (2003).
[11]
Id.
[12]
Nearey, Seeking Reparations in the New Milleunium: Will Japan Compensate the Comfort Women of
World War II?, 15 TEMP. INT'L & COMP. L.J. 121, 134 (2001).
[13]
USTINIA DOLGOPOL & SNEHAL PARANJAPE, COMFORT WOMEN: AN UNFINISHED
ORDEAL 15 (1994).
[14]
Id. at 48.
[15]
See Johnson, Comment, Justice for Comfort Women: Will the Alien Tort Claims Act Bring Them the
Remedies They Seek?, 20 PENN ST. INT'L L. REV. 253, 260 (2001).
[16]
Id. at 261. Soldiers disregarded rules mandating the use of condoms, and thus many women became
pregnant or infected with sexually transmitted diseases.
[17]
Boling, Mass Rape, Enforced Prostitution, and the Japanese Imperial Army: Japan Eschews
International Legal Responsibility? 3 OCCASIONAL PAPERS/REPRINT SERIES
CONTEMPORARY ASIAN STUDIES 8 (1995).
[18]
Id.
[19]
YAMAMOTO ET AL., RACE, RIGHTS AND REPARATION 435-38 (2001).
[20]
Meade, From Shanghai to Globocourt: An Analysis of the Comfort Women's Defeat in Hwang v. Japan,
35 VAND. J. TRANSNAT'L L. 211, 233 (2002).
[21]
Numerous lawsuits immediately followed, including lawsuits filed by the Korean Council for Women
Drafted for Sexual Slavery, and a suit by a Dutch former comfort woman; Fisher, Japan's Postwar
Compensation Litigation, 22 WHITTIER L. REV. 35, 44 (2000).
[22]
The lower court ruling in Ha v. Japan has been the lone courtroom victory for comfort women.
On December 25, 1992, ten Korean women filed the lawsuit with the Yamaguchi Prefectural Court,
seeking an official apology and compensation from the Japanese government. The plaintiffs claimed
that Japan had a moral duty to atone for its wartime crimes and a legal obligation to compensate them
under international and domestic laws. More than five years later, on April 27, 1998, the court found
the Japanese government guilty of negligence and ordered it to pay 300,000, or $2,270, to each of the
three plaintiffs. However, the court denied plaintiffs demands that the government issue an official
apology. Both parties appealed, but Japan's High Court later overturned the ruling. See Park, Broken
Silence: Redressing the Mass Rape and Sexual Enslavement of Asian Women by the Japanese
Government in an Appropriate Forum, 3 ASIAN-PAC. L. & POL'Y J. 40 (2002); Kim &
Kim, Delayed Justice: The Case of the Japanese Imperial Military Sex Slaves, 16
UCLA PAC. BASIN L.J. 263 (1998). Park, Comfort Women During WW II: Are U.S. Courts a Final
Resort for Justice?, 17 AM. U. INT'L L. REV. 403, 408 (2002).
[23]
Hwang Geum Joo v. Japan (Hwang I), 172 F. Supp. 2d 52 (D.D.C. 2001), affirmed, 332 F.3d 679 (D.C.
Cir. 2003), vacated, 542 U.S. 901 (2004), remanded to 413 F.3d 45 (D.C. Cir. 2005), cert. denied, 126
S. Ct. 1418 (2006).
[24]
Alien Tort Claims Act, 28 U.S.C. 1350 (2000). The ATCA gives US federal district courts original
jurisdiction to adjudicate civil cases and award tort damages for violations of the law of nations
or United States treaties. See Ahmed, TheShame of Hwang v. Japan: How the
International Community Has Failed Asia's Comfort Women, 14 TEX. J. WOMEN & L. 121, 141-42
(2004).
[25]
Under the ATCA, when a cause of action is brought against a sovereign nation, the only basis for
obtaining personal jurisdiction over the defendant is through an exception to the Foreign Sovereign
Immunities Act (FSIA). See Jeffords, Will Japan Face Its Past? The Struggle for Justice for Former
Comfort Women, 2 REGENT J. INT'L L. 145, 158 (2003/2004). The FSIA (28 U.S.C. 1604 (1994 &
Supp. 1999).) grants foreign states immunity from being sued in US district courts unless the state
waives its immunity or the claims fall within certain enumerated exceptions. The Japanese government
successfully argued that it is entitled to sovereign immunity under the FSIA. The government
additionally argued that post-war treaties had resolved the issue of reparations, which were
non-justiciable political questions.
[26]
See Hwang Geum Joo v. Japan (Hwang II), 332 F.3d 679, 680-81 (D.C. Cir. 2003), vacated, 542 U.S.
901 (2004), remanded to 413 F.3d 45 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1418 (2006).
[27] See Hwang Geum Joo v. Japan (Hwang III), 542 U.S. 901 (2004) (memorandum), remanded to 413
F.3d 45 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1418 (2006).
[28]
Id.
[29]
SOH, THE COMFORT WOMEN PROJECT, SAN
FRANCISCO STATE UNIVERSITY (1997-2001), http://online.sfsu.edu/~soh/comfortwomen.html, at
1234-35.
[30]
An Analysis Of The Legal Liability Of The Government Of Japan For Comfort Women Stations
Established During The Second World War (Appendix); REPORT ON CONTEMPORARY FORMS
OF SLAVERY: SYSTEMATIC RAPE, SEXUAL SLAVERY AND SLAVERY-LIKE PRACTICES
DURING ARMED CONFLICT, Final report submitted by Ms. Gay J. McDougall, Special Rapporteur,
Sub-Commission on Prevention of Discrimination and Protection of Minorities, Commission on
Human Rights (Fiftieth Session) E/CN.4/Sub.2/1998/13 (June 22, 1998).
[31]
Chinkin, Women's International Tribunal on Japanese Sexual Slavery, 95 AM. J. INT'L. L. 335
(2001).
[32]
A large amount of evidence was presented to the tribunal for examination. Sixty-four former comfort
women from Korea and other surrounding territories in the Asia-Pacific region testified before the
court. Testimony was also presented by historical scholars, international law scholars, and two former
Japanese soldiers. Additional evidence was submitted by the prosecution teams of ten different
countries, including: North and South Korea, China, Japan,
the Philippines,Indonesia, Taiwan, Malaysia, East Timor, and the Netherlands. Id. at 336.
[33]
Press Release, Congressman Mike Honda, Rep. Honda Calls on Japan to Apologize for World War II
Exploitation of Comfort Women (January 31, 2007).
[34]
H.R. Res. 121, 110th Cong. (2007) (enacted).
[35]
European Parliament, Human rights: Chad, Women's Rights in Saudi Arabia, Japan's Wartime Sex
Slaves, Dec. 17, 2007, http://
www.europarl.europa.eu/sides/getDoc.do?language=EN&type=IM-PRESS&reference=20071210BRI1
4639&secondRef=ITEM-008-EN.
[36]
The Comfort Women--A History of Trauma,
http:// taiwan.yam.org.tw/womenweb/conf_women/index_e.html.
[37]
YAMAMOTO ET AL., supra note 19 at 437. The government appointed Bunbei Hara, former Speaker
of the Upper House of the Diet, as the first President of the Asian Women's Fund (1995-1999). Former
Prime Minister Tomiichi Murayama succeeded Hara as the second president of the program
(1999-present). See Jeffords, supra note 25 at 158.
[38]
The Asian Women's Fund, http://www.awf.or.jp/english/project_ atonement.html, at 55.
[39]
369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
[40]
103 Phil 1051, 1068 (1957).
[41]
See Baker v. Carr, 369 U.S. at 211-222.
[42]
Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918).
[43]
Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
[44]
CONSTITUTION, Art. VIII, Sec. 5(2)(a).
[45]
299 US 304, 57 S. Ct. 216, 81 L. Ed, 255 (1936).
[46]
396 Phil 623, 663 (2000). We held:
By constitutional fiat and by the intrinsic nature of his office, the President, as head of
State, is the sole organ and authority in the external affairs of the country. In many ways,
the President is the chief architect of the nation's foreign policy; his "dominance in the
field of foreign relations is (then) conceded." Wielding vast powers and influence, his
conduct in the external affairs of the nation, as Jefferson describes, is "executive
altogether".
[47]
501 Phil. 304, 313 (2005). We stated:
In our system of government, the President, being the head of state, is regarded as the
sole organ and authority in external relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the business of
 foreign relations. In the realm of treaty-making, the President has the sole authority to
negotiate with other states.
[48]
379 Phil. 165, 233-234 (2004).
[49]
HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 300 (2d 1996); see Dames and Moore v.
Regan, 453 U.S. 654, 688, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981) (upholding the President's authority
to settle claims of citizens as "a necessary incident to the resolution of a major foreign policy dispute
between our country and another [at least] where ... Congress acquiesced in the President's
action"); Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 424, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003)
(acknowledging "President's authority to provide for settling claims in winding up international
hostilities"). See also Akbayan Citizens Action Party (AKBAYAN) v. Aquino, G.R. No. 170516, July 16,
2008, 558 SCRA 468, 517 where we held that:
x x x While, on first impression, it appears wise to deter Philippine representatives from
entering into compromises, it bears noting that treaty negotiations, or any negotiation for
that matter, normally involve a process of quid pro quo, and oftentimes negotiators have
to be willing to grant concessions in an area of lesser importance in order to obtain more
favorable terms in an area of greater national interest.
[50]
3 U.S. (3 Dall.) 199, 230, 1 L.Ed. 568 (1796).
[51]
453 U.S. 654, 101 S.Ct. 2972 (1981) (re the establishment of the Iran-United States Claims Tribunal
following the seizure of American personnel as hostages at the American Embassy in Tehran).
[52]
Bazyler, The Holocaust Restitution Movement in Comparative Perspective, 20 BERKELEY J. INTL. L.
11, 25-32 (2002).
[53]
In Re World War II Era Japanese Forced Labor Litigation, supra note 1.
[54]
Treaty of Peace with Japan 1951, 136 UNTS 45.
[55]
The conceptual understanding that individuals have rights and responsibilities in the international arena
does not automatically mean that they have the ability to bring international claims to assert their rights.
Thus, the Permanent Court of International Justice declared that it is scarcely necessary to point out
that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights
oneself. Appeal from a Judgment of the Hungaro/Czeochoslovak Mixed Arbitral Tribunal, Judgment,
1933, PCIJ, Ser. A/B No. 61, p. 208 at 231.
[56]
PCIJ, Ser. A, No. 2, p. 11, at 16. This traditional view was repeated by the PCIJ in
the Panevezys-Saldutiskis Railway Case, the Case Concerning the Payment of Various Serbian Loans
issued in France, Judgment of July 12, 1929, PCIJ Reports, Series A No. 20; and in the Case
Concerning the Factory at Chorzow, Judgment of September 13, 1928, Merits, PCIJ Reports, Series A
No. 17. The ICJ has adopted it in the Reparation for injuries suffered in the service of the United
NationsAdvisory Opinion: ICJ Reports 1949, p. 174; the Nottebohm Case (second phase) Judgment of
April 6, 1955: ICJ Reports 1955, p. 4 at p. 24; the Interhandel Case (Judgment of March 21st, 1959:
ICJ Reports 1959, p. 6 at p. 27) and theBarcelona Traction, Light and Power Company,
Limited case, (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5).
[57]
See BORCHARD, E., DIPLOMATIC PROTECTION OF CITIZENS ABROAD AT VI (1915). Under
this view, the considerations underlying the decision to exercise or not diplomatic protection may vary
depending on each case and may rely entirely on policy considerations regardless of the interests of the
directly-injured individual, and the State is not required to provide justification for its decision.
[58]
Barcelona Traction, Light and Power Company, Limited, case, supra note 56, at p. 44 par. 78.
[59]
ILC First Reading Draft Articles on Diplomatic Protection, U.N. Doc. A/CN.4/484, ILC
Report, A/53/10 (F), par. 60, Commentary to Draft Article 2, par. (1); see also, Commentary to Draft
Article 1, par. (3), and text of Draft Article 2.
[60]
Report of the International Law Commission on the work of its 50th session, supra note 60, par. 77.
[61]
ILC First Reading Draft Articles on Diplomatic Protection, supra note 60, commentary to Draft Article
2, par. (2).
[62]
For instance, Special Rapporteur Dugard proposed that the ILC adopt in its Draft Articles a provision
under which States would be internationally obliged to exercise diplomatic protection in favor of their
nationals injured abroad by grave breaches to jus cogens norms, if the national so requested and if
he/she was not afforded direct access to an international tribunal. The proposed article reads as follows:
Article [4]1. Unless the injured person is able to bring a claim for such injury before a
competent international court or tribunal, the State of his/her nationality has a legal duty
to exercise diplomatic protection on behalf of the injured person upon request, if the
 injury results from a grave breach of a jus cogens norm attributable to another State. 2.
The state of nationality is relieved of this obligation if: (a) The exercise of diplomatic
protection would seriously endanger the overriding interests of the State and/or its people;
(b) Another State exercises diplomatic protection on behalf of the injured person; (c) The
injured person does not have the effective and dominant nationality of the State. States
are obliged to provide in their municipal law for the enforcement of this right before a
competent domestic court or other independent national authority". Special Rapporteur
John Dugard, appointed in 1999, First Report on Diplomatic Protection, par. 74 (UN Doc.
A/CN.4/506 (March 7, 2000) and Corr. 1 (June 7, 2000) and Add. 1 (April 20, 2000).
However, the proposal was not accepted by the ILC, as "the question was still not ripe for
treatment" because "the State practice and their opinio juris still had not evolved in such
direction". Official Records of the General Assembly: 55th session, Supplement No. 10, Doc. A/55/10
(2000), Report of the ILC on the work of its 52nd session, p. 131. Instead, Draft Article 19, entitled
Recommended Practice, suggests that states should be encouraged to exercise diplomatic protection
especially when significant injury occurred to the national. Drafted in soft language, the Article does
not purport to create any binding obligations on the state.
In addition, some States have incorporated in their municipal law a duty to exercise diplomatic
protection in favor of their nationals. (Dugard identifies this "obligation" to exist in the Constitutions of
Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia,
Guyana, Hungary, Italy, Kazakhstan, Lao Peoples Democratic Republic, Latvia, Lithuania, Poland,
Portugal, Republic of Korea, Romania, Russian Federation, Spain, the former Yugoslav Republic of
Macedonia, Turkey, Ukraine, Viet Nam and Yugoslavia, albeit with different reaches. J. Dugard, First
Report on diplomatic protection, supra note 13, par. 80), but their enforceability is also, to say the least,
questionable (in many cases there are not even courts competent to review the decision). Moreover,
their existence in no way implies that international law imposes such an obligation, simply suggesting
"that certain States consider diplomatic protection for their nationals abroad to be desirable" (ILC First
Reading Draft Articles on Diplomatic Protection, supra note 60, Commentary to Draft Article 2, par
(2)).
[63]
Even decisions of national courts support the thesis that general international law as it stands does not
mandate an enforceable legal duty of diplomatic protection.
The traditional view has been challenged in the UK in a case arising from the unlawful detention by
the US of prisoners in Guantanamo Bay. In Abbasi v. Secretary of State for Foreign and
Commonwealth Affairs ([2002] EWCA Civ 1316, 19 September 2002), the applicant (a British national)
sought judicial review of the adequacy of the diplomatic actions of the British government with
the US government. The UK Court of Appeals came to the conclusion that diplomatic protection did
not as such give rise to an enforceable duty under English Law. It found that on no view would it be
appropriate to order the Secretary of State to make any specific representations to the United States,
even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that
this would have an impact on the conduct of foreign policy.
Courts in the UK have also repeatedly held that the decisions taken by the executive in its dealings
with foreign states regarding the protection of British nationals abroad are non-justiciable.
(1) R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai (107 ILR 462
(1985):
"x x x in the context of a situation with serious implications for the conduct of
international relations, the courts should act with a high degree of circumspection in the
interests of all concerned. It can rarely, if ever, be for judges to intervene where diplomats
fear to tread." (p.479, per Sir John Donaldson MR)
(2) R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Ferhut Butt (116 ILR
607 (1999):
"The general rule is well established that the courts should not interfere in the conduct of
foreign relations by the Executive, most particularly where such interference is likely to
have foreign policy repercussions (see R. v.Secretary of State for Foreign and
Commonwealth Affairs, ex parte Everett [1989] 1 QB 811 at 820). This extends to
decisions whether or not to seek to persuade a foreign government of any international
obligation (e.g. to respect human rights) which it has assumed. What if any approach
should be made to the Yemeni authorities in regard to the conduct of the trial of these
 terrorist charges must be a matter for delicate diplomacy and the considered and informed
judgment of the FCO. In such matters the courts have no supervisory role." (p. 615, per
Lightman J).
"Whether and when to seek to interfere or to put pressure on in relation to the legal
process, if ever it is a sensible and a right thing to do, must be a matter for the Executive
and no one else, with their access to information and to local knowledge. It is clearly not
a matter for the courts. It is clearly a high policy decision of a government in relation to
its foreign relations and is not justiciable by way of judicial review." (p.622, per Henry
LJ).
(3) R. (Suresh and Manickavasagam) v. Secretary of State for the Home Department [2001]
EWHC Admin 1028 (unreported, 16 November 2001):
"... there is, in my judgment, no duty upon the Secretary of State to ensure that other
nations comply with their human rights obligations. There may be cases where the United
Kingdom Government has, for example by diplomatic means, chosen to seek to persuade
another State to take a certain course in its treatment of British nationals; but there is
no duty to do so." (paragraph 19, per Sir Richard Tucker).
The South African Constitutional Court in Kaunda and others v. President of the Republic of South Africa
and others (Case CCCT23/04) recognized the constitutional basis of the right of diplomatic protection
as enshrined in the South African Constitution, but went on to hold that the nature and extent of this
obligation was an aspect of foreign policy within the discretion of the executive.
[64]
BORCHARD, E., DIPLOMATIC PROTECTION OF CITIZENS ABROAD, 29 (1915).
[65]
The concept of rape as an international crime is relatively new. This is not to say that rape has never
been historically prohibited, particularly in war. But modern-day sensitivity to the crime of rape did not
emerge until after World War II. In the Nuremberg Charter, the word rape was not mentioned. The
article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by
name. (For example, the Treaty of Amity and Commerce between Prussia and theUnited
States provides that in time of war all women and children shall not be molested in their persons. The
Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of
America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT'L AGREEMENTS OF
THE U.S. 78, 85. The 1863 Lieber Instructions classified rape as a crime of troop discipline.
(Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens:
Clarifying the Doctrine, 15 DUKE J. COMP. INTL. L. 219, 224). It specified rape as a capital crime
punishable by the death penalty (Id. at 236). The 1907 Hague Convention protected women by
requiring the protection of their honour. (Family honour and rights, the lives of persons, and private
property, as well as religious convictions and practice, must be respected. Convention (IV) Respecting
the Laws & Customs of War on Land, art. 46, Oct. 18, 1907. General Assembly resolution 95 (I) of
December 11, 1946 entitled, Affirmation of the Principles of International Law recognized by the
Charter of the Nrnberg Tribunal; General Assembly document A/64/Add.1 of 1946; See Agreement for
the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59
Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter established crimes against humanity as the
following:
CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian population, before or
during the war, or persecutions on political, racial or religious grounds in execution of or
in connection with any crime within the Jurisdiction of the Tribunal, whether or not in
violation of the domestic law of the country where perpetrated.
The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted. (Judge
Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the
International Arena,7 ILSA J. INTL. COMP. L. 667, 676.) However, International Military Tribunal
for the Far East prosecuted rape crimes, even though its Statute did not explicitly criminalize rape. The
Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota
criminally responsible for a series of crimes, including rape, committed by persons under their
authority. (THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY
TRIBUNAL FOR THE FAR EAST445-54 (1977).
The first mention of rape as a specific crime came in December 1945 when Control Council Law
No. 10 included the term rape in the definition of crimes against humanity. Law No. 10, adopted by the
 four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war
criminals in German courts. (Control Council for Germany, Law No. 10: Punishment of Persons Guilty
of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette
Control Council for Germany 50, 53 (1946))
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first
modern-day international instrument to establish protections against rape for women. Geneva
Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6
U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter Fourth Geneva
Convention].Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda
(ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a
war crime, and a crime against humanity.
Rape is clearly emerging as a core crime within humanitarian law. (APPLEMAN, MILITARY
TRIBUNALS AND INTERNATIONAL CRIMES 299 (1954); MERON, HUMAN RIGHTS AND
HUMANITARIAN NORMS AS CUSTOMARY LAW 47 (1989). A major step in this legal
development came in 1949, when rape and sexual assault were included in the Geneva Conventions.
Rape is included in the following acts committed against persons protected by the 1949 Geneva
Conventions: willful killing, torture or inhuman treatment, including biological experiments; willfully
causing great suffering or serious injury to body or health. Rape as a violation of the laws or customs of
war generally consists of violations of Article 3 of the 1949 Geneva Conventions, which, in part,
prohibits violence to life and person, in particular mutilation, cruel treatment and torture; outrages upon
personal dignity, in particular humiliating and degrading treatment. (See Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3(1)(c), 75
U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, art. 3(1)(c), 75 U.N.T.S. 85; Geneva Convention
Relative to the Treatment of Prisoners of War, art. 3(1)(c), 75 U.N.T.S. 973; Fourth Geneva
Convention, supra note 23, art. 3(1)(c).
Article 27 of the Fourth Geneva Convention, directed at protecting civilians during time of war, states
that women shall be especially protected against any attack on their honour, in particular against rape,
enforced prostitution, or any form of indecent assault.
Protocol I of the Geneva Conventions continues to expand the protected rights by providing that
women shall be the object of special respect and shall be protected in particular against rape, forced
prostitution and any form of indecent assault. (Protocol Additional to the Geneva Conventions
of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts
(Protocol I), Article 76(1), 1125 U.N.T.S. 4).
[66]
For instance, the International Criminal Court was established to deal with the most serious crimes of
concern to the international community, with jurisdiction over genocide, crimes against humanity, and
war crimes, as defined in the Rome Statute. The ICC Prosecutor can investigate allegations of crimes
not only upon referral from the Security Council and state parties, but also on information from victims,
non-governmental organizations or any other reliable source (Article 15). See also the Statute of the
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N.
Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on 25 May
1993, U.N. Doc. S/RES/827 (1993).
[67]
Scharf, The Letter of the Law: The Scope of the International Legal Obligation To Prosecute Human
Rights Crimes, 59(4) LAW & CONTEMP. PROBS. 41, 59 (1996). Dugard, Dealing with Crimes of a
Past Regime: Is Amnesty Still an Option?, 12 LEIDEN J. INT'L L. 1001, 1003 (1999).
Gavron, Amnesties in Light of Developments in International Law and the Establishment of the
International Criminal Court, 51 INT'L & COMP. L.Q. 91, 106 (2002).
[68]
O'SHEA, AMNESTY FOR CRIME IN INTERNATIONAL LAW AND PRACTICE 35 (2002).
[69]
Bruno Simmas much-quoted observation encapsulates this feeling of disappointment:Viewed
realistically, the world of obligations erga omnes is still the world of the ought rather than of the isTHE
CHARTER OF THE UNITED NATIONS: A COMMENTARY 125 (Simma, ed. 1995). See Tams,
Enforcing Obligations Erga omnes in International Law (2005). In all cases where this principle has
been cited, even the ICJ has found a way to avoid giving force to the claims based on the erga
omnes character of the obligation, despite having recognized them in principle. In the South West
Africa Case, the ICJ declared that an action popularis was incompatible with existing international law.
 In the Nicaragua case, it evaded the consequences of a violation of erga omnes obligations by treating
human rights conventions as self-contained regimes. Nicaragua v. US, Merits, ICJ Reports 1986, 14 et
seq. (134, par. 267): However, where human rights are protected by international conventions, that
protection takes the form of such arrangements for monitoring or ensuring respect for human rights as
are provided for in the conventions themselves. In the East Timor Case, it denied jurisdiction on the
ground that Indonesia was an indispensable third party to the proceedings which had not accepted
jurisdiction. (Portugal v. Australia, ICJ Reports 1995, 90 (102, par 29) Portugals assertion that the right
of peoples to self-determination has an erga omnes character, is irreproachable.
[70]
See Vienna Convention on the Law of Treaties art. 53, opened for signature May 23, 1969, 1155
U.N.T.S. 331, 8 I.L.M. 679 [hereinafter VCLT].
[71]
Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman
law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to
differentiate consensual agreements between states from the necessary principles of international law
that bind all states as a point of conscience regardless of consent. (See Hugonis Grotii, De Jure Belli et
Pacis [On the Law of War and Peace] (William Whewell ed. & trans., John W. Parker, London 2009)
(1625); Emer de Vattel, Le Droit des Gens ou Principes de la Loi Naturelle [The Law of Nations or
Principles of Natural Law] 9, 27 (1758) (distinguishing le Droit des Gens Naturel, ou Ncessaire from le
Droit Volontaire); Christian Wolff, Jus Gentium Methodo Scientifica Pertractorum [A Scientific
Method for Understanding the Law of Nations] 5 (James Brown Scott ed., Joseph H. Drake trans.,
Clarendon Press 1934) (1764)). Early twentieth-century publicists such as Lassa Oppenheim and
William Hall asserted that states could not abrogate certain universally recognized principles by mutual
agreement. (William Hall, A Treatise on International Law 382-83 (8th ed. 1924) (asserting that
fundamental principles of international law may invalidate [], or at least render voidable, conflicting
international agreements); 1 Lassa Oppenheim, International Law 528 (1905).) Judges on the
Permanent Court of International Justice affirmed the existence of peremptory norms in international
law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual
concurring and dissenting opinions. (For example, in the 1934 Oscar Chinn Case, Judge Schcking's
influential dissent stated that neither an international court nor an arbitral tribunal should apply a treaty
provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at
149-50 (Dec. 12) (Schcking, J., dissenting).
[72]
Verdross argued that certain discrete rules of international custom had come to be recognized as having
a compulsory character notwithstanding contrary state agreements. At first, Verdross's vision of
international jus cogens encountered skepticism within the legal academy. These voices of resistance
soon found themselves in the minority, however, as the jus cogens concept gained enhanced
recognition and credibility following the Second World War. (See Lauri Hannikainen, Peremptory
Norms (Jus cogens) in International Law: Historical Development, Criteria, Present Status 150 (1988)
(surveying legal scholarship during the period 1945-69 and reporting that about eighty per cent [of
scholars] held the opinion that there are peremptory norms existing in international law).
[73]
In March 1953, the ILC's Special Rapporteur, Sir Hersch Lauterpacht, submitted for the ILC's
consideration a partial draft convention on treaties which stated that [a] treaty, or any of its provisions,
is void if its performance involves an act which is illegal under international law and if it is declared so
to be by the International Court of Justice. Hersch Lauterpacht, Law of Treaties: Report by Special
Rapporteur, [1953] 2 Y.B. Int'l L. Comm'n 90, 93, U.N. Doc. A/CN.4/63.
[74]
See Summary Records of the 877th Meeting, [1966] 1 Y.B. Int'l L. Comm'n 227, 230-231, U.N. Doc.
A/CN.4/188 (noting that the emergence of a rule of jus cogens banning aggressive war as an
international crime was evidence that international law contains minimum requirement[s] for
safeguarding the existence of the international community).
[75]
Second Report on the Law of Treaties, [1963] 2 Y.B. Int'l L. Comm'n 1, 52, U.N. Doc. A/CN.4/156.
[76]
Id. at 53.
[77]
While the ICJ recently endorsed the jus cogens concept for the first time in its 2006 Judgment
on Preliminary Objections in Armed Activities on the Territory of the Congo (Congo v. Rwanda), it
declined to clarify jus cogens's legal status or to specify any criteria for identifying peremptory
norms. (Armed Activities on the Territory of the Congo, Jurisdiction of the Court and Admissibility of
the Application (Dem. Rep. Congo v. Rwanda) (Judgment of February 3, 2006), at 31-32, available at
http://www.icj-cij.org/docket/files/126/10435.pdf.
 In some municipal cases, courts have declined to recognize international norms as peremptory
while expressing doubt about the proper criteria for identifying jus cogens. (See, e.g., Sampson v.
Federal Republic of Germany, 250 F.3d 1145, 1149 (7th Cir. 2001) (expressing concern that jus
cogens should be invoked [o]nly as a last resort)).
In other cases, national courts have accepted international norms as peremptory, but have hesitated
to enforce these norms for fear that they might thereby compromise state sovereignty. (See, e.g.,
Bouzari v. Iran, [2004] 71 O.R.3d 675 (Can.) (holding that the prohibition against torture does not
entail a right to a civil remedy enforceable in a foreign court)).
In Congo v. Rwanda, for example, Judge ad hoc John Dugard observed that the ICJ had refrained
from invoking the jus cogens concept in several previous cases where peremptory norms manifestly
clashed with other principles of general international law. (See Armed Activities on the Territory of
the Congo (Dem. Rep. Congo v. Rwanda) (Judgment of February 3, 2006), at 2 (Dissenting Opinion of
Judge Dugard))
Similarly, the European Court of Human Rights has addressed jus cogens only once, in Al-Adsani
v. United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a
state of sovereign immunity. Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, 61).
[78]
SZTUCKI, JUS COGENS AND THE VIENNA CONVENTION ON THE LAW OF
TREATIES 119-123 (1974).