G.R. No.

183533 September 25, 2012

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT OF HABEAS DATA
IN FAVOR OF FRANCIS SAEZ, Petitioner,
vs.
GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON,
22ND MICO, CAPT. LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT.
JAKE OBLIGADO, CPL. ROMAN ITO QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA, A
CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC.
SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL, RODERICK CLANZA and JEFFREY
GOMEZ, Respondents.

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

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

Antecedent Facts

On March 6, 2008, the petitioner filed with the Court a petition to be granted the privilege of the writs of
amparo and habeas data with prayers for temporary protection order, inspection of place and production of
documents.5 In the petition, he expressed his fear of being abducted and killed; hence, he sought that he be
placed in a sanctuary appointed by the Court. He likewise prayed for the military to cease from further
conducting surveillance and monitoring of his activities and for his name to be excluded from the order of
battle and other government records connecting him to the Communist Party of the Philippines (CPP).

Without necessarily giving due course to the petition, the Court issued the writ of amparo commanding the
respondents to make a verified return, and referred the case to the Court of Appeals (CA) for hearing and
decision.The case before the CA was docketed as CA-G.R. SP No. 00024 WOA.

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

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

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

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

CA-G.R. SP No. 00024 WOA

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

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

xxxx

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

xxxx

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

xxxx

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

xxxx

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

"Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued
in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade
the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations
while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance
or distraction to enable him to fully attend to the performance of his official duties and functions. x x x."

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

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

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

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

WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF DISCRETION WHEN IT FAILED TO

CONCLUDE FROM THE EVIDENCE OFFERED BY THE PETITIONER THE FACT THAT BY BEING
PLACED IN THE ORDER OF BATTLE LIST, THREATS AND VIOLATIONS TO THE LATTER’S LIFE,
LIBERTY AND SECURITY WERE ACTUALLY COMMITTED BY THE RESPONDENTS.9

Court’s Resolution dated August 31, 2010

On August 31, 2010, the Court issued the Resolution10 denying the petition for review for the following
reasons, viz:

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

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

As to petitioner’s argument that the CA erred in deleting the President as party-respondent, we find the
same also to be without merit. The Court has already made it clear in David v. Macapagal-Arroyo that the
President, during his or her tenure of office or actual incumbency, may not be sued in any civil or criminal
case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high
office of the President, the Head of State, if the President can be dragged into court litigations while serving
as such. Furthermore, it is important that the President be freed from any form of harassment, hindrance or
distraction to enable the President to fully attend to the performance of official duties and
functions.11 (Citation omitted)

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

Petitioner’s Arguments

Contrary to the CA’s findings, it had been shown by substantial evidence and even by the respondents’ own
admissions that the petitioner’s life, liberty and security were threatened. Military personnel, whom the
petitioner had named and described, knew where to get him and they can do so with ease. He also became
a military asset, but under duress, as the respondents had documents allegedly linking him to the CPP and
including him in the order of battle. The petitioner claims that the foregoing circumstances were not denied
by the respondents.

The petitioner likewise challenges the CA’s finding that he was not rendered incommunicado as he was
even provided with a cellular phone. The petitioner argues that the phone was only given to him for the
purpose of communicating with the respondents matters relative to his infiltration activities of target legal
organizations.

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

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

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

OSG’s Comment

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

The Court’s Disquisition

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

The petition conforms to the

requirements of the Rules on the
Writs of Amparo and Habeas Data

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

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

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

No substantial evidence exists to

prove the petitioner’s claims

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

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

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

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

It must be stressed, however, that such "threat" must find rational basis on the surrounding circumstances of
the case. In this case, the petition was mainly anchored on the alleged threats against his life, liberty and
security by reason of his inclusion in the military’s order of battle, the surveillance and monitoring activities
made on him, and the intimidation exerted upon him to compel him to be a military asset. While as stated
earlier, mere threats fall within the mantle of protection of the writs of amparo and habeas data, in the
petitioner’s case, the restraints and threats allegedly made allegations lack corroborations, are not
supported by independent and credible evidence, and thus stand on nebulous grounds.

The Court is cognizant of the evidentiary difficulties attendant to a petition for the issuance of the writs.
Unlike, however, the unique nature of cases involving enforced disappearances or extra-judicial killings that
calls for flexibility in considering the gamut of evidence presented by the parties, this case sets a different
scenario and a significant portion of the petitioner’s testimony could have been easily corroborated. In his
Sinumpaang Salaysay22dated March 5, 2008 and the Fact Sheet dated December 9, 200723 executed before
the Alliance for the Advancement of People’s Rights-Southern Tagalog (KARAPATAN-ST), the petitioner
stated that when he was invited and interrogated at the military camp in Naujan, Oriental Mindoro, he
brought with him his uncle Norberto Roxas, Barangay Captain Mario Ilagan and two of his bodyguards, and
Edwardo Estabillo – five witnesses who can attest and easily corroborate his statement – but curiously, the
petitioner did not present any piece of evidence, whether documentary or testimonial, to buttress such claim
nor did he give any reason for their non-presentation.This could have made a difference in light of the
denials made by the respondents as regards the petitioner’s claims.

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

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

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

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

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

The President cannot be

automatically dropped as a
respondent pursuant to the doctrine
of command responsibility

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

a. Command responsibility of the President

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

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

a. the existence of a superior-subordinate relationship between the accused as superior and the
perpetrator of the crime as his subordinate;

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

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

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

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

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

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

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

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

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

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

Compliance with technical rules of

procedure is ideal but it cannot be
accorded primacy

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

To conclude, compliance with technical rules of procedure is ideal but it cannot be accorded primacy. In the
proceedings before the CA, the petitioner himself testified to prove the veracity of his allegations which he
stated in the petition. Hence, the defect in the verification attached to the petition. Hence, the defect in the
verification attached to the petition was deemed cured.

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

SO ORDERED.

G.R. No. 163193 June 15, 2004

SIXTO S. BRILLANTES, JR., petitioner,

JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ-TAN,
FRANKLIN M. DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. GUTIERREZ,
ISLETA, AND JOSE A. BERNAS, Petitioners-in-Intervention,
vs.
COMMISSION ON ELECTIONS, respondent.

DECISION

CALLEJO, SR., J.:

Before us is the petition for certiorari and prohibition under Rule 65 of the Rules of Court filed by Atty. Sixto
S. Brillantes, Jr., a voter and taxpayer, seeking to nullify, for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction, Resolution No. 6712 dated April 28, 2004 approved by
the Commission on Elections

(COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE ELECTRONIC TRANSMISSION

AND CONSOLIDATION OF ADVANCED RESULTS IN THE MAY 10, 2004 ELECTIONS.1 The petitioner,
likewise, prays for the issuance of a temporary restraining order and, after due proceedings, a writ of
prohibition to permanently enjoin the respondent COMELEC from enforcing and implementing the
questioned resolution.

After due deliberation, the Court resolved to require the respondent to comment on the petition and to
require the parties to observe the status quo prevailing before the issuance by the COMELEC of the
assailed resolution. The parties were heard on oral arguments on May 8, 2004. The respondent COMELEC
was allowed during the hearing to make a presentation of the Electronic Transmission, Consolidation and
Dissemination (PHASE III) program of the COMELEC, through Mr. Renato V. Lim of the Philippine Multi-
Media System, Inc. (PMSI).

The Court, thereafter, resolved to maintain the status quo order issued on May 6, 2004 and expanded it to
cover any and all other issuances related to the implementation of the so-called election quick count project.
In compliance with the resolution of the Court, the respondent, the petitioner and the petitioners-in-
intervention submitted the documents required of them.

The Antecedents

On December 22, 1997, Congress enacted Republic Act No. 84362 authorizing the COMELEC to use an
automated election system (AES) for the process of voting, counting of votes and canvassing/consolidating
the results of the national and local elections. It also mandated the COMELEC to acquire automated
counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms
and printing materials.

The COMELEC initially intended to implement the automation during the May 11, 1998 presidential
elections, particularly in the Autonomous Region in Muslim Mindanao (ARMM). The failure of the machines
to read correctly some automated ballots, however, deferred its implementation.3

In the May 2001 elections, the counting and canvassing of votes for both national and local positions were
also done manually, as no additional ACMs had been acquired for that electoral exercise because of time
constraints.

On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170, a modernization program for
the 2004 elections consisting of three (3) phases, to wit:

(1) PHASE I – Computerized system of registration and voters validation or the so-called
"biometrics" system of registration;

(2) PHASE II – Computerized voting and counting of votes; and

(3) PHASE III – Electronic transmission of results.

It resolved to conduct biddings for the three phases.

On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172,4 which allocated
the sum of ₱2,500,000,000 to exclusively fund the AES in time for the May 10, 2004 elections.

On January 28, 2003, the COMELEC issued an Invitation to Bid5 for the procurement of supplies,
equipment, materials and services needed for the complete implementation of all three phases of the AES
with an approved budget of ₱2,500,000,000.

On February 10, 2003, upon the request of the COMELEC, President Gloria Macapagal-Arroyo issued
Executive Order No. 175,6 authorizing the release of a supplemental ₱500 million budget for the AES project
of the COMELEC. The said issuance, likewise, instructed the Department of Budget and Management
(DBM) to ensure that the aforementioned additional amount be used exclusively for the AES prescribed
under Rep. Act No. 8436, particularly "the process of voting, counting of votes and canvassing/consolidation
of results of the national and local elections."7

On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding the contract for Phase II of
the AES to Mega Pacific Consortium and correspondingly entered into a contract with the latter to implement
the project. On the same day, the COMELEC entered into a separate contract with Philippine Multi-Media
System, Inc. (PMSI) denominated "ELECTRONIC TRANSMISSION, CONSOLIDATION & DISSEMINATION
OF ELECTION RESULTS PROJECT CONTRACT.8 The contract, by its very terms, pertains to Phase III of
the respondent COMELEC’s AES modernization program. It was predicated on a previous bid award of the
contract, for the lease of 1,900 units of satellite-based Very Small Aperture Terminals (VSAT) each unit
consisting of an indoor and outdoor equipment, to PMSI for possessing the legal, financial and technical
expertise necessary to meet the project’s objectives. The COMELEC bound and obliged itself to pay PMSI
the sum of ₱298,375,808.90 as rentals for the leased equipment and for its services.

In the meantime, the Information Technology Foundation of the Philippines (ITFP), filed a petition for
certiorari and prohibition in this Court for the nullification of Resolution No. 6074 approving the contract for
Phase II of AES to Mega Pacific Consortium, entitled and docketed as Information Technology Foundation
of the Philippines, et al. vs. COMELEC, et al., G.R. No. 159139. While the case was pending in this Court,
the COMELEC paid the contract fee to the PMSI in trenches.

On January 13, 2004, this Court promulgated its Decision nullifying COMELEC Resolution No. 6074
awarding the contract for Phase II of the AES to Mega Pacific Consortium. Also voided was the subsequent
contract entered into by the respondent COMELEC with Mega Pacific Consortium for the purchase of
computerized voting/counting machines for the purpose of implementing the second phase of the
modernization program. Phase II of the AES was, therefore, scrapped based on the said Decision of the
Court and the COMELEC had to maintain the old manual voting and counting system for the May 10, 2004
elections.

On the other hand, the validation scheme under Phase I of the AES apparently encountered problems in its
implementation, as evinced by the COMELEC’s pronouncements prior to the elections that it was reverting
to the old listing of voters. Despite the scrapping of Phase II of the AES, the COMELEC nevertheless
ventured to implement Phase III of the AES through an electronic transmission of advanced "unofficial"
results of the 2004 elections for national, provincial and municipal positions, also dubbed as an "unofficial
quick count."

Senate President Franklin Drilon had misgivings and misapprehensions about the constitutionality of the
proposed electronic transmission of results for the positions of President and Vice-President, and apprised
COMELEC Chairman Benjamin Abalos of his position during their meeting on January 28, 2004. He also
wrote Chairman Abalos on February 2, 2004. The letter reads:

Dear Chairman Abalos,

This is to confirm my opinion which I relayed to you during our meeting on January 28th that the
Commission on Elections cannot and should not conduct a "quick count" on the results of the
elections for the positions of President and Vice-President.

Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and exclusive
authority to canvass the votes for President and Vice-President. Thus, any quick count to be
conducted by the Commission on said positions would in effect constitute a canvass of the votes of
the President and Vice-President, which not only would be pre-emptive of the authority of the
Congress, but also would be lacking of any Constitutional authority. You conceded the validity of the
position we have taken on this point.

In view of the foregoing, we asked the COMELEC during that meeting to reconsider its plan to
include the votes for President and Vice-President in the "quick count", to which you graciously
consented. Thank you very much.9

The COMELEC approved a Resolution on February 10, 2004 referring the letter of the Senate President to
the members of the COMELEC and its Law Department for study and recommendation. Aside from the
concerns of the Senate President, the COMELEC had to contend with the primal problem of sourcing the
money for the implementation of the project since the money allocated by the Office of the President for the
AES had already been spent for the acquisition of the equipment. All these developments notwithstanding,
and despite the explicit specification in the project contract for Phase III that the same was functionally
intended to be an interface of Phases I and II of the AES modernization program, the COMELEC was
determined to carry out Phase III of the AES. On April 6, 2004, the COMELEC, in coordination with the
project contractor PMSI, conducted a field test of the electronic transmission of election results.
On April 27, 2004, the COMELEC met en banc to update itself on and resolve whether to proceed with its
implementation of Phase III of the AES.10 During the said meeting, COMELEC Commissioner Florentino
Tuason, Jr. requested his fellow Commissioners that "whatever is said here should be confined within the
four walls of this room and the minutes so that walang masyadong problema.11 Commissioner Tuason, Jr.
stated that he had no objection as to the Phase III of the modernization project itself, but had concerns about
the budget. He opined that other funds of the COMELEC may not be proper for realignment. Commissioners
Resurreccion Z. Borra and Virgilio Garcillano also expressed their concerns on the budget for the project.
Commissioner Manuel Barcelona, Jr. shared the sentiments of Commissioners Garcillano and Tuason, Jr.
regarding personnel and budgetary problems. Commissioner Sadain then manifested that the consideration
for the contract for Phase III had already been almost fully paid even before the Court’s nullification of the
contract for Phase II of the AES, but he was open to the possibility of the realignment of funds of the
COMELEC for the funding of the project. He added that if the implementation of Phase III would not be
allowed to continue just because Phase II was nullified, then it would be ₱300,000,000 down the drain, in
addition to the already allocated disbursement on Phase II of the AES.12 Other concerns of the
Commissioners were on the legality of the project considering the scrapping of Phase II of the AES, as well
as the operational constraints related to its implementation.

Despite the dire and serious reservations of most of its members, the COMELEC, the next day, April 28,
2004, barely two weeks before the national and local elections, approved the assailed resolution declaring
that it "adopts the policy that the precinct election results of each city and municipality shall be immediately
transmitted electronically in advance to the COMELEC, Manila."13 For the purpose, respondent COMELEC
established a National Consolidation Center (NCC), Electronic Transmission Centers (ETCs) for every city
and municipality, and a special ETC at the COMELEC, Manila, for the Overseas Absentee Voting.14

Briefly, the procedure for this electronic transmission of precinct results is outlined as follows:

I. The NCC shall receive and consolidate all precinct results based on the data transmitted to it by
each ETC;15

II. Each city and municipality shall have an ETC "where votes obtained by each candidate for all
positions shall be encoded, and shall consequently be transmitted electronically to the NCC, through
Very Small Aperture Terminal (VSAT) facilities."16 For this purpose, personal computers shall be
allocated for all cities and municipalities at the rate of one set for every one hundred seventy-five
(175) precincts;17

III. A Department of Education (DepEd) Supervisor shall be designated in the area who will be assigned in
each polling center for the purpose of gathering from all Board of Election Inspectors (BEI) therein the
envelopes containing the Copy 3 of the Election Returns (ER) for national positions and Copy 2 of the ER for
local positions, both intended for the COMELEC, which shall be used as basis for the encoding and
transmission of advanced precinct results.18

The assailed resolution further provides that written notices of the date, time and place of the electronic
transmission of advanced precinct results shall be given not later than May 5, 2004 to candidates running for
local positions, and not later than May 7, 2004 to candidates running for national positions, as well as to
political parties fielding candidates, and parties, organizations/coalitions participating under the party-list
system.19

In relation to this, Section 13 of the assailed resolution provides that the encoding proceedings were
ministerial and the tabulations were "advanced unofficial results." The entirety of Section 13, reads:

Sec. 13. Right to observe the ETC proceedings. – Every registered political party or coalition of
parties, accredited political party, sectoral party/organization or coalition thereof under the party-list,
through its representative, and every candidate for national positions has the right to
observe/witness the encoding and electronic transmission of the ERs within the authorized
perimeter.
Provided, That candidates for the sangguniang panlalawigan, sangguniang panglungsod or sangguniang
bayanbelonging to the same slate or ticket shall collectively be entitled to only one common observer at the
ETC.

The citizens’ arm of the Commission, and civic, religious, professional, business, service, youth and other
similar organizations collectively, with prior authority of the Commission, shall each be entitled to one (1)
observer. Such fact shall be recorded in the Minutes.

The observer shall have the right to observe, take note of and make observations on the proceedings of the
team. Observations shall be in writing and, when submitted, shall be attached to the Minutes.

The encoding proceedings being ministerial in nature, and the tabulations being advanced unofficial results,
no objections or protests shall be allowed or entertained by the ETC.

In keeping with the "unofficial" character of the electronically transmitted precinct results, the assailed
resolution expressly provides that "no print-outs shall be released at the ETC and at the NCC."20 Instead,
consolidated and per-precinct results shall be made available via the Internet, text messaging, and
electronic billboards in designated locations. Interested parties may print the result published in the
COMELEC web site.21

When apprised of the said resolution, the National Citizens Movement for Free Elections (NAMFREL), and
the heads of the major political parties, namely, Senator Edgardo J. Angara of the Laban ng Demokratikong
Pilipino(LDP) and Chairman of the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive Committee,
Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko, Frisco San Juan of the Nationalist People’s Coalition
(NPC), Gen. Honesto M. Isleta of Bangon Pilipinas, Senate President Franklin Drilon of the Liberal Party,
and Speaker Jose de Venecia of the Lakas-Christian Muslim Democrats (CMD) and Norberto M. Gonzales
of the Partido Demokratiko Sosyalista ng Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their
concerns about the assailed resolution:

This refers to COMELEC Resolution 6712 promulgated on 28 April 2004.

NAMFREL and political parties have the following concerns about Resolution 6712 which arose during
consultation over the past week[:]

a) The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizen’s arm to use
an election return for an unofficial count; other unofficial counts may not be based on an election
return; Indeed, it may be fairly inferred from the law that except for the copy of the citizen’s arm,
election returns may only be used for canvassing or for receiving dispute resolutions.

b) The Commission’s copy, the second or third copy of the election return, as the case may be, has
always been intended to be an archived copy and its integrity preserved until required by the
Commission to resolve election disputes. Only the Board of Election Inspectors is authorized to have
been in contact with the return before the Commission unseals it.

c) The instruction contained in Resolution 6712, to break the seal of the envelope containing copies
Nos. 2 and 3 will introduce a break in the chain of custody prior to its opening by the Commission on
Election[s]. In the process of prematurely breaking the seal of the Board of Election Inspectors, the
integrity of the Commission’s copy is breached, thereby rendering it void of any probative value.

To us, it does appear that the use of election returns as prescribed in Resolution 6712 departs from the
letters and spirit of the law, as well as previous practice. More importantly, questions of legalities aside, the
conduct of an advanced count by the COMELEC may affect the credibility of the elections because it will
differ from the results obtained from canvassing. Needless to say, it does not help either that Resolution
6712 was promulgated only recently, and perceivably, on the eve of the elections.
In view of the foregoing, we respectfully request the Commission to reconsider Resolution 6712 which
authorizes the use of election returns for the consolidation of the election results for the May 10, 2004
elections.22

The Present Petition

On May 4, 2004, the petition at bar was filed in this Court.

Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z. Galvez-Tan, Franklin M. Drilon,
Frisco San Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A. Bernas, filed with this Court their
Motion to Admit Attached Petition-in-Intervention. In their petition-in-intervention, movants-petitioners urge
the Court to declare as null and void the assailed resolution and permanently enjoin the respondent
COMELEC from implementing the same. The Court granted the motion of the petitioners-in-intervention and
admitted their petition.

In assailing the validity of the questioned resolution, the petitioner avers in his petition that there is no
provision under Rep. Act No. 8436 which authorizes the COMELEC to engage in the
biometrics/computerized system of validation of voters (Phase I) and a system of electronic transmission of
election results (Phase III). Even assuming for the nonce that all the three (3) phases are duly authorized,
they must complement each other as they are not distinct and separate programs but mere stages of one
whole scheme. Consequently, considering the failed implementation of Phases I and II, there is no basis at
all for the respondent COMELEC to still push through and pursue with Phase III. The petitioner essentially
posits that the counting and consolidation of votes contemplated under Section 6 of Rep. Act No. 8436
refers to the official COMELEC count under the fully automated system and not any kind of "unofficial" count
via electronic transmission of advanced results as now provided under the assailed resolution.

The petitioners-in-intervention point to several constitutional infractions occasioned by the assailed

resolution. They advance the view that the assailed resolution effectively preempts the sole and exclusive
authority of Congress under Article VII, Section 4 of the Constitution to canvass the votes for President and
Vice-President. Further, as there has been no appropriation by Congress for the respondent COMELEC to
conduct an "unofficial" electronic transmission of results of the May 10, 2004 elections, any expenditure for
the said purpose contravenes Article VI, Section 29 (par. 1) of the Constitution.

On statutory grounds, the petitioner and petitioners-in-intervention contend that the assailed resolution
encroaches upon the authority of NAMFREL, as the citizens’ accredited arm, to conduct the "unofficial"
quick count as provided under pertinent election laws. It is, likewise, impugned for violating Section 52(i) of
the Omnibus Election Code, relating to the requirement of notice to the political parties and candidates of the
adoption of technological and electronic devices during the elections.

For its part, the COMELEC preliminarily assails the jurisdiction of this Court to pass upon the assailed
resolution’s validity claiming that it was promulgated in the exercise of the respondent COMELEC’s
executive or administrative power. It asserts that the present controversy involves a "political question;"
hence, beyond the ambit of judicial review. It, likewise, impugns the standing of the petitioner to file the
present petition, as he has not alleged any injury which he would or may suffer as a result of the
implementation of the assailed resolution.

On the merits, the respondent COMELEC denies that the assailed resolution was promulgated pursuant to
Rep. Act No. 8436, and that it is the implementation of Phase III of its modernization program. Rather, as its
bases, the respondent COMELEC invokes the general grant to it of the power to enforce and administer all
laws relative to the conduct of elections and to promulgate rules and regulations to ensure free, orderly and
honest elections by the Constitution, the Omnibus Election Code, and Rep. Acts Nos. 6646 and 7166. The
COMELEC avers that granting arguendo that the assailed resolution is related to or connected with Phase III
of the modernization program, no specific law is violated by its implementation. It posits that Phases I, II and
III are mutually exclusive schemes such that, even if the first two phases have been scrapped, the latter
phase may still proceed independently of and separately from the others. It further argues that there is
statutory basis for it to conduct an "unofficial" quick count. Among others, it invokes the general grant to it of
the power "to ensure free, orderly, honest, peaceful and credible elections." Finally, it claims that it had
complied with Section 52(i) of the Omnibus Election Code, as the political parties and all the candidates of
the 2004 elections were sufficiently notified of the electronic transmission of advanced election results.

The COMELEC trivializes as "purely speculative" these constitutional concerns raised by the petitioners-in-
intervention and the Senate President. It maintains that what is contemplated in the assailed resolution is not
a canvass of the votes but merely consolidation and transmittal thereof. As such, it cannot be made the
basis for the proclamation of any winning candidate. Emphasizing that the project is "unofficial" in nature, the
COMELEC opines that it cannot, therefore, be considered as preempting or usurping the exclusive power of
Congress to canvass the votes for President and Vice-President.

The Issues

At the said hearing on May 8, 2004, the Court set forth the issues for resolution as follows:

1. Whether the petitioner and the petitioners-intervenors have standing to sue;

2. Assuming that they have standing, whether the issues they raise are political in nature over which
the Court has no jurisdiction;

3. Assuming the issues are not political, whether Resolution No. 6712 is void:

(a) for preempting the sole and exclusive authority of Congress under Art. VII, Sec. 4 of the
1987 Constitution to canvass the votes for the election of President and Vice-President;

(b) for violating Art. VI, Sec. 29 (par. 1) of the 1987 Constitution that "no money shall be paid
out of the treasury except in pursuance of an appropriation made by law;"

(c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166 which authorize only the citizens’
arm to use an election return for an "unofficial" count;

(d) for violation of Sec. 52(i) of the Omnibus Election Code, requiring not less than thirty (30)
days notice of the use of new technological and electronic devices; and,

(e) for lack of constitutional or statutory basis; and,

4. Whether the implementation of Resolution No. 6712 would cause trending, confusion and chaos.

The Ruling of the Court

The issues, as earlier defined, shall now be resolved in seriatim:

The Petitioners And Petitioners-In-Intervention Possess The Locus Standi To Maintain The Present
Action

The gist of the question of standing is whether a 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 constitutional questions.23 Since the
implementation of the assailed resolution obviously involves the expenditure of funds, the petitioner and the
petitioners-in-intervention, as taxpayers, possess the requisite standing to question its validity as they have
sufficient interest in preventing the illegal expenditure of money raised by taxation.24 In essence, taxpayers
are allowed to sue where there is a claim of illegal disbursement of public funds, or that public
money is being deflected to any improper purpose, or where the petitioners seek to restrain the respondent
from wasting public funds through the enforcement of an invalid or unconstitutional law.25

Most of the petitioners-in-intervention are also representatives of major political parties that have
participated in the May 10, 2004 elections. On the other hand, petitioners-in-intervention Concepcion and
Bernas represent the National Citizens Movement for Free Elections (NAMFREL), which is the citizens’ arm
authorized to conduct an "unofficial" quick count during the said elections. They have sufficient, direct and
personal interest in the manner by which the respondent COMELEC would conduct the elections, including
the counting and canvassing of the votes cast therein.

Moreover, the petitioners-in-intervention Drilon and De Venecia are, respectively, President of the Senate
and Speaker of the House of Representatives, the heads of Congress which is exclusively authorized by the
Constitution to canvass the votes for President and Vice-President. They have the requisite standing to
prevent the usurpation of the constitutional prerogative of Congress.

The Issue Raised By The Petition Is Justiciable

Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial review by providing that:

SEC. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

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
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

The Court does not agree with the posture of the respondent COMELEC that the issue involved in
the present petition is a political question beyond the jurisdiction of this Court to review. As the
leading case of Tañada vs. Cuenco26 put it, political questions are concerned with "issues dependent
upon the wisdom, not legality of a particular measure."

The issue raised in the present petition does not merely concern the wisdom of the assailed resolution but
focuses on its alleged disregard for applicable statutory and constitutional provisions. In other words, that
the petitioner and the petitioners-in-intervention are questioning the legality of the respondent COMELEC’s
administrative issuance will not preclude this Court from exercising its power of judicial review to determine
whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the respondent COMELEC in issuing Resolution No. 6712. Indeed, administrative issuances must not
override, supplant or modify the law, but must remain consistent with the law they intend to carry
out.27 When the grant of power is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations respected, is justiciable – the
problem being one of legality or validity, not its wisdom.28 In the present petition, the Court must pass upon
the petitioner’s contention that Resolution No. 6712 does not have adequate statutory or constitutional basis.

Although not raised during the oral arguments, another procedural issue that has to be addressed is whether
the substantive issues had been rendered moot and academic. Indeed, the May 10, 2004 elections have
come and gone. Except for the President and Vice-President, the newly- elected national and local officials
have been proclaimed. Nonetheless, the Court finds it necessary to resolve the merits of the substantive
issues for future guidance of both the bench and bar.29 Further, it is settled rule that courts will decide a
question otherwise moot and academic if it is "capable of repetition, yet evading review."30

The Respondent COMELEC Committed Grave Abuse Of Discretion Amounting To Lack Or Excess Of
Jurisdiction In Issuing Resolution No. 6712

The preliminary issues having been thus resolved, the Court shall proceed to determine whether the
respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in
promulgating the assailed resolution.

The Court rules in the affirmative.

An administrative body or tribunal acts without jurisdiction if it does not have the legal power to determine
the matter before it; there is excess of jurisdiction where the respondent, being clothed with the power to
determine the matter, oversteps its authority as determined by law.31 There is grave abuse of discretion
justifying the issuance of the writ of certiorari when there is a capricious and whimsical exercise of his
judgment as is equivalent to lack of jurisdiction.32

First. The assailed resolution usurps, under the guise of an "unofficial" tabulation of election results based
on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the
election of President and Vice-President. Article VII, Section 4 of the Constitution provides in part:

The returns of every election for President and Vice-President duly certified by the board of
canvassers of each province or city, shall be transmitted to the Congress, directed to the President
of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later
than thirty days after the day of the election, open all the certificates in the presence of the Senate
and the House of Representatives in joint public session, and the Congress, upon determination of
the authenticity and due execution thereof in the manner provided by law, canvass the votes.

As early as January 28, 2004, Senate President Franklin M. Drilon already conveyed to Chairman Benjamin
S. Abalos, Sr. his deep-seated concern that the respondent COMELEC could not and should not conduct
any "quick count" of the votes cast for the positions of President and Vice-President. In his Letter dated
February 2, 200433addressed to Chairman Abalos, Senate President Drilon reiterated his position
emphasizing that "any quick count to be conducted by the Commission on said positions would in effect
constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive
of the authority of Congress, but would also be lacking of any constitutional authority."34

Nonetheless, in disregard of the valid objection of the Senate President, the COMELEC proceeded to
promulgate the assailed resolution. Such resolution directly infringes the authority of Congress, considering
that Section 4 thereof allows the use of the third copy of the Election Returns (ERs) for the positions of
President, Vice-President, Senators and Members of the House of Representatives, intended for the
COMELEC, as basis for the encoding and transmission of advanced precinct results, and in the process,
canvass the votes for the President and Vice-President, ahead of the canvassing of the same votes by
Congress.

Parenthetically, even the provision of Rep. Act No. 8436 confirms the constitutional undertaking of Congress
as the sole body tasked to canvass the votes for the President and Vice-President. Section 24 thereof
provides:

SEC. 24. Congress as the National Board of Canvassers for President and Vice-President. -- The
Senate and the House of Representatives, in joint public session, shall compose the national board
of canvassers for president and vice-president. The returns of every election for president and vice-
president duly certified by the board of canvassers of each province or city, shall be transmitted to
the Congress, directed to the president of the Senate. Upon receipt of the certificates of canvass, the
president of the Senate shall, not later than thirty (30) days after the day of the election, open all the
certificates in the presence of the Senate and the House of Representatives in joint public session,
and the Congress upon determination of the authenticity and the due execution thereof in the
manner provided by law, canvass all the results for president and vice-president by consolidating the
results contained in the data storage devices submitted by the district, provincial and city boards of
canvassers and thereafter, proclaim the winning candidates for president and vice-president.

The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and Rep.
Act No. 8436 as such tabulation is "unofficial," is puerile and totally unacceptable. If the COMELEC is
proscribed from conducting an official canvass of the votes cast for the President and Vice-President, the
COMELEC is, with more reason, prohibited from making an "unofficial" canvass of said votes.

The COMELEC realized its folly and the merits of the objection of the Senate President on the
constitutionality of the resolution that it decided not to conduct an "unofficial" quick count of the results of the
elections for President and Vice-President. Commissioner Sadain so declared during the hearing:

JUSTICE PUNO:
 The word you are saying that within 36 hours after election, more or less, you will be able to tell the
people on the basis of your quick count, who won the election, is that it?

COMM. SADAIN:

Well, it’s not exactly like that, Your Honor. Because the fact of winning the election would really
depend on the canvassed results, but probably, it would already give a certain degree of comfort to
certain politicians to people rather, as to who are leading in the elections, as far as Senator down are
concerned, but not to President and Vice-President.

JUSTICE PUNO:

So as far as the Senatorial candidates involved are concerned, but you don’t give this assurance
with respect to the Presidential and Vice-Presidential elections which are more important?

COMM. SADAIN:

In deference to the request of the Senate President and the House Speaker, Your Honor. According
to them, they will be the ones canvassing and proclaiming the winner, so it is their view that we will
be pre-empting their canvassing work and the proclamation of the winners and we gave in to their
request.35

JUSTICE CALLEJO, [SR.]:

Perhaps what you are saying is that the system will minimize "dagdag-bawas" but not totally
eradicate "dagdag-bawas"?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CALLEJO, [SR.]:

Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there was a conference between the
Speaker and the Senate President and the Chairman during which the Senate President and the
Speaker voice[d] their objections to the electronic transmission results system, can you share with
us the objections of the two gentlemen?

COMM. SADAIN:

These was relayed to us Your Honor and their objection or request rather was for us to refrain from
consolidating and publishing the results for presidential and vice-presidential candidates which we
have already granted Your Honors. So, there is going to be no consolidation and no publication of
the …

COMM. SADAIN:

Reason behind being that it is actually Congress that canvass that the official canvass for this and
proclaims the winner.36

Second. The assailed COMELEC resolution contravenes the constitutional provision that "no money shall
be paid out of the treasury except in pursuance of an appropriation made by law."37
By its very terms, the electronic transmission and tabulation of the election results projected under
Resolution No. 6712 is "unofficial" in character, meaning "not emanating from or sanctioned or
acknowledged by the government or government body.38 Any disbursement of public funds to implement this
project is contrary to the provisions of the Constitution and Rep. Act No. 9206, which is the 2003 General
Appropriations Act. The use of the COMELEC of its funds appropriated for the AES for the "unofficial" quick
count project may even be considered as a felony under Article 217 of the Revised Penal Code, as
amended.39

Irrefragably, the implementation of the assailed resolution would entail, in due course, the hiring of additional
manpower, technical services and acquisition of equipment, including computers and software, among
others. According to the COMELEC, it needed ₱55,000,000 to operationalize the project, including the
encoding process.40Hence, it would necessarily involve the disbursement of public funds for which there
must be the corresponding appropriation.

The COMELEC posited during the hearing that the 2003 General Appropriations Act has appropriated the
amount needed for its "unofficial" tabulation. We quote the transcript of stenographic notes taken during the
hearing:

JUSTICE VITUG:

And you mentioned earlier something about 55 million not being paid as yet?

COMM. SADAIN:

This is an extra amount that we will be needing to operationalize.

JUSTICE VITUG:

And this has not yet been done?

COMM. SADAIN:

It has not yet been done, Your Honor.

JUSTICE VITUG:

Would you consider the funds that were authorized by you under the General Appropriations Act as
capable of being used for this purpose?

COMM. SADAIN:

Yes, that’s our position, Your Honor.41

But then the COMELEC, through Commissioner Sadain, admitted during the said hearing that although it
had already approved the assailed resolution, it was still looking for the ₱55,000,000 needed to
operationalize the project:

JUSTICE CARPIO:

Just a clarification. You stated that you signed already the main contract for 300 million but you have
not signed the 55 million supplemental contract for the encoding?

COMM. SADAIN:

Yes, Your Honor.

 JUSTICE CARPIO:

Because you still don’t have the money for that?

COMM. SADAIN:

Well, yes, we are trying to determine where we can secure the money.

JUSTICE CARPIO:

Now, the encoding is crucial; without the encoding, the entire project collapses?

COMM. SADAIN:

Yes.42

Inexplicably, Commissioner Sadain contradicted himself when he said that its Financial Department had
already found the money, but that proper documentation was forthcoming:

JUSTICE CARPIO:

Just a clarification. You stated that you signed already the main contract for 300 million but you have
not signed the 55 million supplemental contract for the encoding?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

Because you still don’t have the money for that?

COMM. SADAIN:

Well, yes, we are trying to determine where we can secure the money.

JUSTICE CARPIO:

Now, the encoding is crucial; without the encoding, the entire project collapses?

COMM. SADAIN:

Yes.

JUSTICE CARPIO:

So, you have two (2) days to look for the 55 million, you have signed the contract on the main
contract and if you don’t get that 55 million, that 300 million main contract goes to waste, because
you cannot encode?

COMM. SADAIN:

It’s just a matter of proper documentation, Your Honor, because I was informed by our Finance
Department that the money is there.
 JUSTICE CARPIO:

So, you have found the money already?

COMM. SADAIN:

Yes, Your Honor.43

Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the Commissioners expressed their
serious concerns about the lack of funds for the project, the propriety of using the funds for Phase III of its
modernization, and the possibility of realigning funds to finance the project:

Comm. Tuason:

May I just request all the parties who are in here na whatever is said here should be confined within
the four walls of this room and the minutes so that walang masyadong problema.

Comm. Borra:

Sa akin lang, we respect each other’s opinion. I will not make any observations. I will just submit my
own memo to be incorporated in the minutes.

Comm. Tuason:

Commissioner Borra will submit a comment to be attached to the minutes but not on the
resolution. Ako naman, I will just make it on record my previous reservation. I do not have any
objection as to the Phase III modernization project itself. My main concern is the budget. I would like
to make it on record that the budget for Phase III should be taken from the modernization program
fund because Phase III is definitely part of the modernization project. Other funds, for instance other
funds to be used for national elections may not be proper for realignment. That is why I am saying
that the funds to be used for Phase III should properly come from the modernization. The other
reservation is that the Election Officers are now plagued with so much work such as the preparation
of the list of voters and their concern in their respective areas. They were saying to me, specially so
in my own region, that to burden them with another training at this point in time will make them loose
(sic) focus on what they are really doing for the national elections and what they are saying is that
they should not be subjected to any training anymore. And they also said that come canvassing
time, their priority would be to canvass first before they prepare the certificate of votes to be fed to
the encoders [to be fed to the encoders] for electronic transmission. I share the sentiments of our
people in the field. That is also one of my reservations. Thank you.

Comm. Garcillano:

I also have my observations regarding the financial restraint that we are facing if the money that is
going to be used for this is taken from the Phase II, I don’t think there is money left.

Comm. Borra:

There is no more money in Phase II because the budget for Phase II is 1.3 Billion. The award on the
contract for Phase II project is 1.248 billion. So the remaining has been allocated for additional
expenses for the technical working group and staff for Phase II.

Comm. Garcillano:

I also have one problem. We have to have additional people to man this which I think is already
being taken cared of. Third is, I know that this will disrupt the canvassing that is going to be handled
by our EO and Election Assistant. I do not know if it is given to somebody (inaudible)
 Comm. Tuason:

Those are your reservations.

Comm. Barcelona:

As far as I am concerned, I also have my reservations because I have the same experience as
Commissioner Tuason when I went to Region IX and Caraga. Our EOs and PES’ expressed
apprehension over the additional training period that they may have to undergo although, they say,
that if that is an order they will comply but it will be additional burden on them. I also share the
concern of Commissioner Tuason with regard to the budget that should be taken from the
modernization budget.

Comm. Borra:

For the minutes, my memo is already prepared. I will submit it in detail. On three counts naman yan
eh – legal, second is technical/operational and third is financial.

Comm. Sadain:

Ako naman, for my part as the CIC for Phase III, we were left with no choice but to implement Phase
III inasmuch as expenses has already been incurred in Phase III to the tune of almost 100% at the
time when the Phase II contract was nullified. So if we stop the implementation of Phase III just
because Phase II was nullified, which means that there would be no consolidation and accounting –
consolidation for the machines, then it would be again 300 million pesos down the drain. Necessarily
there would be additional expense but we see this as a consequence of the loss of Phase II. I share
the view of Comm. Tuason that as much as possible this should be taken from the modernization
fund as much as this is properly modernization concern. However, I would like to open myself to the
possibility na in case wala talaga, we might explore the possibility of realigning funds although that
might not …(inaudible). Now with regards the legality, I think what Commissioner Borra has derived
his opinion but I would like to think the legality issue must have been settled already as early as
when we approved the modernization program involving all three phases although we also grant the
benefit of the argument for Commissioner Borra if he thinks that there is going to be a legal gap for
the loss of Phase II. With regards the concern with the Election Officers, I also share the same
concern. In fact, on this matter alone, we try to make the GI as simple as possible so that whatever
burden we will be giving to the EOs and EAs will be minimized. As in fact, we will be recommending
that the EOs will no longer be bothered to attend the training. They can probably just sit in for the
first hour and then they can go on with their normal routine and then leave the encoders as well as
the reception officers to attend the training because there (sic) are the people who will really be
doing the ministerial, almost mechanical, work of encoding and transmitting the election results. Yun
lang.44

We have reviewed Rep. Act No. 9206, the General Appropriations Act, which took effect on April 23, 2003
and find no appropriation for the project of the COMELEC for electronic transmission of "unofficial" election
results. What is appropriated therein is the amount of ₱225,000,000 of the capital outlay for
the modernization of the electoral system.

B. PROJECTS Maintenance & Other Capital Total

Operating Expenses Outlays
I. Locally-Funded Projects
a. For the Modernization of
225,000,000 225,000,000
Electoral System
b. FY 2003 Preparatory Activities
250,000,000 250,000,000
for National Elections
 c. Upgrading of Voters’ Database 125,000,000 125,000,000
d. Conduct of Special Election to
fill the vacancy in the Third District 6,500,000 6,500,000
of Cavite
e. Implementation of Absentee
300,000,000 300,000,000
Voting Act of 2003 (RA 9189)
========== ========= ==========
Sub-Total, Locally-Funded Projects 681,500,000 225,000,000 300,000,000 45

Under paragraph 3 of the special provisions of Rep. Act No. 9206, the amount of ₱225,000,000 shall be
used primarily for the establishment of the AES prescribed under Rep. Act No. 8436, viz:

3. Modernization of Electoral System. The appropriations herein authorized for the Modernization of
the Electoral System in the amount of Two Hundred Twenty-Five Million Pesos (₱225,000,000.00)
shall be used primarily for the establishment of the automated election system, prescribed under
Republic Act No. 8436, particularly for the process of voting, counting of votes and
canvassing/consolidation of results of the national and local elections.46

Section 52 of Rep. Act No. 9206 proscribes any change or modification in the expenditure items authorized
thereunder. Thus:

Sec. 52. Modification of Expenditure Components. Unless specifically authorized in this Act, no
change or modification shall be made in the expenditure items in this Act and other appropriations
laws unless in cases of augmentation from savings in appropriations as authorized under Section
25(5), Article VI of the 1987 Philippine Constitution.

Neither can the money needed for the project be taken from the COMELEC’s savings, if any, because it
would be violative of Article VI, Section 25 (5)47 of the 1987 Constitution.

The power to augment from savings lies dormant until authorized by law.48 In this case, no law has, thus, far
been enacted authorizing the respondent COMELEC to transfer savings from another item in its
appropriation, if there are any, to fund the assailed resolution. No less than the Secretary of the Senate
certified that there is no law appropriating any amount for an "unofficial" count and tabulation of the votes
cast during the May 10, 2004 elections:

CERTIFICATION

I hereby certify that per records of the Senate, Congress has not legislated any appropriation
intended to defray the cost of an unofficial count, tabulation or consolidation of the votes cast during
the May 10, 2004 elections.

May 11, 2004. Pasay City, Philippines.

What is worrisome is that despite the concerns of the Commissioners during its En Banc meeting on April
27, 2004, the COMELEC nevertheless approved the assailed resolution the very next day. The COMELEC
had not executed any supplemental contract for the implementation of the project with PMSI. Worse, even in
the absence of a certification of availability of funds for the project, it approved the assailed resolution.

Third. The assailed resolution disregards existing laws which authorize solely the duly-accredited citizens’
arm to conduct the "unofficial" counting of votes. Under Section 27 of Rep. Act No. 7166, as amended by
Rep. Act No. 8173,49 and reiterated in Section 18 of Rep. Act No. 8436,50 the accredited citizen’s arm - in this
case, NAMFREL - is exclusively authorized to use a copy of the election returns in the conduct of an
"unofficial" counting of the votes, whether for the national or the local elections. No other entity, including the
respondent COMELEC itself, is authorized to use a copy of the election returns for purposes of conducting
an "unofficial" count. In addition, the second or third copy of the election returns, while required to be
delivered to the COMELEC under the aforementioned laws, are not intended for undertaking an "unofficial"
count. The aforesaid COMELEC copies are archived and unsealed only when needed by the respondent
COMELEC to verify election results in connection with resolving election disputes that may be imminent.
However, in contravention of the law, the assailed Resolution authorizes the so-called Reception Officers
(RO), to open the second or third copy intended for the respondent COMELEC as basis for the encoding
and transmission of advanced "unofficial" precinct results. This not only violates the exclusive prerogative of
NAMFREL to conduct an "unofficial" count, but also taints the integrity of the envelopes containing the
election returns, as well as the returns themselves, by creating a gap in its chain of custody from the Board
of Election Inspectors to the COMELEC.

Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the COMELEC as the statutory basis
for the assailed resolution, does not cover the use of the latest technological and election devices for
"unofficial" tabulations of votes. Moreover, the COMELEC failed to notify the authorized representatives of
accredited political parties and all candidates in areas affected by the use or adoption of technological and
electronic devices not less than thirty days prior to the effectivity of the use of such devices. Section 52(i)
reads:

SEC. 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 shall :

(i) Prescribe the use or adoption of the latest technological and electronic devices, taking into
account the situation prevailing in the area and the funds available for the purpose: Provided,
That the Commission shall notify the authorized representatives of accredited political parties
and candidates in areas affected by the use or adoption of technological and electronic
devices not less than thirty days prior to the effectivity of the use of such devices.

From the clear terms of the above provision, before the COMELEC may resort to and adopt the latest
technological and electronic devices for electoral purposes, it must act in accordance with the following
conditions:

(a) Take into account the situation prevailing in the area and the funds available for the purpose;
and,

(b) Notify the authorized representatives of accredited political parties and candidates in areas
affected by the use or adoption of technological and electronic devices not less than thirty days prior
to the effectivity of the use of such devices.

It is quite obvious that the purpose of this provision is to accord to all political parties and all candidates the
opportunity to object to the effectiveness of the proposed technology and devices, and, if they are so minded
not to object, to allow them ample time to field their own trusted personnel especially in far flung areas and
to take other necessary measures to ensure the reliability of the proposed electoral technology or device.

As earlier pointed out, the assailed resolution was issued by the COMELEC despite most of the
Commissioners’ apprehensions regarding the legal, operational and financial impediments thereto. More
significantly, since Resolution No. 6712 was made effective immediately a day after its issuance on April 28,
2004, the respondent COMELEC could not have possibly complied with the thirty-day notice requirement
provided under Section 52(i) of the Omnibus Election Code. This indubitably violates the constitutional right
to due process of the political parties and candidates. The Office of the Solicitor General (OSG) concedes
this point, as it opines that "the authorized representatives of accredited political parties and candidates
should have been notified of the adoption of the electronic transmission of election returns nationwide at the
latest on April 7, 2004, April 8 and 9 being Holy Thursday and Good Friday, pursuant to Section 52(i) of the
Omnibus Election Code."51 Furthermore, during the hearing on May 18, 2004, Commissioner Sadain, who
appeared for the COMELEC, unabashedly admitted that it failed to notify all the candidates for the 2004
elections, as mandated by law:
JUSTICE CARPIO:

You stated that you have notified in writing all the political parties and candidates as required in
Section 52 (i)?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

Now, how many candidates are there nationwide now?

COMM. SADAIN:

I must admit you Honor we were not able to notify the candidates but we notified the politicians.

JUSTICE CARPIO:

Yes, but what does the law state? Read the law please.

COMM. SADAIN:

Yes, Your Honor. I understand that it includes candidates.

JUSTICE CARPIO:

And there are how many candidates nationwide running in this election?

COMM. SADAIN:

Hundreds of thousands, Your Honor.

JUSTICE CARPIO:

Hundreds of thousands, so you mean you just notified the political parties not the candidates?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

And you think that is substantial compliance, you would notify how many political parties as against
hundreds of thousands of candidates?

COMM. SADAIN:

Yes, Your Honor, we notified the major political parties, Your Honor.

JUSTICE CARPIO:

Only the major political parties?

COMM. SADAIN:
 Including party list?

JUSTICE CARPIO:

But not the candidates, individual candidates?

COMM. SADAIN:

We were not able to do that, Your Honor, I must admit.

JUSTICE CARPIO:

So, you did not notify hundreds of thousands of candidates?

COMM. SADAIN:

No, Your Honors.52

The respondent COMELEC has, likewise, failed to submit any resolution or document to prove that it had
notified all political parties of the intended adoption of Resolution No. 6712, in compliance with Section 52(i)
of the Omnibus Election Code. This notwithstanding the fact that even long before the issuance of the
assailed resolution, it had admittedly entered into a contract on April 15, 200353 and acquired facilities
pertaining to the implementation of the electronic transmission and official tabulation of election results. As
correctly pointed out by the petitioners-in-intervention, the invitations dated January 15, 2004 regarding the
January 20, 2004 COMELEC Conference with the political parties on election security measures did not
mention electronic transmission of advanced results, much less the formal adoption of the purpose of the
conference. Such "notices" merely invited the addressee thereof or its/his authorized representative to a
conference where the COMELEC would show a sample of the official ballot to be used in the elections,
discuss various security measures that COMELEC had put in place, and solicit suggestions to improve the
administration of the polls.54 Further, the invitations purportedly sent out to the political parties regarding the
April 6, 2004 Field Test of the Electronic Transmission, Consolidation and Dissemination System to be
conducted by the COMELEC appear to have been sent out in the late afternoon of April 5, 2004, after office
hours. There is no showing that all the political parties attended the Field Test, or received the invitations.
More importantly, the said invitations did not contain a formal notice of the adoption of a technology, as
required by Section 52(i) of the Omnibus Election Code.55

Fifth. The assailed resolution has no constitutional and statutory basis. That respondent COMELEC is the
sole body tasked to "enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall"56 and to ensure "free, orderly, honest, peaceful and credible
elections"57 is beyond cavil. That it possesses the power to promulgate rules and regulations in the
performance of its constitutional duties is, likewise, undisputed. However, the duties of the COMELEC under
the Constitution, Rep. Act No. 7166, and other election laws are carried out, at all times, in its official
capacity. There is no constitutional and statutory basis for the respondent COMELEC to undertake a
separate and an "unofficial" tabulation of results, whether manually or electronically. Indeed, by conducting
such "unofficial" tabulation of the results of the election, the COMELEC descends to the level of a private
organization, spending public funds for the purpose. Besides, it is absurd for the COMELEC to conduct two
kinds of electoral counts – a slow but "official" count, and an alleged quicker but "unofficial" count, the
results of each may substantially differ.

Clearly, the assailed resolution is an implementation of Phase III of the modernization program of the
COMELEC under Rep. Act No. 8436. Section 2 of the assailed resolution expressly refers to the Phase III-
Modernization Project of the COMELEC. Since this Court has already scrapped the contract for Phase II of
the AES, the COMELEC cannot as yet implement the Phase III of the program. This is so provided in
Section 6 of Rep. Act No. 8436.

SEC. 6. Authority to Use an Automated Election System. -- To carry out the above-stated policy, the
Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated
election system, herein referred to as the System, for the process of voting, counting of votes and
canvassing/consolidation of results of the national and local elections: Provided, however, That for the May
11, 1998 elections, the System shall be applicable in all areas within the country only for the positions of
president, vice-president, senators and parties, organizations or coalitions participating under the party-list
system.

To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or
otherwise, any supplies, equipment, materials and services needed for the holding of the elections by an
expedited process of public bidding of vendors, suppliers or lessors: Provided, That the accredited political
parties are duly notified of and allowed to observe but not to participate in the bidding. If in spite of its diligent
efforts to implement this mandate in the exercise of this authority, it becomes evident by February 9, 1998
that the Commission cannot fully implementthe automated election system for national positions in the May
11, 1998 elections, the elections for both national and local positions shall be done manually except in the
Autonomous Region in Muslim Mindanao (ARMM) where the automated election system shall be used for all
positions.

The AES provided in Rep. Act No. 8436 constitutes the entire "process of voting, counting of votes and
canvassing/consolidation of results of the national and local elections" corresponding to the Phase I, Phase
II and Phase III of the AES of the COMELEC. The three phases cannot be effected independently of each
other. The implementation of Phase II of the AES is a condition sine qua non to the implementation of Phase
III. The nullification by this Court of the contract for Phase II of the System effectively put on hold, at least for
the May 10, 2004 elections, the implementation of Phase III of the AES.

Sixth. As correctly observed by the petitioner, there is a great possibility that the "unofficial" results reflected
in the electronic transmission under the supervision and control of the COMELEC would significantly vary
from the results reflected in the COMELEC official count. The latter follows the procedure prescribed by the
Omnibus Election Code, which is markedly different from the procedure envisioned in the assailed
resolution.

Under the Omnibus Election Code, after the votes are cast and the polls closed, the Board of Election
Inspectors (BEI) for each precinct is enjoined to publicly count the votes and record the same
simultaneously on the tally boards and on two sets of ERs. Each set of the ER is prepared in eight (8)
copies. After the ERs are accomplished, they are forwarded to the Municipal Board of Canvassers (MBC),
which would canvass all the ERs and proclaim the elected municipal officials. All the results in the ERs are
transposed to the statements of votes (SOVs) by precinct. These SOVs are then transferred to the
certificates of canvass (COCs) which are, in turn, brought to the Provincial Board of Canvassers (PBC).
Subsequently, the PBC would canvass all the COCs from various municipalities and proclaim the elected
provincial officials, including those to the House of Representatives. The PBC would then prepare two sets
of Provincial Certificates of Canvass (PCOCs). One set is forwarded to Congress for its canvassing of the
results for the President and Vice-President. The other set is forwarded to the COMELEC for its canvassing
of the results for Senators.

As the results are transposed from one document to another, and as each document undergoes the
procedure of canvassing by various Boards of Canvassers, election returns and certificates of canvass are
objected to and at times excluded and/or deferred and not tallied, long after the pre-proclamation
controversies are resolved by the canvass boards and the COMELEC.

On the other hand, under the assailed resolution, the precinct results of each city and municipality received
by the ETCs would be immediately electronically transmitted to the NCC. Such data, which have not
undergone the process of canvassing, would expectedly be dissimilar to the data on which the official count
would be based.

Resultantly, the official and unofficial canvass, both to be administered by the respondent COMELEC, would
most likely not tally. In the past elections, the "unofficial" quick count conducted by the NAMFREL had never
tallied with that of the official count of the COMELEC, giving rise to allegations of "trending" and confusion.
With a second "unofficial" count to be conducted by the official election body, the respondent COMELEC, in
addition to its official count, allegations of "trending," would most certainly be aggravated. As a
consequence, the electoral process would be undermined.
The only intimated utility claimed by the COMELEC for the "unofficial" electronic transmission count is to
avert the so-called "dagdag-bawas." The purpose, however, as the petitioner properly characterizes it, is a
total sham. The Court cannot accept as tenable the COMELEC’s profession that from the results of the
"unofficial" count, it would be able to validate the credibility of the official tabulation. To sanction this process
would in effect allow the COMELEC to preempt or prejudge an election question or dispute which has not
been formally brought before it for quasi-judicial cognizance and resolutions.

Moreover, the Court doubts that the problem of "dagdag-bawas" could be addressed by the implementation
of the assailed resolution. It is observed that such problem arises because of the element of human
intervention. In the prevailing set up, there is human intervention because the results are manually tallied,
appreciated, and canvassed. On the other hand, the electronic transmission of results is not entirely devoid
of human intervention. The crucial stage of encoding the precinct results in the computers prior to the
transmission requires human intervention. Under the assailed resolution, encoding is accomplished by
employees of the PMSI. Thus, the problem of "dagdag-bawas" could still occur at this particular stage of the
process.

As it stands, the COMELEC "unofficial" quick count would be but a needless duplication of the NAMFREL
"quick" count, an illegal and unnecessary waste of government funds and effort.

Conclusion

The Court is mindful of the salutary goals that the respondent COMELEC had envisioned in promulgating
the assailed resolution, to wit: [t]o renew the public’s confidence in the Philippine Electoral System by:

1. Facilitating transparency in the process;

2. Ensuring the integrity of the results;

3. Reducing election results manipulation;

4. Providing timely, fast and accurate information to provide the public re election results;

5. Enabling the validation of its own official count and other counts;

6. Having an audit trail in its own account.58

Doubtless, these are laudable intentions. But the rule of law requires that even the best intentions must be
carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried
out by legal methods.59

WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712 dated April 28, 2004 issued by
the Commission on Elections (COMELEC) En Banc is hereby declared NULL AND VOID.

SO ORDERED.

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of
Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO
FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as
Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON, as
Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V.
RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO
FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of
Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO
GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO
D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic
Development Authority, respondents.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being resolved jointly as both seek a declaration of the
unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed
Executive Order are:

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet,
undersecretary or assistant secretary or other appointive officials of the Executive Department may,
in addition to his primary position, hold not more than two positions in the government and
government corporations and receive the corresponding compensation therefor; Provided, that this
limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which
the President is the Chairman.

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official
of the Executive Department holds more positions than what is allowed in Section 1 hereof, they
(sic) must relinquish the excess position in favor of the subordinate official who is next in rank, but in
no case shall any official hold more than two positions other than his primary position.

Sec. 3. In order to fully protect the interest of the government in government-owned or controlled
corporations, at least one-third (1/3) of the members of the boards of such corporation should either
be a secretary, or undersecretary, or assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold other government offices or positions in addition to their
primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of
the 1987 Constitution,2 which provides as follows:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution, hold any other office or employment during
their tenure. They shall not, during said tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their office.

It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the
Cabinet, along with the other public officials enumerated in the list attached to the petitions as Annex "C" in
G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment during their
tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner
Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs
of prohibition and mandamus, as well as a temporary restraining order directing public respondents therein
to cease and desist from holding, in addition to their primary positions, dual or multiple positions other than
those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other
forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents
to return, reimburse or refund any and all amounts or benefits that they may have received from such
positions.

Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted
"absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez,
construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987
Opinion No. 73, series of 1987,5 declaring that Cabinet members, their deputies (undersecretaries) and
assistant secretaries may hold other public office, including membership in the boards of government
corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice who
is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or
(b) if allowed by law; or (c) if allowed by the primary functions of their respective positions; and that on the
basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress
convened on July 27, 1987: promulgated Executive Order No. 284.6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No.
284 as they allegedly "lumped together" Section 13, Article VII and the general provision in another article,
Section 7, par. (2), Article I-XB. This "strained linkage" between the two provisions, each addressed to a
distinct and separate group of public officers –– one, the President and her official family, and the other,
public servants in general –– allegedly "abolished the clearly separate, higher, exclusive, and mandatory
constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-President, the
members of the Cabinet, and their deputies and subalterns, who are the leaders of government expected to
lead by example."7 Article IX-B, Section 7, par. (2)8 provides:

Sec. 7. . . . . .

Unless otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further
elucidated and clarified by DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155, series of
1988,10 being the first official construction and interpretation by the Secretary of Justice of Section 13, Article
VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject of appointments or
designations of an appointive executive official to positions other than his primary position, is "reasonably
valid and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion No.
73, series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987
and DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not applying
to ex-officio positions or to positions which, although not so designated as ex-officio are allowed by the
primary functions of the public official, but only to the holding of multiple positions which are not related to or
necessarily included in the position of the public official concerned (disparate positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal
submission that it adds exceptions to Section 13, Article VII other than those provided in the Constitution.
According to petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only
exceptions against holding any other office or employment in Government are those provided in the
Constitution, namely: (1) The Vice-President may be appointed as a Member of the Cabinet under Section
3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII.

Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil
Service Commission applies to officers and employees of the Civil Service in general and that said
exceptions do not apply and cannot be extended to Section 13, Article VII which applies specifically to the
President, Vice-President, Members of the Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet
and their deputies or assistants from holding dual or multiple positions in the Government admits of certain
exceptions. The disagreement between petitioners and public respondents lies on the constitutional basis of
the exception. Petitioners insist that because of the phrase "unless otherwise provided in this Constitution"
used in Section 13 of Article VII, the exception must be expressly provided in the Constitution, as in the case
of the Vice-President being allowed to become a Member of the Cabinet under the second paragraph of
Section 3, Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and
Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase
"unless otherwise provided in the Constitution" in Section 13, Article VII makes reference to Section 7, par.
(2), Article I-XB insofar as the appointive officials mentioned therein are concerned.

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution
insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made
for appointive officials in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted
anew, thus: "Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporation or their subsidiaries."

We rule in the negative.

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied.
A doubtful provision will be examined in the light of the history of the times, and the condition and
circumstances under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words consonant to that reason and
calculated to effect that purpose.11

The practice of designating members of the Cabinet, their deputies and assistants as members of the
governing bodies or boards of various government agencies and instrumentalities, including government-
owned and controlled corporations, became prevalent during the time legislative powers in this country were
exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There was a
proliferation of newly-created agencies, instrumentalities and government-owned and controlled
corporations created by presidential decrees and other modes of presidential issuances where Cabinet
members, their deputies or assistants were designated to head or sit as members of the board with the
corresponding salaries, emoluments, per diems, allowances and other perquisites of office. Most of these
instrumentalities have remained up to the present time.

This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous
public officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of
multiple offices in government was strongly denounced on the floor of the Batasang Pambansa.12 This
condemnation came in reaction to the published report of the Commission on Audit, entitled "1983 Summary
Annual Audit Report on: Government-Owned and Controlled Corporations, Self-Governing Boards and
Commissions" which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of December 31, 1983."

Particularly odious and revolting to the people's sense of propriety and morality in government service were
the data contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine
(29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23);
Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z.
Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of
twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and
Lilia Bautista and Teodoro Q. Peña of ten (10) each.13

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos
regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people
that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former
President Marcos, should draft into its proposed Constitution the provisions under consideration which are
envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and
employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these
cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was
the assurance given by its proponents that the scandalous practice of Cabinet members holding multiple
positions in the government and collecting unconscionably excessive compensation therefrom would be
discontinued.

But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket
prohibition against the holding of multiple offices or employment in the government subsuming both elective
and appointive public officials, the Constitutional Commission should see it fit to formulate another provision,
Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their
deputies and assistants from holding any other office or employment during their tenure, unless otherwise
provided in the Constitution itself.

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

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the
Constitution on the disqualifications of certain public officials or employees from holding other offices or
employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may
hold any other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member
of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian
position in the Government,including government-owned or controlled corporations or any of their
subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise
allowed by law or by the primary functions of his position, no appointive official shall hold any other office or
employment in the Government."

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states
that "(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold any other office or employment during their tenure." In
the latter provision, the disqualification is absolute, not being qualified by the phrase "in the Government."
The prohibition imposed on the President and his official family is therefore all-embracing and covers both
public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure,
directly or indirectly, practice any other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official family,
which prohibitions are not similarly imposed on other public officials or employees such as the Members of
Congress, members of the civil service in general and members of the armed forces, are proof of the intent
of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon
said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was
also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted
during the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions,
originally found in the General Provisions and the anticipated report on the Executive Department.
Commissioner Foz Commented, "We actually have to be stricter with the President and the members of the
Cabinet because they exercise more powers and, therefore, more cheeks and restraints on them are called
for because there is more possibility of abuse in their case."14
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in
the government during their tenure when such is allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized
by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the general rule
applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant
to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their
deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13,
Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987
Constitution. To construe said qualifying phrase as respondents would have us do, would render nugatory
and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter
prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with
respect to holding other offices or employment in the government during their tenure. Respondents'
interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B
would obliterate the distinction so carefully set by the framers of the Constitution as to when the high-ranking
officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and the
generality of civil servants from the rank immediately below Assistant Secretary downwards, on the other,
may hold any other office or position in the government during their tenure.

Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution
inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is
allowed to hold other office or employment when so authorized by the Constitution, but who as an elective
public official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for appointment or designation in
any capacity to any public office or position during his tenure." Surely, to say that the phrase "unless
otherwise provided in this Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of
Article I-XB would render meaningless the specific provisions of the Constitution authorizing the Vice-
President to become a member of the Cabinet,15 and to act as President without relinquishing the Vice-
Presidency where the President shall not nave been chosen or fails to qualify.16 Such absurd consequence
can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of
Article I-XB providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception
thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article
VII.

It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be

separated from all the others, to be considered alone, but that all the provisions bearing upon a particular
subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the
instrument.17 Sections bearing on a particular subject should be considered and interpreted together as to
effectuate the whole purpose of the Constitution18 and one section is not to be allowed to defeat another, if
by any reasonable construction, the two can be made to stand together.19

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which
will render every word operative, rather than one which may make the words idle and nugatory.20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding
multiple offices or employment in the government during their tenure, the exception to this prohibition must
be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must
be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is
to be understood as intended to be a positive and unequivocal negation.21 The phrase "unless otherwise
provided in this Constitution" must be given a literal interpretation to refer only to those particular instances
cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under
Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2)
and (3), Article VII; and, the Secretary of Justice being ex-officiomember of the Judicial and Bar Council by
virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the
Constitution must not, however, be construed as applying to posts occupied by the Executive officials
specified therein without additional compensation in an ex-officio capacity as provided by law and
as required22 by the primary functions of said officials' office. The reason is that these posts do no comprise
"any other office" within the contemplation of the constitutional prohibition but are properly an imposition of
additional duties and functions on said officials.23 To characterize these posts otherwise would lead to absurd
consequences, among which are: The President of the Philippines cannot chair the National Security
Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can the Vice-President,
the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and
Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and
members. The respective undersecretaries and assistant secretaries, would also be prohibited.

The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and
Youth Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are
attached to his department for policy coordination and guidance. Neither can his Undersecretaries and
Assistant Secretaries chair these agencies.

The Secretaries of Finance and Budget cannot sit in the Monetary Board.24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower
ranking employees in providing policy direction in the areas of money, banking and credit.25

Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution,
viewed as a continuously operative charter of government, is not to be interpreted as demanding the
impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided.26

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held
without additional compensation in ex-officio capacities as provided by law and as required by the primary
functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It
refers to an "authority derived from official character merely, not expressly conferred upon the individual
character, but rather annexed to the official position." Ex-officio likewise denotes an "act done in an official
character, or as a consequence of office, and without any other appointment or authority than that conferred
by the office."27 An ex-officio member of a board is one who is a member by virtue of his title to a certain
office, and without further warrant or appointment.28 To illustrate, by express provision of law, the Secretary
of Transportation and Communications is the ex-officioChairman of the Board of the Philippine Ports
Authority,29 and the Light Rail Transit Authority.30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and
Apparel Control and Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A.
3137) reveals that for the chairman and members of the Board to qualify they need only be designated by
the respective department heads. With the exception of the representative from the private sector, they
sit ex-officio. In order to be designated they must already be holding positions in the offices mentioned in the
law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot,
under the act, be designated a representative from that office. The same is true with respect to the
representatives from the other offices. No new appointments are necessary. This is as it should be, because
the representatives so designated merely perform duties in the Board in addition to those already performed
under their original appointments."32

The term "primary" used to describe "functions" refers to the order of importance and thus means chief or
principal function. The term is not restricted to the singular but may refer to the plural.33 The additional duties
must not only be closely related to, but must be required by the official's primary functions. Examples of
designations to positions by virtue of one's primary functions are the Secretaries of Finance and Budget
sitting as members of the Monetary Board, and the Secretary of Transportation and Communications acting
as Chairman of the Maritime Industry Authority34 and the Civil Aeronautics Board.

If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible,
or otherwise alien to the primary function of a cabinet official, such additional functions would fall under the
purview of "any other office" prohibited by the Constitution. An example would be the Press Undersecretary
sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule
applies to such positions which confer on the cabinet official management functions and/or monetary
compensation, such as but not limited to chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies
or assistants which are not inconsistent with those already prescribed by their offices or appointments by
virtue of their special knowledge, expertise and skill in their respective executive offices is a practice long-
recognized in many jurisdictions. It is a practice justified by the demands of efficiency, policy direction,
continuity and coordination among the different offices in the Executive Branch in the discharge of its
multifarious tasks of executing and implementing laws affecting national interest and general welfare and
delivering basic services to the people. It is consistent with the power vested on the President and his alter
egos, the Cabinet members, to have control of all the executive departments, bureaus and offices and to
ensure that the laws are faithfully executed.35 Without these additional duties and functions being assigned to
the President and his official family to sit in the governing bodies or boards of governmental agencies or
instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they
would be supervision, thereby deprived of the means for control and resulting in an unwieldy and confused
bureaucracy.

It bears repeating though that in order that such additional duties or functions may not transgress the
prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions
must be required by the primary functions of the official concerned, who is to perform the same in an ex-
officio capacity as provided by law, without receiving any additional compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the
official concerned has no right to receive additional compensation for his services in the said position. The
reason is that these services are already paid for and covered by the compensation attached to his principal
office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as
an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it
be in the form of a per them or an honorarium or an allowance, or some other such euphemism. By
whatever name it is designated, such additional compensation is prohibited by the Constitution.

It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod
to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the
exception "unless required by the functions of his position,"36 express reference to certain high-ranking
appointive public officials like members of the Cabinet were made.37 Responding to a query of Commissioner
Blas Ople, Commissioner Monsod pointed out that there are instances when although not required by
current law, membership of certain high-ranking executive officials in other offices and corporations is
necessary by reason of said officials' primary functions. The example given by Commissioner Monsod was
the Minister of Trade and Industry.38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying that
additional functions and duties flowing from the primary functions of the official may be imposed upon him
without offending the constitutional prohibition under consideration, it cannot, however, be taken as authority
for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two
Commissioners took place in the plenary session of September 27, 1986. Under consideration then was
Section 3 of Committee Resolution No. 531 which was the proposed article on General Provisions.39 At that
time, the article on the Civil Service Commission had been approved on third reading on July 22,
1986,40 while the article on the Executive Department, containing the more specific prohibition in Section 13,
had also been earlier approved on third reading on August 26, 1986.41 It was only after the draft Constitution
had undergone reformatting and "styling" by the Committee on Style that said Section 3 of the General
Provisions became Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by
the primary functions of his position. . . ."

What was clearly being discussed then were general principles which would serve as constitutional
guidelines in the absence of specific constitutional provisions on the matter. What was primarily at issue and
approved on that occasion was the adoption of the qualified and delimited phrase "primary functions" as the
basis of an exception to the general rule covering all appointive public officials. Had the Constitutional
Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it could have re-
worded said Section 13 to conform to the wider exceptions provided in then Section 3 of the proposed
general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission.

That this exception would in the final analysis apply also to the President and his official family is by reason
of the legal principles governing additional functions and duties of public officials rather than by virtue of
Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additional functions and duties
"required," as opposed to "allowed," by the primary functions may be considered as not constituting "any
other office."

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be
had only when other guides fail42 as said proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of
1âwphi1

the individual members, and as indicating the reasons for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the
polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from
what appears upon its face."43 The proper interpretation therefore depends more on how it was understood
by the people adopting it than in the framers's understanding thereof.44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the
President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their
tenure multiple offices or employment in the government, except in those cases specified in the Constitution
itself and as above clarified with respect to posts held without additional compensation in an ex-
officio capacity as provided by law and as required by the primary functions of their office, the citation of
Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule
laid down for all appointive officials should be considered as mere personal opinions which cannot override
the constitution's manifest intent and the people' understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of
the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly
restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may
hold in addition to their primary position to not more than two (2) positions in the government and
government corporations, Executive Order No. 284 actually allows them to hold multiple offices or
employment in direct contravention of the express mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a strict application
of the prohibition mandated under Section 13, Article VII on the operations of the Government, considering
that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their
primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the
executive official concerned without additional compensation as provided by law and as required by the
primary functions of his office do not fall under the definition of "any other office" within the contemplation of
the constitutional prohibition. With respect to other offices or employment held by virtue of legislation,
including chairmanships or directorships in government-owned or controlled corporations and their
subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real. Being
head of an executive department is no mean job. It is more than a full-time job, requiring full attention,
specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's
ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction
of other governmental offices or employment. He should be precluded from dissipating his efforts, attention
and energy among too many positions of responsibility, which may result in haphazardness and inefficiency.
Surely the advantages to be derived from this concentration of attention, knowledge and expertise,
particularly at this stage of our national and economic development, far outweigh the benefits, if any, that
may be gained from a department head spreading himself too thin and taking in more than what he can
handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary
of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government45 Luis
Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and
Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or employment, as
herein defined, in the government, including government-owned or controlled corporations and their
subsidiaries. With respect to the other named respondents, the petitions have become moot and academic
as they are no longer occupying the positions complained of.

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

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No.
284 is hereby declared null and void and is accordingly set aside.

SO ORDERED.

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 exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled
"I Accuse." He accused the petitioner of receiving some P220 million 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 exposẻ 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 Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar
Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led
by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as
defense counsel were former Chief Justice Andres Narvasa, former Solicitor General and Secretary of
Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the
House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was
covered by live TV and during its course enjoyed the highest viewing rating. Its high and low points were the
constant conversational piece of the chattering classes. The dramatic point of the December hearings was
the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she was
one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on documents involving
a P500 million investment agreement with their bank on February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it
resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that the
petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider
trading.16 Then came the fateful day of January 16, when by a vote of 11-1017 the senator-judges ruled
against the opening of the second envelope which allegedly contained evidence showing that petitioner held
P3.3 billion in a secret bank account under the name "Jose Velarde." The public and private prosecutors
walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.18 The ruling
made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By
midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against
the petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective
resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment
tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the impeachment
proceedings until the House of Representatives shall have resolved the issue of resignation of the public
prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of
people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in
Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation.
Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in
the continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more
people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed
Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the
Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President
where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National
Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the
EDSA Shrine.22 In the presence of former Presidents Aquino and Ramos and hundreds of thousands of
cheering demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong
members of the Armed Forces, we wish to announce that we are withdrawing our support to this
government."23 A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders
gave a similar stunning announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries,
and bureau chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his lawyers to
agree to the opening of the highly controversial second envelope.26There was no turning back the tide. The
tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful
and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive Secretary.
Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito
Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management
Staff, negotiated for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato
de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez.27 Outside
the palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted
in stone-throwing and caused minor injuries. The negotiations consumed all morning until the news broke
out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA
Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the
Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He issued the
following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

 At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of
the Republic of the Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her proclamation as President, I
do not wish to be a factor that will prevent the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of
our people with gratitude for the opportunities given to me for service to our people. I will not shirk
from any future challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national spirit of
reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another copy was
transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the
duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative
Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath
of Office as President of the Republic of the Philippines before the Chief Justice — Acting on the
urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the
Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court,
dated January 20, 2001, which request was treated as an administrative matter, the court Resolve
unanimously to confirm the authority given by the twelve (12) members of the Court then present to
the Chief Justice on January 20, 2001 to administer the oath of office of Vice President Gloria
Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.

This resolution is without prejudice to the disposition of any justiciable case that may be filed by a
proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed. On
January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic Corps, Papal
Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent
Arroyo.35 US President George W. Bush gave the respondent a telephone call from the White House
conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the
Philippines."38 It also approved Resolution No. 176 "expressing the support of the House of Representatives
to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, extending its congratulations and expressing its support for her administration as a partner in
the attainment of the nation's goals under the Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later, she
also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.42 The
next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator
Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted "yes" with
reservations, citing as reason therefor the pending challenge on the legitimacy of respondent Arroyo's
presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were
absent.44 The House of Representatives also approved Senator Guingona's nomination in Resolution No.
178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus
officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she voted
against the closure of the impeachment court on the grounds that the Senate had failed to decide on the
impeachment case and that the resolution left open the question of whether Estrada was still qualified to run
for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from
16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by the ABS-
CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President
Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by
60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao.
Her trust rating increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the
ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases
previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case
No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2)
OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for
plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of
Conduct for Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines
Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for
malversation of public funds, illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-
1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of
PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco,
Jr. on December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the
charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the
following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and
Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his
counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the
aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-
15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the
respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754,
1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the
term of petitioner as President is over and only if legally warranted." Thru another counsel, petitioner, on
February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the
lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties
of his office, and declaring respondent to have taken her oath as and to be holding the Office of the
President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on GR Nos.
146710-15, the Court, on the same day, February 6, required the respondents "to comment thereon within a
non-extendible period expiring on 12 February 2001." On February 13, the Court ordered the consolidation
of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents' comments "on or before 8:00
a.m. of February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief
Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of
petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that
they have "compromised themselves by indicating that they have thrown their weight on one side" but
nonetheless inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file
their memoranda and two (2) days to submit their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement
for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court
resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the
office of the President vacant and that neither did the Chief Justice issue a press statement justifying
the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain of being
cited for contempt to refrain from making any comment or discussing in public the merits of the
cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman
from resolving or deciding the criminal cases pending investigation in his office against petitioner,
Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the
respondent Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada
seven (7) days after the hearing held on February 15, 2001, which action will make the cases at bar
moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for
decision.

The bedrock issues for resolution of this Court are:

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 which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon the wisdom,
not legality of a particular measure." To a great degree, the 1987 Constitution has narrowed the reach of
the political question doctrine when it expanded the power of judicial review of this court not only 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.60With the
new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In sync
and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political
thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid
language to "x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or
the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that since the cases at bar
involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A
more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that
the government of former President Aquino was the result of a successful revolution by the sovereign
people, albeit a peaceful one. No less than the Freedom Constitution63 declared that the Aquino
government was installed through a direct exercise of the power of the Filipino people "in defiance of the
provisions of the 1973 Constitution, as amended." In is familiar learning that the legitimacy of a
government sired by a successful revolution by people power is beyond judicial scrutiny for that government
automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent
Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987 Constitution.
Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the
1987 Constitution. 1âwphi1.nêt

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole government. EDSA
II is an exercise of people power of freedom of speech and freedom of assembly to petition the
government for redress of grievances which only affected the office of the President. EDSA I is extra
constitutional and the legitimacy of the new government that resulted from it cannot be the subject of
judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused
and the succession of the Vice President as President are subject to judicial review. EDSA I presented a
political question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the
freedom of assembly to petition the government for redress of grievance which are the cutting edge of
EDSA People Power II is not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of
the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for
the recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus
non."65 The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its
Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally
or in writing, through the use of the press or other similar means; (2) of the right of association for purposes
of human life and which are not contrary to public means; and (3) of the right to send petitions to the
authorities, individually or collectively." These fundamental rights were preserved when the United
States acquired jurisdiction over the Philippines. In the Instruction to the Second Philippine Commission
of April 7, 1900 issued by President McKinley, it is specifically provided "that no law shall be passed
abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and
petition the Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the
Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution. These
rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident.
The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring
individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third,
it is essential to provide for participation in decision-making by all members of society; and fourth, it is a
method of achieving a more adaptable and hence, a more stable community of maintaining the precarious
balance between healthy cleavage and necessary consensus."69 In this sense, freedom of speech and of
assembly provides a framework in which the "conflict necessary to the progress of a society can
take place without destroying the society."70In Hague v. Committee for Industrial Organization,71 this
function of free speech and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee
of the American Bar Association which emphasized that "the basis of the right of assembly is the substitution
of the expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that "… it
should be clear even to those with intellectual deficits that when the sovereign people assemble to petition
for redress of grievances, all should listen. For in a democracy, it is the people who count; those who
are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution
require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article
II,74 and section 875 of Article VII, and the allocation of governmental powers under section 1176 of Article VII.
The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the
correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury
v. Madison,77 the doctrine has been laid down that "it is emphatically the province and duty of the
judicial department to say what the law is . . ." Thus, respondent's in vocation of the doctrine of political
question is but a foray in the dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political question.
Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case
and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a
permanent disability. Hence, he submits that the office of the President was not vacant when respondent
Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the President,
the Vice President shall become the President to serve the unexpired term. In case of death,
permanent disability, removal from office, or resignation of both the President and Vice President,
the President of the Senate or, in case of his inability, the Speaker of the House of Representatives,
shall then act as President until the President or Vice President shall have been elected and
qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as of
January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a
high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an
intent to resign and the intent must be coupled by acts of relinquishment.78 The validity of a resignation
is not government by any formal requirement as to form. It can be oral. It can be written. It can be express. It
can be implied. As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he
evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent
Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and omissions
before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior
facts and circumstantial evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the
succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of Representatives
which initially was given a near cipher chance of succeeding snowballed. In express speed, it gained the
signatures of 115 representatives or more than 1/3 of the House of Representatives. Soon, petitioner's
powerful political allies began deserting him. Respondent Arroyo quit as Secretary of Social Welfare. Senate
President Drilon and former Speaker Villar defected with 47 representatives in tow. Then, his respected
senior economic advisers resigned together with his Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call
reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the
second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the
EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew
exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive
Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning
of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at EDSA, hence, they
decided to create an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled
Secretary Angara into his small office at the presidential residence and exclaimed: "Ed, seryoso na ito.
Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)"80 An hour later or at 2:30 p.m., the
petitioner decided to call for a snap presidential election and stressed he would not be a candidate. The
proposal for a snap election for president in May where he would not be a candidate is an indicium
that petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes
joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically
announced the AFP's withdrawal of support from the petitioner and their pledge of support to respondent
Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and
dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go abroad
with enough funds to support him and his family.83 Significantly, the petitioner expressed no objection to
the suggestion for a graceful and dignified exit but said he would never leave the country.84 At 10:00
p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to
a week in the palace."85 This is proof that petitioner had reconciled himself to the reality that he had to
resign. His mind was already concerned with the five-day grace period he could stay in the palace. It was
a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and
requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and
orderly transfer of power."86 There was no defiance to the request. Secretary Angara readily agreed.
Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of
power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of
January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period
of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family,
and (3) the agreement to open the second envelope to vindicate the name of the petitioner.87 Again, we
note that the resignation of petitioner was not a disputed point. The petitioner cannot feign
ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three
points and the following entry in the Angara Diary shows the reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately stresses
that he just wants the five-day period promised by Reyes, as well as to open the second envelope
to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako
sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this – it's too
painful. I'm tired of the red tape, the bureaucracy, the intrigue.)
 I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he
said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following
happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For
this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will be
effective on Wednesday, 24 January 2001, on which day the Vice President will assume the
Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various positions
and offices of the government shall start their orientation activities in coordination with the incumbent
officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function under the
Vice President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the
President and his family as approved by the national military and police authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the alleged
savings account of the President in the Equitable PCI Bank in accordance with the rules of the
Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake as
follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President
Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their person
and property throughout their natural lifetimes. Likewise, President Estrada and his families are
guarantee freedom from persecution or retaliation from government and the private sector
throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the
Chief of Staff, as approved by the national military and police authorities – Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the subject
savings account does not belong to President Estrada.
 '4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing from the
outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice
President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the
necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that
during this second round of negotiation, the resignation of the petitioner was again treated as a given fact.
The only unsettled points at that time were the measures to be undertaken by the parties during and after
the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner
was further refined. It was then, signed by their side and he was ready to fax it to General Reyes and
Senator Pimentel to await the signature of the United Opposition. However, the signing by the party of the
respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five points to
effect a peaceful transition. I can hear the general clearing all these points with a group he is with. I
hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall
be effective on 24 January 2001, on which day the Vice President will assume the presidency of the
Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government positions
shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and
security of the President and his families throughout their natural lifetimes as approved by the
national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as
national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the impeachment
trial, the contents of which shall be offered as proof that the subject savings account does not belong
to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex "B"
heretofore attached to this agreement.
11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our
side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria
Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about
the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter is
already moot and academic. Within moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and General
Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the
other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and Cabinet
members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the
PSG is there to protect the Palace, since the police and military have already withdrawn their
support for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's personal
possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement before
leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took
her oath as President of the Republic of the Philippines. While along with many other legal minds of
our country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and
order in our civil society.
 It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of
our people with gratitude for the opportunities given to me for service to our people. I will not shirk
from any future challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national spirit of
reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving
Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the
respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing
process of our nation. He did not say he was leaving the Palace due to any kind inability and that he was
going to re-assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to the
people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to
serve the people as President (4) he assured that he will not shirk from any future challenge that may come
ahead in the same service of our country. Petitioner's reference is to a future challenge after occupying the
office of the president which he has given up; and (5) he called on his supporters to join him in the promotion
of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation
and solidarity could not be attained if he did not give up the presidency. The press release was petitioner's
valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20,
2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer
to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the cases
at bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did the
counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes the
Court as strange that the letter, despite its legal value, was never referred to by the petitioner during the
week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final press
release. It was all too easy for him to tell the Filipino people in his press release that he was temporarily
unable to govern and that he was leaving the reins of government to respondent Arroyo for the time bearing.
Under any circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it
was prepared before the press release of the petitioner clearly as a later act. If, however, it was prepared
after the press released, still, it commands scant legal significance. Petitioner's resignation from the
presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is
the result of his reputation by the people. There is another reason why this Court cannot given any legal
significance to petitioner's letter and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign
as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt
Practices Act, which allegedly prohibits his resignation, viz:
 "Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or
administrative, or pending a prosecution against him, for any offense under this Act or under the
provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No.
3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate,
did not contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship
speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the period of
amendments the inclusion of a provision to the effect that no public official who is under prosecution for any
act of graft or corruption, or is under administrative investigation, shall be allowed to voluntarily resign or
retire."92 During the period of amendments, the following provision was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending an
investigation, criminal or administrative, or pending a prosecution against him, for any offense under
the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his prosecution under
this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph
of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15
above became section 13 under the new bill, but the deliberations on this particular provision mainly focused
on the immunity of the President, which was one of the reasons for the veto of the original bill. There was
hardly any debate on the prohibition against the resignation or retirement of a public official with pending
criminal and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It
is to prevent the act of resignation or retirement from being used by a public official as a protective shield to
stop the investigation of a pending criminal or administrative case against him and to prevent his prosecution
under the Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person
can be compelled to render service for that would be a violation of his constitutional right.94 A public official
has the right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or
retires, a public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He cannot
use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the records
show that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman
were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have
been filed, the respondent Ombudsman refrained from conducting the preliminary investigation of the
petitioner for the reason that as the sitting President then, petitioner was immune from suit. Technically, the
said cases cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section
12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose
investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a
sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under section
12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment
proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not be
considered pending at the time petitioner resigned because the process already broke down when a majority
of the senator-judges voted against the opening of the second envelope, the public and private prosecutors
walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the
proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against
petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the
powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is
contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel
and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the
petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress
has the ultimate authority under the Constitution to determine whether the President is incapable of
performing his functions in the manner provided for in section 11 of article VII."95 This contention is
the centerpiece of petitioner's stance that he is a President on leave and respondent Arroyo is only an
Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the
House of Representatives his written declaration that he is unable to discharge the powers and
duties of his office, and until he transmits to them a written declaration to the contrary, such powers
and duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and
to the Speaker of the House of Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Vice-President shall immediately assume the
powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of the
House of Representatives his written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet
transmit within five days to the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable to discharge the powers and
duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall
convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need
of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within
twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and duties of his office, the Vice-
President shall act as President; otherwise, the President shall continue exercising the powers and
duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on January 20,
2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001
House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE

ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS
AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE
ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION
 WHEREAS, as a consequence of the people's loss of confidence on the ability of former President
Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine
National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief
Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended their
recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the
Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national
healing and reconciliation with justice for the purpose of national unity and development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided,
thus by reason of the constitutional duty of the House of Representatives as an institution and that of
the individual members thereof of fealty to the supreme will of the people, the House of
Representatives must ensure to the people a stable, continuing government and therefore must
remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the
nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of
national reconciliation and solidarity as it is a direct representative of the various segments of the
whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for
the House of Representatives to extend its support and collaboration to the administration of Her
Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building,
the national interest demanding no less: Now, therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into office by
Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as a partner in the attainment of the
Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF

SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of
both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility and
patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship,
having served the government in various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice,
Senator of the Philippines – qualities which merit his nomination to the position of Vice President of
the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President
of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the
Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for meaningful
change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of
purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity
despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF

SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of
both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence
and courage; who has served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having
served the government in various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice,
Senator of the land - which qualities merit his nomination to the position of Vice President of the
Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T.
Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which
states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus
officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday,
January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second envelope" be
transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with
the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval
of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

 (Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the
Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with
the regular election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13th) highest
number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as
President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any
sector of government, and without any support from the Armed Forces of the Philippines and the Philippine
National Police, the petitioner continues to claim that his inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized
respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the
inability of petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's
claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability of
petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this Court
cannot exercise its judicial power or this is an issue "in regard to which full discretionary authority has been
delegated to the Legislative xxx branch of the government." Or to use the language in Baker vs.
Carr,103 there is a "textually demonstrable or a lack of judicially discoverable and manageable standards for
resolving it." Clearly, the Court cannot pass upon petitioner's claim of inability to discharge the power and
duties of the presidency. The question is political in nature and addressed solely to Congress by
constitutional fiat. It is a political issue, which cannot be decided by this Court without transgressing the
principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that
he is a President on leave on the ground that he is merely unable to govern temporarily. That claim
has been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president
made by a co-equal branch of government cannot be reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings
against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen,
sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R.
Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages
for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr.
Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority
to touch the acts of the Governor-General; that he may, under cover of his office, do what he will,
unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the
 execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean, either that a person injured by
the executive authority by an act unjustifiable under the law has n remedy, but must submit in
silence. On the contrary, it means, simply, that the governors-general, like the judges if the courts
and the members of the Legislature, may not be personally mulcted in civil damages for the
consequences of an act executed in the performance of his official duties. The judiciary has full
power to, and will, when the mater is properly presented to it and the occasion justly warrants it,
declare an act of the Governor-General illegal and void and place as nearly as possible in status quo
any person who has been deprived his liberty or his property by such act. This remedy is assured to
every person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can not do is
mulct the Governor-General personally in damages which result from the performance of his official
duty, any more than it can a member of the Philippine Commission of the Philippine Assembly.
Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally sued at
all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears
from the discussion heretofore had, particularly that portion which touched the liability of judges and
drew an analogy between such liability and that of the Governor-General, that the latter is liable
when he acts in a case so plainly outside of his power and authority that he can not be said to have
exercised discretion in determining whether or not he had the right to act. What is held here is that
he will be protected from personal liability for damages not only when he acts within his authority, but
also when he is without authority, provided he actually used discretion and judgement, that is, the
judicial faculty, in determining whether he had authority to act or not. In other words, in determining
the question of his authority. If he decide wrongly, he is still protected provided the question of his
authority was one over which two men, reasonably qualified for that position, might honestly differ;
but he s not protected if the lack of authority to act is so plain that two such men could not honestly
differ over its determination. In such case, be acts, not as Governor-General but as a private
individual, and as such must answer for the consequences of his act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from
suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the chief executive
spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the state
and for the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the
integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then
came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973
Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity.
Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie
for official acts done by him or by others pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article XVII of
this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's
Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel, former
Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this
constitutional amendment on the existing law on executive privilege. To quote his disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the
absolute immunity concept. First, we extended it to shield the President not only form civil claims but
also from criminal cases and other claims. Second, we enlarged its scope so that it would cover
even acts of the President outside the scope of official duties. And third, we broadened its coverage
so as to include not only the President but also other persons, be they government officials or private
 individuals, who acted upon orders of the President. It can be said that at that point most of us were
suffering from AIDS (or absolute immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of
Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos
violated the principle that a public office is a public trust. He denounced the immunity as a return to the
anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power
revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive
immunity provision of the 1973 Constitution. The following explanation was given by delegate J.
Bernas vis:108

"Mr. Suarez. Thank you.

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

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

Mr. Suarez. So there is no need to express it here.

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

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he
cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The
impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that
led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83
"Recognizing that the Impeachment Court is Functus Officio."109 Since, the Impeachment Court is now
functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted
before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a
submission has nothing to commend itself for it will place him in a better situation than a non-sitting
President who has not been subjected to impeachment proceedings and yet can be the object of a criminal
prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil cases
may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President,
for example, and the President resigns before judgement of conviction has been rendered by the
impeachment court or by the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?
 Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the criminal
and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune from
suit or from being brought to court during the period of their incumbency and tenure" but not beyond.
Considering the peculiar circumstance that the impeachment process against the petitioner has been
aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non
to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings.
His reliance on the case of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they have a
different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The
cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and
corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death
penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any
decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure
immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful
acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer
who acts illegally is not acting as such but stands in the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to
expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In
the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to
produce certain recordings and documents relating to his conversations with aids and advisers. Seven
advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other
offenses, which were committed in a burglary of the Democratic National Headquarters in Washington's
Watergate Hotel during the 972 presidential campaign. President Nixon himself was named an unindicted
co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the
President was not subject to judicial process and that he should first be impeached and removed from office
before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme
Court. It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use
in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal justice." In the 1982 case of
Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate this
doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from suits for
money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our
jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.118 It
declared as a state policy that "the State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruptio."119 it ordained that "public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency act with patriotism and justice, and lead modest lives."120 It set the rule that 'the right of
the State to recover properties unlawfully acquired by public officials or employees, from them or from their
nominees or transferees, shall not be barred by prescription, latches or estoppel."121 It maintained the
Sandiganbayan as an anti-graft court.122 It created the office of the Ombudsman and endowed it with
enormous powers, among which is to "investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such act or omission appears to be illegal,
unjust improper or inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These
constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys
immunity from suit for criminal acts committed during his incumbency.

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

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal
trials both here and in England had long been presumptively open, thus giving assurance
that the proceedings were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized when a shocking
crime occurs a community reaction of outrage and public protest often follows, and thereafter
the open processes of justice serve an important prophylactic purpose, providing an outlet
for community concern, hostility and emotion. To work effectively, it is important that
society's criminal process satisfy the appearance of justice,' Offutt v. United States, 348 US
11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe
such process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness inheres in
the very nature of a criminal trial under this Nation's system of justice, Cf., e,g., Levine v.
United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedom such as those of
speech and press, the First Amendment can be read as protecting the right of everyone to
attend trials so as give meaning to those explicit guarantees; the First Amendment right to
receive information and ideas means, in the context of trials, that the guarantees of speech
and press, standing alone, prohibit government from summarily closing courtroom doors
which had long been open to the public at the time the First Amendment was adopted.
Moreover, the right of assembly is also relevant, having been regarded not only as an
independent right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which the draftsmen deliberately linked it. A trial courtroom is a public
place where the people generally and representatives of the media have a right to be
present, and where their presence historically has been thought to enhance the integrity and
quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly guaranteed,
have been recognized as indispensable to the enjoyment of enumerated rights. The right to
attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom
to attend such trials, which people have exercised for centuries, important aspects of
freedom of speech and of the press be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances
can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et
al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that
 the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In
the case at bar, we find nothing in the records that will prove that the tone and content of the
publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of
the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of
fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the
DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their
long experience in criminal investigation is a factor to consider in determining whether they can
easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no
indubitable indicia of bias for it does not appear that they considered any extra-record evidence
except evidence properly adduced by the parties. The length of time the investigation was conducted
despite its summary nature and the generosity with which they accommodated the discovery
motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias resulting from their
bombardment of prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer
more than hostile headlines to discharge his burden of proof.131 He needs to show more weighty social
science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well
to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of
prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have already been infected by bias because of
the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings
and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote
petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of slanted news
reports, and he has buckled to the threats and pressures directed at him by the mobs."132 News reports have
also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the
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.

G.R. No. 88211 October 27, 1989

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

IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its
President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign
Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National
Defense and Chief of Staff, respectively, respondents.

RESOLUTION

EN BANC:

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

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

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

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 the specific power of legislation.

4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is
to protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses
and subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in
compliance with this bounden duty. In the absence of a clear showing that she had acted with arbitrariness
or with grave abuse of discretion in arriving at this decision, the Court will not enjoin the implementation of
this decision.

ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."

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 buriedin 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 argument—so conducive to mass protests and even violence—that 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 buriedin 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 argument—so conducive to mass protests and even violence—that their Idol has been
cruelly denied the right to be buried in his homeland.

It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This
contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr. Marcos, as a
Filipino, to be buried in this country, is asserted not for the first time after his death. It was vigorously
asserted long before his death. But, more importantly, the right of every Filipino to be buried in his country, is
part of a continuing right that starts from birth and ends only on the day he is finally laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down conditions
for the burial of Mr. Marcos in this country, but I submit that these conditions must, as a fundamental
postulate, recognize the right of the man, as a Filipino, to be buried in this country NOW.

The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way affecting
my respect and regard for my brethren and sisters in the majority, I am deeply concerned and greatly
disturbed that, with their decision banning a dead Marcos from burial in this country, they have passed an
opportunity to defuse a constitutional crisis that, in my humble assessment, threatens to ignite an already
divided nation, Regrettably, they have ignored the constitutional dimension of the problem rooted in the
ageless and finest tradition of our people for respect and deference to the dead. What predictably follows will
be a continuing strife, among our people, of unending hatred, recriminations and retaliations. God save this
country!

My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the Republic
of the Philippines of former President Ferdinand E. Marcos, subject to such conditions as the Philippine
government may impose in the interest of peace and order.

SARMIENTO, J., Dissenting:

The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before, I can
not allow personal emotions to soften my "hardened impartiality" and deny, as a consequence, the rights of
the ex-President's bereaved to bury his remains in his homeland, and for them to return from exile. As I had,
then, voted to grant the petition, so do I vote to grant reconsideration.

I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by implication, the
President's supposed "residual" power to forbid citizens from entering the motherland reiterated in the
resolution of the majority. I have found none. I am not agreed, that:

3. Contrary to petitioners view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This, notwithstanding
the avowed intent of the members of the Constitutional Commission of 1986 to limit the
powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the
result was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive power.

It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on specific
powers of the President, it has, a fortiori, prescribed a diminution of executive power. The Charter says that
the right may only be restricted by: (1) a court order; or (2) by fiat of law. Had the fundamental law intended
a presidential imprimatur, it would have said so. It would have also completed the symmetry: judicial,
congressional, and executive restraints on the right. No amount of presumed residual executive power can
amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And especially so,
because the President is the caretaker of the military establishment that has, several times over, been
unkind to part of the population it has also sworn to protect.

That "[t]he threats to the government, to which the return of the Marcoses has been viewed to provide a
catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of conjecture, speculation, and
imagination. The military has shown no hard evidence that "the return of the Marcoses" would indeed
interpose a threat to national security. And apparently, the majority itself is not convinced ("has been
viewed...").

That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I
submit, reinforce alleged fears of a massive destabilization awaiting the nation. The military has said over
and over that Marcos followers are not capable of successful destabilization effort. And only this morning
(October 27, 1989), media reported the assurances given to foreign investors by no less than the President,
of the political and economic stability of the nation, as well as the Government's capability to quell forces that
menace the gains of EDSA.

I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are beside the
point. I reiterate that the President has no power to deny requests of Marcos relatives to bury Marcos in his
homeland. As for the former, let them get their just deserts here too. And let the matter rest.

G.R. No. 149036 April 2, 2002

MA. J. ANGELINA G. MATIBAG, petitioner,

vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J.
CINCO, and GIDEON C. DE GUZMAN in his capacity as Officer-In-Charge, Finance Services
Department of the Commission on Elections, respondents.

CARPIO, J.:

The Case

Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction
and a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J.
Angelina G. Matibag ("Petitioner" for brevity) questions the constitutionality of the appointment and the right
to hold office of the following: (1) Alfredo L. Benipayo ("Benipayo" for brevity) as Chairman of the
Commission on Elections ("COMELEC" for brevity); and (2) Resurreccion Z. Borra ("Borra" for brevity) and
Florentino A. Tuason, Jr. ("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions the
legality of the appointment of Velma J. Cinco1 ("Cinco" for brevity) as Director IV of the COMELEC’s
Education and Information Department ("EID" for brevity).

The Facts

On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID. On
February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as
Director IV of EID in a "Temporary" capacity. On February 15, 2001, Commissioner Rufino S.B. Javier
renewed again the appointment of petitioner to the same position in a "Temporary" capacity.2

On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC
Chairman,3and Borra4 and Tuason5 as COMELEC Commissioners, each for a term of seven years and all
expiring on February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC
Chairman. Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC
Commissioners. The Office of the President submitted to the Commission on Appointments on May 22,
2001 the ad interim appointments of Benipayo, Borra and Tuason for confirmation.6 However, the
Commission on Appointments did not act on said appointments.

On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to
the same positions and for the same term of seven years, expiring on February 2, 2008.7 They took their
oaths of office for a second time. The Office of the President transmitted on June 5, 2001 their appointments
to the Commission on Appointments for confirmation.8

Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on
June 8, 2001, President Macapagal Arroyo renewed again the ad interim appointments of Benipayo, Borra
and Tuason to the same positions.9 The Office of the President submitted their appointments for confirmation
to the Commission on Appointments.10 They took their oaths of office anew.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 200111 addressed
to petitioner as Director IV of the EID and to Cinco as Director III also of the EID, designating Cinco Officer-
in-Charge of the EID and reassigning petitioner to the Law Department. COMELEC EID Commissioner-in-
Charge Mehol K. Sadain objected to petitioner’s reassignment in a Memorandum dated April 14,
200112 addressed to the COMELEC en banc. Specifically, Commissioner Sadain questioned Benipayo’s
failure to consult the Commissioner-in-Charge of the EID in the reassignment of petitioner.

On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her
reassignment to the Law Department.13 Petitioner cited Civil Service Commission Memorandum Circular No.
7 dated April 10, 2001, reminding heads of government offices that "transfer and detail of employees are
prohibited during the election period beginning January 2 until June 13, 2001." Benipayo denied her request
for reconsideration on April 18, 2001,14 citing COMELEC Resolution No. 3300 dated November 6, 2000,
which states in part:

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the changes in the assignment of its
field personnel within the thirty-day period before election day shall be effected after due notice and
hearing."

Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a
Memorandum dated April 23, 2001.15 Petitioner also filed an administrative and criminal complaint16 with the
Law Department17 against Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus
Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and
other pertinent administrative and civil service laws, rules and regulations.

During the pendency of her complaint before the Law Department, petitioner filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman
and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments of
Benipayo, Borra and Tuason violate the constitutional provisions on the independence of the COMELEC, as
well as on the prohibitions on temporary appointments and reappointments of its Chairman and members.
Petitioner also assails as illegal her removal as Director IV of the EID and her reassignment to the Law
Department. Simultaneously, petitioner challenges the designation of Cinco as Officer-in-Charge of the EID.
Petitioner, moreover, questions the legality of the disbursements made by COMELEC Finance Services
Department Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and
other emoluments.

In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad
interimappointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners,
respectively, for a term of seven years expiring on February 2, 2008.18 They all took their oaths of office
anew.

The Issues

The issues for resolution of this Court are as follows:

1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power
of judicial review in constitutional cases;

2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad
interimappointments issued by the President amounts to a temporary appointment prohibited by Section 1
(2), Article IX-C of the Constitution;

3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and
Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent assumption
of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of
the Constitution;
4. Whether or not Benipayo’s removal of petitioner from her position as Director IV of the EID and her
reassignment to the Law Department is illegal and without authority, having been done without the approval
of the COMELEC as a collegial body;

5. Whether or not the Officer-in-Charge of the COMELEC’s Finance Services Department, in continuing to
make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its
power of judicial review in constitutional cases. Out of respect for the acts of the Executive department,
which is co-equal with this Court, respondents urge this Court to refrain from reviewing the constitutionality
of the ad interim appointments issued by the President to Benipayo, Borra and Tuason unless all the four
requisites are present. These are: (1) the existence of an actual and appropriate controversy; (2) a personal
and substantial interest of the party raising the constitutional issue; (3) the exercise of the judicial review is
pleaded at the earliest opportunity; and (4) the constitutional issue is the lis mota of the case.19 Respondents
argue that the second, third and fourth requisites are absent in this case. Respondents maintain that
petitioner does not have a personal and substantial interest in the case because she has not sustained a
direct injury as a result of the ad interim appointments of Benipayo, Borra and Tuason and their assumption
of office. Respondents point out that petitioner does not claim to be lawfully entitled to any of the positions
assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to be directly injured by the
appointments of these three respondents.

Respondents also contend that petitioner failed to question the constitutionality of the ad
interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite
the fact that the ad interimappointments of Benipayo, Borra and Tuason were issued as early as March 22,
2001. Moreover, the petition was filed after the third time that these three respondents were issued ad
interim appointments.

Respondents insist that the real issue in this case is the legality of petitioner’s reassignment from the EID to
the Law Department. Consequently, the constitutionality of the ad interim appointments is not the lis mota of
this case.

We are not persuaded.

Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where
she was placed on detail service.20 Respondents claim that the reassignment was "pursuant to x x x
Benipayo’s authority as Chairman of the Commission on Elections, and as the Commission’s Chief
Executive Officer."21 Evidently, respondents anchor the legality of petitioner’s reassignment on Benipayo’s
authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is the lawful
Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is
without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by the Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance
with the Constitution, then petitioner’s reassignment is legal and she has no cause to complain provided the
reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and material
stake in the resolution of the constitutionality of Benipayo’s assumption of office. Petitioner’s personal and
substantial injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with the requisite locus
standi to raise the constitutional issue in this petition.

Respondents harp on petitioner’s belated act of questioning the constitutionality of the ad

interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3,
2001, when the first ad interimappointments were issued as early as March 22, 2001. However, it is not the
date of filing of the petition that determines whether the constitutional issue was raised at the earliest
opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same, such that, "if it is not raised in the pleadings, it cannot be
considered at the trial, and, if not considered at the trial, it cannot be considered on appeal."22 Petitioner
questioned the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when she
filed her petition before this Court, which is the earliest opportunity for pleading the constitutional issue
before a competent body. Furthermore, this Court may determine, in the exercise of sound discretion, the
time when a constitutional issue may be passed upon.23 There is no doubt petitioner raised the constitutional
issue on time.

Moreover, the legality of petitioner’s reassignment hinges on the constitutionality of Benipayo’s ad

interimappointment and assumption of office. Unless the constitutionality of Benipayo’s ad
interim appointment and assumption of office is resolved, the legality of petitioner’s reassignment from the
EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very constitutional
issue raised by petitioner.

In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the
directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may
be put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this Court’s
duty to determine whether other agencies of government have remained within the limits of the Constitution
and have not abused the discretion given them, this Court may even brush aside technicalities of procedure
and resolve any constitutional issue raised.24 Here the petitioner has complied with all the requisite
technicalities. Moreover, public interest requires the resolution of the constitutional issue raised by petitioner.

Second Issue: The Nature of an Ad Interim Appointment

Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is
prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows:

"The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two Members for five years, and the last Members for three
years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity."
(Emphasis supplied)

Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at
her pleasure, and can even be disapproved or simply by-passed by the Commission on Appointments. For
this reason, petitioner claims that an ad interim appointment is temporary in character and consequently
prohibited by the last sentence of Section 1 (2), Article IX-C of the Constitution.

Based on petitioner’s theory, there can be no ad interim appointment to the COMELEC or to the other two
constitutional commissions, namely the Civil Service Commission and the Commission on Audit. The last
sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D
providing for the creation of the Civil Service Commission and the Commission on Audit, respectively.
Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee
cannot assume office until his appointment is confirmed by the Commission on Appointments for only then
does his appointment become permanent and no longer temporary in character.

The rationale behind petitioner’s theory is that only an appointee who is confirmed by the Commission on
Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond the
influence of the President or members of the Commission on Appointments since his appointment can no
longer be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of both the
appointing and confirming powers since his appointment can be terminated at any time for any cause. In the
words of petitioner, a Sword of Damocles hangs over the head of every appointee whose confirmation is
pending with the Commission on Appointments.

We find petitioner’s argument without merit.

An ad interim appointment is a permanent appointment because it takes effect immediately and can no
longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject
to confirmation by the Commission on Appointments does not alter its permanent character. The
Constitution itself makes an ad interim appointment permanent in character by making it effective until
disapproved by the Commission on Appointments or until the next adjournment of Congress. The second
paragraph of Section 16, Article VII of the Constitution provides as follows:

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

Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying
that it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or
revoke at any time and for any reason an ad interim appointment is utterly without basis.

More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in
character. In Summers vs. Ozaeta,25 decided on October 25, 1948, we held that:

"x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII
of the Constitution, which provides that the ‘President shall have the power to make appointments
during the recess of the Congress, but such appointments shall be effective only until disapproval by
the Commission on Appointments or until the next adjournment of the Congress.’ It is an
appointment permanent in nature, and the circumstance that it is subject to confirmation by the
Commission on Appointments does not alter its permanent character. An ad interim appointment is
disapproved certainly for a reason other than that its provisional period has expired. Said
appointment is of course distinguishable from an ‘acting’ appointment which is merely temporary,
good until another permanent appointment is issued." (Emphasis supplied)

The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad
interimappointment takes effect immediately. The appointee can at once assume office and exercise, as
a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on
Appointments,26 this Court elaborated on the nature of an ad interim appointment as follows:

"A distinction is thus made between the exercise of such presidential prerogative requiring
confirmation by the Commission on Appointments when Congress is in session and when it is in
recess. In the former, the President nominates, and only upon the consent of the Commission on
Appointments may the person thus named assume office. It is not so with reference to ad interim
appointments. It takes effect at once. The individual chosen may thus qualify and perform his
function without loss of time. His title to such office is complete. In the language of the Constitution,
the appointment is effective ‘until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.’"

Petitioner cites Black’s Law Dictionary which defines the term "ad interim" to mean "in the meantime" or "for
the time being." Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in
character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila
vs. Intermediate Appellate Court,27 where we explained that:

"x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding
the situation. Private respondent had been extended several ‘ad interim’ appointments which petitioner
mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word
‘ad interim’ which creates such belief. The term is defined by Black to mean "in the meantime" or "for the
time being". Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the
office during the absence or temporary incapacity of its regular incumbent (Black’s Law Dictionary, Revised
Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In
referring to Dr. Esteban’s appointments, the term is not descriptive of the nature of the appointments given
to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the
President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the
University Charter with the power of appointment, is unable to act. x x x." (Emphasis supplied)

Thus, the term "ad interim appointment", as used in letters of appointment signed by the President, means a
permanent appointment made by the President in the meantime that Congress is in recess. It does not
mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found
in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The
Court had again occasion to explain the nature of an ad interim appointment in the more recent case
of Marohombsar vs. Court of Appeals,28where the Court stated:

"We have already mentioned that an ad interim appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the appointment is temporary or in an acting
capacity, rather it denotes the manner in which the appointment was made. In the instant case, the
appointment extended to private respondent by then MSU President Alonto, Jr. was issued without
condition nor limitation as to tenure. The permanent status of private respondent’s appointment as
Executive Assistant II was recognized and attested to by the Civil Service Commission Regional
Office No. 12. Petitioner’s submission that private respondent’s ad interim appointment is
synonymous with a temporary appointment which could be validly terminated at any time is clearly
untenable. Ad interim appointments are permanent but their terms are only until the Board
disapproves them." (Emphasis supplied)

An ad interim appointee who has qualified and assumed office becomes at that moment a government
employee and therefore part of the civil service. He enjoys the constitutional protection that "[n]o officer or
employee in the civil service shall be removed or suspended except for cause provided by law."29 Thus,
an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office.
The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the
appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to
removal from office.30 Once an appointee has qualified, he acquires a legal right to the office which is
protected not only by statute but also by the Constitution. He can only be removed for cause, after notice
and hearing, consistent with the requirements of due process.

An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is
the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the
adjournment of Congress without the Commission on Appointments acting on his appointment. These two
causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments.
These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad
interim appointees. No one, however, can complain because it is the Constitution itself that places the
Sword of Damocles over the heads of the ad interimappointees.

While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or
designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing
power.31A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is
the kind of appointment that the Constitution prohibits the President from making to the three independent
constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,32 this Court struck down
as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee
Yorac as Acting Chairperson of the COMELEC. This Court ruled that:

"A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable
at will. No cause need be established to justify its revocation. Assuming its validity, the designation
of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the
President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the
respondent, having accepted such designation, will not be estopped from challenging its withdrawal.

xxx

The Constitution provides for many safeguards to the independence of the Commission on
Elections, foremost among which is the security of tenure of its members. That guarantee is not
available to the respondent as Acting Chairman of the Commission on Elections by designation of
the President of the Philippines."

Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution, which did not have a
provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless declared
unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court
ruled that the designation of an acting Commissioner would undermine the independence of the COMELEC
and hence violate the Constitution. We declared then: "It would be more in keeping with the intent, purpose
and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to
act temporarily." (Emphasis supplied)

In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the
COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason
were extended permanent appointments during the recess of Congress. They were not appointed or
designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs.
Yorac34 and Solicitor General Felix Bautista in Nacionalista Party vs. Bautista.35 The ad interim appointments
of Benipayo, Borra and Tuason are expressly allowed by the Constitution which authorizes the President,
during the recess of Congress, to make appointments that take effect immediately.

While the Constitution mandates that the COMELEC "shall be independent"36 , this provision should be
harmonized with the President’s power to extend ad interim appointments. To hold that the independence of
the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the President’s power to make ad interim appointments. This is
contrary to the rule on statutory construction to give meaning and effect to every provision of the law. It will
also run counter to the clear intent of the framers of the Constitution.

The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to
confirmation by the Commission on Appointments - did not provide for ad interim appointments. The original
intention of the framers of the Constitution was to do away with ad interim appointments because the plan
was for Congress to remain in session throughout the year except for a brief 30-day compulsory recess.
However, because of the need to avoid disruptions in essential government services, the framers of the
Constitution thought it wise to reinstate the provisions of the 1935 Constitution on ad interim appointments.
The following discussion during the deliberations of the Constitutional Commission elucidates this:

"FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it
necessary to provide for ad interim appointments? Perhaps there should be a little discussion on
that.

xxx

MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in
terms of anticipating interruption of government business, considering that we are not certain of the
length of involuntary recess or adjournment of the Congress. We are certain, however, of the
involuntary adjournment of the Congress which is 30 days, but we cannot leave to conjecture the
matter of involuntary recess.

FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner
has a formula x x x.

xxx

MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after
conferring with the Committee, Commissioner Aquino and I propose the following amendment as the
last paragraph of Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT
SHALL HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS
WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE
EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR
UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS.

This is otherwise called the ad interim appointments.

xxx
 THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and
Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none;
the amendment is approved."37 (Emphasis supplied)

Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was
for the purpose of avoiding interruptions in vital government services that otherwise would result from
prolonged vacancies in government offices, including the three constitutional commissions. In his concurring
opinion in Guevara vs. Inocentes,38 decided under the 1935 Constitution, Justice Roberto Concepcion, Jr.
explained the rationale behind ad interim appointments in this manner:

"Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the
session of Congress, the evil sought to be avoided – interruption in the discharge of essential
functions – may take place. Because the same evil would result if the appointments ceased to be
effective during the session of Congress and before its adjournment. Upon the other hand, once
Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of
other ad interim appointments or reappointments." (Emphasis supplied)

Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided
the interruption of essential government services in the May 2001 national elections. Following the decision
of this Court in Gaminde vs. Commission on Appointments,39 promulgated on December 13, 2000, the terms
of office of constitutional officers first appointed under the Constitution would have to be counted starting
February 2, 1987, the date of ratification of the Constitution, regardless of the date of their actual
appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC, including the
Chairman, would end on February 2, 2001.40

Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve,
pursuant to her appointment papers, until February 15, 2002,41 the original expiry date of the term of her
predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of the term
of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of Commissioner Julio F.
Desamito was November 3, 2001.42 The original expiry dates of the terms of office of Chairperson Demetriou
and Commissioners Flores and Desamito were therefore supposed to fall after the May 2001 elections.
Suddenly and unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-
person COMELEC, with national elections looming less than three and one-half months away. To their
credit, Chairperson Demetriou and Commissioner Flores vacated their offices on February 2, 2001 and did
not question any more before this Court the applicability of the Gaminderuling to their own situation.

In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson
Demetriou stated that she was vacating her office on February 2, 2001, as she believed any delay in
choosing her successor might create a "constitutional crisis" in view of the proximity of the May 2001
national elections. Commissioner Desamito chose to file a petition for intervention44 in the Gaminde case but
this Court denied the intervention. Thus, Commissioner Desamito also vacated his office on February 2,
2001.

During an election year, Congress normally goes on voluntary recess between February and June
considering that many of the members of the House of Representatives and the Senate run for re-election.
In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.45 Concededly, there was
no more time for Benipayo, Borra and Tuason, who were originally extended ad interim appointments only
on March 22, 2001, to be confirmed by the Commission on Appointments before the May 14, 2001 elections.

If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in
the COMELEC, there would only have been one division functioning in the COMELEC instead of two during
the May 2001 elections. Considering that the Constitution requires that "all x x x election cases shall be
heard and decided in division",46 the remaining one division would have been swamped with election cases.
Moreover, since under the Constitution motions for reconsideration "shall be decided by the Commission en
banc", the mere absence of one of the four remaining members would have prevented a quorum, a less than
ideal situation considering that the Commissioners are expected to travel around the country before, during
and after the elections. There was a great probability that disruptions in the conduct of the May 2001
elections could occur because of the three vacancies in the COMELEC. The successful conduct of the May
2001 national elections, right after the tumultuous EDSA II and EDSA III events, was certainly essential in
safeguarding and strengthening our democracy.

Evidently, the exercise by the President in the instant case of her constitutional power to make ad
interimappointments prevented the occurrence of the very evil sought to be avoided by the second
paragraph of Section 16, Article VII of the Constitution. This power to make ad interim appointments is
lodged in the President to be exercised by her in her sound judgment. Under the second paragraph of
Section 16, Article VII of the Constitution, the President can choose either of two modes in appointing
officials who are subject to confirmation by the Commission on Appointments. First, while Congress is in
session, the President may nominate the prospective appointee, and pending consent of the Commission on
Appointments, the nominee cannot qualify and assume office. Second, during the recess of Congress, the
President may extend an ad interim appointment which allows the appointee to immediately qualify and
assume office.

Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment
is a matter within the prerogative of the President because the Constitution grants her that power. This Court
cannot inquire into the propriety of the choice made by the President in the exercise of her constitutional
power, absent grave abuse of discretion amounting to lack or excess of jurisdiction on her part, which has
not been shown in the instant case.

The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice.

Former President Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E.
Abueg.47 Former President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F.
Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.48 Former President
Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar,
Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion.49

The President’s power to extend ad interim appointments may indeed briefly put the appointee at the mercy
of both the appointing and confirming powers. This situation, however, is only for a short period - from the
time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its
consent. The Constitution itself sanctions this situation, as a trade-off against the evil of disruptions in vital
government services. This is also part of the check-and-balance under the separation of powers, as a trade-
off against the evil of granting the President absolute and sole power to appoint. The Constitution has wisely
subjected the President’s appointing power to the checking power of the legislature.

This situation, however, does not compromise the independence of the COMELEC as a constitutional body.
The vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold
confirmed appointments, and not one President will appoint all the COMELEC members.50 In the instant
case, the Commission on Appointments had long confirmed four51 of the incumbent COMELEC members,
comprising a majority, who could now be removed from office only by impeachment. The special
constitutional safeguards that insure the independence of the COMELEC remain in place.52 The COMELEC
enjoys fiscal autonomy, appoints its own officials and employees, and promulgates its own rules on
pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased during their
tenure.

In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason,
as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting
appointments prohibited by Section 1 (2), Article IX-C of the Constitution.

Third Issue: The Constitutionality of Renewals of Appointments

Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by
Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments and their
subsequent assumption of office to the same positions violate the prohibition on reappointment under
Section 1 (2), Article IX-C of the Constitution, which provides as follows:

"The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
 appointed, three Members shall hold office for seven years, two Members for five years, and the last
members for three years, without reappointment. X x x." (Emphasis supplied)

Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his
ad interim appointment can no longer be renewed because this will violate Section 1 (2), Article IX-C of the
Constitution which prohibits reappointments. Petitioner asserts that this is particularly true to permanent
appointees who have assumed office, which is the situation of Benipayo, Borra and Tuason if their ad
interim appointments are deemed permanent in character.

There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no
longer be extended a new appointment. The disapproval is a final decision of the Commission on
Appointments in the exercise of its checking power on the appointing authority of the President. The
disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its
consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for
any appeal from such decision, the disapproval is final and binding on the appointee as well as on the
appointing power. In this instance, the President can no longer renew the appointment not because of the
constitutional prohibition on reappointment, but because of a final decision by the Commission on
Appointments to withhold its consent to the appointment.

An ad interim appointment that is by-passed because of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted
upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no
final decision by the Commission on Appointments to give or withhold its consent to the appointment as
required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment
of a by-passed appointee. This is recognized in Section 17 of the Rules of the Commission on
Appointments, which provides as follows:

"Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or

appointments submitted by the President of the Philippines which are not finally acted upon at the
close of the session of Congress shall be returned to the President and, unless new nominations or
appointments are made, shall not again be considered by the Commission." (Emphasis supplied)

Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered
again if the President renews the appointment.

It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed
appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs.
Inocentes53why by-passed ad interim appointees could be extended new appointments, thus:

"In short, an ad interim appointment ceases to be effective upon disapproval by the Commission,
because the incumbent can not continue holding office over the positive objection of the
Commission. It ceases, also, upon "the next adjournment of the Congress", simply because the
President may then issue new appointments - not because of implied disapproval of the Commission
deduced from its inaction during the session of Congress, for, under the Constitution, the
Commission may affect adversely the interim appointments only by action, never by omission. If the
adjournment of Congress were an implied disapproval of ad interimappointments made prior thereto,
then the President could no longer appoint those so by-passed by the Commission. But, the fact is
that the President may reappoint them, thus clearly indicating that the reason for said termination of
the ad interim appointments is not the disapproval thereof allegedly inferred from said omission of
the Commission, but the circumstance that upon said adjournment of the Congress, the President is
free to make ad interim appointments or reappointments." (Emphasis supplied)

Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article
VII of the present Constitution on ad interim appointments was lifted verbatim.54 The jurisprudence under the
1935 Constitution governing ad interim appointments by the President is doubtless applicable to the present
Constitution. The established practice under the present Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This is a continuation of the well-recognized practice
under the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a
Commission on Appointments but vested sole appointing power in the President.

The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to
disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be
revived by another ad interimappointment because the disapproval is final under Section 16, Article VII of
the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the
Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because
there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will
not result in the appointee serving beyond the fixed term of seven years.

Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners shall be
appointed x x x for a term of seven years without reappointment." (Emphasis supplied) There are four
situations where this provision will apply. The first situation is where an ad interim appointee to the
COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such
person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will
then be actually serving more than seven years. The second situation is where the appointee, after
confirmation, serves a part of his term and then resigns before his seven-year term of office ends. Such
person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement
because a reappointment will result in the appointee also serving more than seven years. The third situation
is where the appointee is confirmed to serve the unexpired term of someone who died or resigned, and the
appointee completes the unexpired term. Such person cannot be reappointed, whether as a member or
chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving
more than seven years.

The fourth situation is where the appointee has previously served a term of less than seven years, and a
vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a
reappointment of such person to serve an unexpired term is also prohibited because his situation will be
similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This
provision refers to the first appointees under the Constitution whose terms of office are less than seven
years, but are barred from ever being reappointed under any situation. Not one of these four situations
applies to the case of Benipayo, Borra or Tuason.

The framers of the Constitution made it quite clear that any person who has served any term of office as
COMELEC member – whether for a full term of seven years, a truncated term of five or three years, or even
for an unexpired term of any length of time – can no longer be reappointed to the COMELEC. Commissioner
Foz succinctly explained this intent in this manner:

"MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in
the case of Visarra vs. Miraflor, to the effect that the prohibition on reappointment applies only when
the term or tenure is for seven years. But in cases where the appointee serves only for less than
seven years, he would be entitled to reappointment. Unless we put the qualifying words "without
reappointment" in the case of those appointed, then it is possible that an interpretation could be
made later on their case, they can still be reappointed to serve for a total of seven years.

Precisely, we are foreclosing that possibility by making it clear that even in the case of those first
appointed under the Constitution, no reappointment can be made."55 (Emphasis supplied)

In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De
Vera57that a "[r]eappointment is not prohibited when a Commissioner has held office only for, say,
three or six years, provided his term will not exceed nine years in all." This was the interpretation
despite the express provision in the 1935 Constitution that a COMELEC member "shall hold office
for a term of nine years and may not be reappointed."

To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2), Article IX-
C of the present Constitution. The first phrase prohibits reappointment of any person previously appointed
for a term of seven years. The second phrase prohibits reappointment of any person previously appointed
for a term of five or three years pursuant to the first set of appointees under the Constitution. In either case,
it does not matter if the person previously appointed completes his term of office for the intention is to
prohibit any reappointment of any kind.

However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does
not constitute a term of office. The period from the time the ad interim appointment is made to the time it
lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his
unilateral action could start and complete the running of a term of office in the COMELEC without the
consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the
Commission on Appointments.

The phrase "without reappointment" applies only to one who has been appointed by the President and
confirmed by the Commission on Appointments, whether or not such person completes his term of office.
There must be a confirmation by the Commission on Appointments of the previous appointment before the
prohibition on reappointment can apply. To hold otherwise will lead to absurdities and negate the President’s
power to make ad interim appointments.

In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on
the ad interim appointments first issued to appointees. If such ad interim appointments can no longer be
renewed, the President will certainly hesitate to make ad interim appointments because most of her
appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This will
nullify the constitutional power of the President to make ad interim appointments, a power intended to avoid
disruptions in vital government services. This Court cannot subscribe to a proposition that will wreak havoc
on vital government services.

The prohibition on reappointment is common to the three constitutional commissions. The framers of the
present Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment
for those who have been previously appointed and confirmed even if they served for less than seven years.
The second is to insure that the members of the three constitutional commissions do not serve beyond the
fixed term of seven years. As reported in the Journal of the Constitutional Commission, Commissioner
Vicente B. Foz, who sponsored58 the proposed articles on the three constitutional commissions, outlined the
four important features of the proposed articles, to wit:

"Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting
the three Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that)
appropriations shall be automatically and regularly released to the Commission in the same manner
(as) provided for the Judiciary; 2) fixed term of office without reappointment on a staggered basis to
ensure continuity of functions and to minimize the opportunity of the President to appoint all the
members during his incumbency; 3) prohibition to decrease salaries of the members of the
Commissions during their term of office; and 4) appointments of members would not require
confirmation."59 (Emphasis supplied)

There were two important amendments subsequently made by the Constitutional Commission to these four
features. First, as discussed earlier, the framers of the Constitution decided to require confirmation by the
Commission on Appointments of all appointments to the constitutional commissions. Second, the framers
decided to strengthen further the prohibition on serving beyond the fixed seven-year term, in the light of a
former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven
years. The following exchange in the deliberations of the Constitutional Commission is instructive:

"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsor’s
attention, first of all, to Section 2 (2) on the Civil Service Commission wherein it is stated: "In no case
shall any Member be appointed in a temporary or acting capacity." I detect in the Committee’s
proposed resolutions a constitutional hangover, if I may use the term, from the past administration.
Am I correct in concluding that the reason the Committee introduced this particular provision is to
avoid an incident similar to the case of the Honorable Francisco Tantuico who was appointed in an
acting capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and
then in 1980, was appointed as Chairman with a tenure of another 7 years. So, if we follow that
appointment to (its) logical conclusion, he occupied that position for about 12 years in violation of the
Constitution?
 MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is
appointed to any of the commissions does not serve beyond 7 years."60 (Emphasis supplied)

Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:

"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore as a whole there is no way that somebody can serve for
more than seven years. The purpose of the last sentence is to make sure that this does not happen
by including in the appointment both temporary and acting capacities."61 (Emphasis supplied)

Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any
kind. On the other hand, the prohibition on temporary or acting appointments is intended to prevent any
circumvention of the prohibition on reappointment that may result in an appointee’s total term of office
exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific -
reappointment of any kind and exceeding one’s term in office beyond the maximum period of seven years.

Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the
screws on those who might wish to extend their terms of office. Thus, the word "designated" was inserted to
plug any loophole that might be exploited by violators of the Constitution, as shown in the following
discussion in the Constitutional Commission:

"MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the
words OR DESIGNATED so that the whole sentence will read: "In no case shall any Member be
appointed OR DESIGNATED in a temporary or acting capacity."

THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?

MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any
Member be appointed in a temporary or acting capacity."

MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers
make a distinction between an appointment and a designation. The Gentleman will recall that in the
case of Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the
Minister of Justice opined that it did not because he was only designated during the time that he
acted as Commissioner on Audit. So, in order to erase that distinction between appointment and
designation, we should specifically place the word so that there will be no more ambiguity. "In no
case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity."

MR. FOZ: The amendment is accepted, Mr. Presiding Officer.

MR. DE LOS REYES: Thank you.

THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none;
the amendment is approved."62

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do
not violate the prohibition on reappointments because there were no previous appointments that were
confirmed by the Commission on Appointments. A reappointment presupposes a previous confirmed
appointment. The same ad interim appointments and renewals of appointments will also not breach the
seven-year term limit because all the appointments and renewals of appointments of Benipayo, Borra and
Tuason are for a fixed term expiring on February 2, 2008.63 Any delay in their confirmation will not extend the
expiry date of their terms of office. Consequently, there is no danger whatsoever that the renewal of the ad
interim appointments of these three respondents will result in any of the evils intended to be exorcised by
the twin prohibitions in the Constitution. The continuing renewal of the ad interim appointment of these three
respondents, for so long as their terms of office expire on February 2, 2008, does not violate the prohibition
on reappointments in Section 1 (2), Article IX-C of the Constitution.
 Fourth Issue: Respondent Benipayo’s Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to
the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can
authorize such reassignment. Moreover, petitioner maintains that a reassignment without her consent
amounts to removal from office without due process and therefore illegal.

Petitioner’s posturing will hold water if Benipayo does not possess any color of title to the office of Chairman
of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and
consequently he has full authority to exercise all the powers of that office for so long as his ad
interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised
Administrative Code, the Chairman of the COMELEC is vested with the following power:

"Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the
Chief Executive Officer of the Commission, shall:

xxx

(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of
the Civil Service Law." (Emphasis supplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to
transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this
power, the Chairman is not required by law to secure the approval of the COMELEC en banc.

Petitioner’s appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001,
attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director IV position
in the EID only in an acting or temporary capacity.64 Petitioner is not a Career Executive Service (CES)
officer, and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for
holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by
the Civil Service Commission.65 Obviously, petitioner does not enjoy security of tenure as Director IV.
In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,66 this Court held that:

"As respondent does not have the rank appropriate for the position of Chief Public Attorney, her
appointment to that position cannot be considered permanent, and she can claim no security of
tenure in respect of that position. As held in Achacoso v. Macaraig:

‘It is settled that a permanent appointment can be issued only ‘to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate
eligibility prescribed.’ Achacoso did not. At best, therefore, his appointment could be
regarded only as temporary. And being so, it could be withdrawn at will by the appointing
authority and ‘at a moment’s notice’, conformably to established jurisprudence x x x.

The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications.
Such right will have to depend on the nature of his appointment, which in turn depends on
his eligibility or lack of it. A person who does not have the requisite qualifications for the
position cannot be appointed to it in the first place, or as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of appropriate eligibles. The
appointment extended to him cannot be regarded as permanent even if it may be so
designated x x x.’"

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her
reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a
temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing power
happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under
Section 261 (h) of the Omnibus Election Code, which provides as follows:

"Section 261. Prohibited Acts. The following shall be guilty of an election offense:

xxx

(h) Transfer of officers and employees in the civil service - Any public official who makes or causes
any transfer or detail whatever of any officer or employee in the civil service including public school
teachers, within the election period except upon prior approval of the Commission."

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or
reassignments of COMELEC personnel during the election period.67 Moreover, petitioner insists that the
COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the
election period.

Contrary to petitioner’s allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated
November 6, 2000,68 exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The
resolution states in part:

"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides
as follows:

xxx

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:

xxx

(h) Transfer of officers and employees in the civil service – Any public official who makes or
causes any transfer or detail whatever of any officer or employee in the civil service including
public school teachers, within the election period except upon approval of the Commission.

WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14,
2001;

WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on
Elections during the prohibited period in order that it can carry out its constitutional duty to conduct
free, orderly, honest, peaceful and credible elections;

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the changes in the assignment of
its field personnel within the thirty-day period before election day shall be effected after due notice
and hearing." (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or
reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel
and not to head office personnel like the petitioner. Under the Revised Administrative Code,69 the COMELEC
Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel.
The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel
pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power
because that will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot
legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC
personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No.
3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will
have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution
No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel,
without need of securing a second approval from the COMELEC en banc to actually implement such
transfer or reassignment.

The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the
election period. Thus, Benipayo’s order reassigning petitioner from the EID to the Law Department does not
violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayo’s order designating
Cinco Officer-in-Charge of the EID is legally unassailable.

Fifth Issue: Legality of Disbursements to Respondents

Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance
Services Department of the Commission on Elections, did not act in excess of jurisdiction in paying the
salaries and other emoluments of Benipayo, Borra, Tuason and Cinco.

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

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, De Leon,
Jr., and Sandoval-Gutierrez, JJ., concur.
Puno, and Vitug, JJ., on official leave.

G.R. No. 164978 October 13, 2005

AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE ENRILE, LUISA P. EJERCITO-
ESTRADA, JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL,
and SERGIO R. OSMEÑA III, Petitioners
vs.
EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO J. CRUZ, JR., MICHAEL
T. DEFENSOR, JOSEPH H. DURANO, RAUL M. GONZALEZ, ALBERTO G. ROMULO, RENE C. VILLA,
and ARTHUR C. YAP, Respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for certiorari and prohibition1 with a prayer for the issuance of a writ of preliminary injunction
to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo ("President
Arroyo") through Executive Secretary Eduardo R. Ermita ("Secretary Ermita") to Florencio B. Abad, Avelino
J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa,
and Arthur C. Yap ("respondents") as acting secretaries of their respective departments. The petition also
seeks to prohibit respondents from performing the duties of department secretaries.

Antecedent Facts

The Senate and the House of Representatives ("Congress") commenced their regular session on 26 July
2004. The Commission on Appointments, composed of Senators and Representatives, was constituted on
25 August 2004.
Meanwhile, President Arroyo issued appointments2 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. Osmeña, III ("Senator Osmeña")
("petitioners") filed the present petition as Senators of the Republic of the Philippines.

Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo issued ad

interimappointments3 to respondents as secretaries of the departments to which they were previously
appointed in an acting capacity. The appointment papers are uniformly worded as follows:

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 Arroyo’s appointment of respondents as acting
secretaries without the consent of the Commission on Appointments while Congress is in session.
The Court’s Ruling

The petition has no merit.

Preliminary Matters

On the Mootness of the Petition

The Solicitor General argues that the petition is moot because President Arroyo had extended to
respondents ad interim appointments on 23 September 2004 immediately after the recess of Congress.

As a rule, the writ of prohibition will not lie to enjoin acts already done.4 However, as an exception to the rule
on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review.5

In the present case, the mootness of the petition does not bar its resolution. The question of the
constitutionality of the President’s appointment of department secretaries in an acting capacity while
Congress is in session will arise in every such appointment.

On the Nature of the Power to Appoint

The power to appoint is essentially executive in nature, and the legislature may not interfere with the
exercise of this executive power except in those instances when the Constitution expressly allows it to
interfere.6 Limitations on the executive power to appoint are construed strictly against the legislature.7 The
scope of the legislature’s interference in the executive’s power to appoint is limited to the power to prescribe
the qualifications to an appointive office. Congress cannot appoint a person to an office in the guise of
prescribing qualifications to that office. Neither may Congress impose on the President the duty to appoint
any particular person to an office.8

However, even if the Commission on Appointments is composed of members of Congress, the exercise of
its powers is executive and not legislative. The Commission on Appointments does not legislate when it
exercises its power to give or withhold consent to presidential appointments. Thus:

xxx The Commission on Appointments is a creature of the Constitution. Although its membership is confined
to members of Congress, said Commission is independent of Congress. The powers of the Commission do
not come from Congress, but emanate directly from the Constitution. Hence, it is not an agent of Congress.
In fact, the functions of the Commissioner are purely executive in nature. xxx9

On Petitioners’ Standing

The Solicitor General states that the present petition is a quo warranto proceeding because, with the
exception of Secretary Ermita, petitioners effectively seek to oust respondents for unlawfully exercising the
powers of department secretaries. The Solicitor General further states that petitioners may not claim
standing as Senators because no power of the Commission on Appointments has been "infringed upon or
violated by the President. xxx If at all, the Commission on Appointments as a body (rather than individual
members of the Congress) may possess standing in this case."10

Petitioners, on the other hand, state that the Court can exercise its certiorari jurisdiction over unconstitutional
acts of the President.11 Petitioners further contend that they possess standing because President Arroyo’s
appointment of department secretaries in an acting capacity while Congress is in session impairs the powers
of Congress. Petitioners cite Sanlakas v. Executive Secretary12 as basis, thus:

To the extent that the powers of Congress are impaired, so is the power of each member thereof, since his
office confers a right to participate in the exercise of the powers of that institution.

An act of the Executive which injures the institution of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.
Considering the independence of the Commission on Appointments from Congress, it is error for petitioners
to claim standing in the present case as members of Congress. President Arroyo’s issuance of acting
appointments while Congress is in session impairs no power of Congress. Among the petitioners, only the
following are members of the Commission on Appointments of the 13th Congress: Senator Enrile as Minority
Floor Leader, Senator Lacson as Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-
Estrada, and Senator Osmeña as members.

Thus, on the impairment of the prerogatives of members of the Commission on Appointments, only Senators
Enrile, Lacson, Angara, Ejercito-Estrada, and Osmeña have standing in the present petition. This is in
contrast to Senators Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their perceived
prerogatives as members of Congress, possess no standing in the present petition.

The Constitutionality of President Arroyo’s Issuance

of Appointments to Respondents as Acting Secretaries

Petitioners contend that President Arroyo should not have appointed respondents as acting secretaries
because "in case of a vacancy in the Office of a Secretary, it is only an Undersecretary who can be
designated as Acting Secretary."13 Petitioners base their argument on Section 10, Chapter 2, Book IV of
Executive Order No. 292 ("EO 292"),14 which enumerates the powers and duties of the undersecretary.
Paragraph 5 of Section 10 reads:

SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary shall:

xxx

(5) Temporarily discharge the duties of the Secretary in the latter’s absence or inability to discharge his
duties for any cause or in case of vacancy of the said office, unless otherwise provided by law. Where there
are more than one Undersecretary, the Secretary shall allocate the foregoing powers and duties among
them. The President shall likewise make the temporary designation of Acting Secretary from among them;
and

xxx

Petitioners further assert that "while Congress is in session, there can be no appointments, whether regular
or acting, to a vacant position of an office needing confirmation by the Commission on Appointments,
without first having obtained its consent."15

In sharp contrast, respondents maintain that the President can issue appointments in an acting capacity to
department secretaries without the consent of the Commission on Appointments even while Congress is in
session. Respondents point to Section 16, Article VII of the 1987 Constitution. Section 16 reads:

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

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

Respondents also rely on EO 292, which devotes a chapter to the President’s power of appointment.
Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. — The President shall exercise the power to appoint such officials as
provided for in the Constitution and laws.

SEC. 17. Power to Issue Temporary Designation. — (1) The President may temporarily designate an
officer already in the government service or any other competent person to perform the functions of
an office in the executive branch, appointment to which is vested in him by law, when: (a) the officer
regularly appointed to the office is unable to perform his duties by reason of illness, absence or any
other cause; or (b) there exists a vacancy[.]

(2) The person designated shall receive the compensation attached to the position, unless he is already in
the government service in which case he shall receive only such additional compensation as, with his
existing salary, shall not exceed the salary authorized by law for the position filled. The compensation
hereby authorized shall be paid out of the funds appropriated for the office or agency concerned.

(3) In no case shall a temporary designation exceed one (1) year. (Emphasis supplied)

Petitioners and respondents maintain two diametrically opposed lines of thought. Petitioners assert that the
President cannot issue appointments in an acting capacity to department secretaries while Congress is in
session because the law does not give the President such power. In contrast, respondents insist that the
President can issue such appointments because no law prohibits such appointments.

The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure
intended to fill an office for a limited time until the appointment of a permanent occupant to the office.16 In
case of vacancy in an office occupied by an alter ego of the President, such as the office of a department
secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the
permanent appointee of her choice could assume office.

Congress, through a law, cannot impose on the President the obligation to appoint automatically the
undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position
of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose
on the President who her alter ego should be.

The office of a department secretary may become vacant while Congress is in session. Since a department
secretary is the alter ego of the President, the acting appointee to the office must necessarily have the
President’s confidence. Thus, by the very nature of the office of a department secretary, the President must
appoint in an acting capacity a person of her choice even while Congress is in session. That person may or
may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee
will also be the permanent appointee.

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

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

Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse.
Petitioners fail to consider that acting appointments cannot exceed one year as expressly provided in
Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard to prevent
abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on
Appointments.
In distinguishing ad interim appointments from appointments in an acting capacity, a noted textbook writer
on constitutional law has observed:

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

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

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

SO ORDERED.

[G.R. No. 141284. August 15, 2000]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B.

ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and
GEN. ANGELO REYES, respondents.

DECISION
KAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a
temporary restraining order seeking to nullify on constitutional grounds the order of President
Joseph Ejercito Estrada commanding the deployment of the Philippine Marines (the Marines) to
join the Philippine National Police (the PNP) in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings
and carnappings, the President, in a verbal directive, ordered the PNP and the Marines to
conduct joint visibility patrols for the purpose of crime prevention and suppression. The
Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines (the
AFP), the Chief of the PNP and the Secretary of the Interior and Local Government were tasked
to execute and implement the said order. In compliance with the presidential mandate, the PNP
Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction
02/2000[1] (the LOI) which detailed the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.[2] Task Force Tulungan was placed under the leadership
of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the
Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP
and the PNP Chief.[3] In the Memorandum, the President expressed his desire to improve the
peace and order situation in Metro Manila through a more effective crime prevention program
including increased police patrols.[4] The President further stated that to heighten police visibility
in the metropolis, augmentation from the AFP is necessary. [5] Invoking his powers as
Commander-in-Chief under Section 18, Article VII of the Constitution, the President directed the
AFP Chief of Staff and PNP Chief to coordinate with each other for the proper deployment and
utilization of the Marines to assist the PNP in preventing or suppressing criminal or lawless
violence.[6] Finally, the President declared that the services of the Marines in the anti-crime
campaign are merely temporary in nature and for a reasonable period only, until such time when
the situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx

2. PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the
Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for
the suppression of crime prevention and other serious threats to national security.

3. SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by ordinary
criminals but also by organized syndicates whose members include active and
former police/military personnel whose training, skill, discipline and firepower prove
well-above the present capability of the local police alone to handle. The
deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police
visibility patrol in urban areas will reduce the incidence of crimes specially those
perpetrated by active or former police/military personnel.

4. MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-
PM visibility patrols to keep Metro Manila streets crime-free, through a sustained
street patrolling to minimize or eradicate all forms of high-profile crimes especially
those perpetrated by organized crime syndicates whose members include those that
are well-trained, disciplined and well-armed active or former PNP/Military personnel.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital
Regional Police Office] and the Philippine Marines to curb criminality in Metro
Manila and to preserve the internal security of the state against insurgents and other
serious threat to national security, although the primary responsibility over Internal
Security Operations still rests upon the AFP.

b. The principle of integration of efforts shall be applied to eradicate all forms of

high-profile crimes perpetrated by organized crime syndicates operating in Metro
Manila. This concept requires the military and police to work cohesively and unify
efforts to ensure a focused, effective and holistic approach in addressing crime
prevention. Along this line, the role of the military and police aside from neutralizing
crime syndicates is to bring a wholesome atmosphere wherein delivery of basic
services to the people and development is achieved. Hand-in-hand with this joint
NCRPO-Philippine Marines visibility patrols, local Police Units are responsible for
the maintenance of peace and order in their locality.

c. To ensure the effective implementation of this project, a provisional Task Force

TULUNGAN shall be organized to provide the mechanism, structure, and
procedures for the integrated planning, coordinating, monitoring and assessing the
security situation.

xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM
City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center,
LRT/MRT Stations and the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition
to annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:
I

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS

VIOLATIVE OF THE CONSTITUTION, IN THAT:

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD

JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR
LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION
OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE

MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT)
IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON

THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.
II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE

ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.[10]

Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty
to uphold the rule of law and the Constitution, the IBP questions the validity of the deployment
and utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution, [11] dated 25 January
2000, required the Solicitor General to file his Comment on the petition. On 8 February 2000,
the Solicitor General submitted his Comment.
 The Solicitor General vigorously defends the constitutionality of the act of the President in
deploying the Marines, contending, among others, that petitioner has no legal standing; that the
question of deployment of the Marines is not proper for judicial scrutiny since the same involves
a political question; that the organization and conduct of police visibility patrols, which feature
the team-up of one police officer and one Philippine Marine soldier, does not violate the civilian
supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing;
(2) Whether or not the Presidents factual determination of the necessity of calling the armed
forces is subject to judicial review; and, (3) Whether or not the calling of the armed forces to
assist the PNP in joint visibility patrols violates the constitutional provisions on civilian supremacy
over the military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing
to raise the issues in the petition. Second, the President did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy
clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.

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 grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government.

When questions of constitutional significance are raised, the Court can exercise its power of
judicial review only if the following requisites are complied with, namely: (1) the existence of an
actual and appropriate case; (2) a personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity;
and (4) the constitutional question is the lis mota of the case.[12]

The IBP has not sufficiently complied with the requisites of standing in this case.

Legal standing or locus standi has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the governmental
act that is being challenged.[13] The term interest means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in the question involved, or a mere
incidental interest.[14] 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.[15]
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts
no other basis in support of its locus standi. 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. Based on the standards above-stated, the IBP has failed to present a specific
and substantial interest in the resolution of the case. Its fundamental purpose which, under
Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of the law profession
and to improve the administration of justice is alien to, and cannot be affected by the deployment
of the Marines. It should also be noted that the interest of the National President of the IBP who
signed the petition, is his alone, absent a formal board resolution authorizing him to file the
present action. To be sure, members of the BAR, those in the judiciary included, have varying
opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the National
President to file the petition, has not shown any specific injury which it has suffered or may suffer
by virtue of the questioned governmental act. Indeed, none of its members, whom the IBP
purportedly represents, has sustained any form of injury as a result of the operation of the joint
visibility patrols. Neither is it alleged that any of its members has been arrested or that their civil
liberties have been violated by the deployment of the Marines. What the IBP projects as injurious
is the supposed militarization of law enforcement which might threaten Philippine democratic
institutions and may cause more harm than good in the long run. Not only is the presumed injury
not personal in character, it is likewise too vague, highly speculative and uncertain to satisfy the
requirement of standing. Since petitioner has not successfully established a direct and personal
injury as a consequence of the questioned act, it does not possess the personality to assail the
validity of the deployment of the Marines. This Court, however, does not categorically rule that
the IBP has absolutely no standing to raise constitutional issues now or in the future. The IBP
must, by way of allegations and proof, satisfy this Court that it has sufficient stake to obtain
judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal standing when paramount
interest is involved.[16] In not a few cases, the Court has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an issue of transcendental significance
to the people.[17] Thus, when the issues raised are of paramount importance to the public, the
Court may brush aside technicalities of procedure.[18] 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.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the President
of the necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility
patrols. In this regard, the IBP admits that the deployment of the military personnel falls under
the Commander-in-Chief powers of the President as stated in Section 18, Article VII of the
Constitution, specifically, the power to call out the armed forces to prevent or suppress lawless
violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of
the Marines under the aforestated provision. According to the IBP, no emergency exists that
would justify the need for the calling of the military to assist the police force. It contends that no
lawless violence, invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP
prays that this Court review the sufficiency of the factual basis for said troop [Marine]
deployment.[19]
 The Solicitor General, on the other hand, contends that the issue pertaining to the necessity
of calling the armed forces is not proper for judicial scrutiny since it involves a political question
and the resolution of factual issues which are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and
limits, and the extent of judicial review. But, while this Court gives considerable weight to the
parties formulation of the issues, the resolution of the controversy may warrant a creative
approach that goes beyond the narrow confines of the issues raised. Thus, while the parties are
in agreement that the power exercised by the President is the power to call out the armed forces,
the Court is of the view that the power involved may be no more than the maintenance of peace
and order and promotion of the general welfare. [20] For one, the realities on the ground do not
show that there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full
brunt of the military is not brought upon the citizenry, a point discussed in the latter part of this
decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the Presidents 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 Presidents 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.

xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power to call
out the armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution
of the controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not susceptible
to review by the judiciary because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review.[22] It pertains to issues which are inherently susceptible of being
decided on grounds recognized by law. Nevertheless, the Court does not automatically assume
jurisdiction over actual constitutional cases brought before it even in instances that are ripe for
resolution. One class of cases wherein the Court hesitates to rule on are political questions. The
reason is that political questions are concerned with issues dependent upon the wisdom, not the
legality, of a particular act or measure being assailed. Moreover, the political question being a
function of the separation of powers, the courts will not normally interfere with the workings of
another co-equal branch unless the case shows a clear need for the courts to step in to uphold
the law and the Constitution.
 As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of
government. Thus, if an issue is clearly identified by the text of the Constitution as matters for
discretionary action by a particular branch of government or to the people themselves then it is
held to be a political question. In the classic formulation of Justice Brennan in Baker v.
Carr,[24] [p]rominent 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 nonjudicial
discretion; or the impossibility of a courts 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
embarassment from multifarious pronouncements by various departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he Judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by
law. 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.[25] Under this definition, the Court cannot
agree with the Solicitor General that the issue involved is a political question beyond the
jurisdiction of this Court to review. When the grant of power is qualified, conditional or subject to
limitations, the issue of whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or validity, not its
wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given to this
Court.[27] When political questions are involved, the Constitution limits the determination as 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.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment
that is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform
a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised
in an arbitrary and despotic manner by reason of passion or hostility. [29] Under this definition, a
court is without power to directly decide matters over which full discretionary authority has been
delegated. But while this Court has no power to substitute its judgment for that of Congress or
of the President, it may look into the question of whether such exercise has been made in grave
abuse of discretion.[30] A showing that plenary power is granted either department of government,
may not be an obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give
rise to justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence, invasion
or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom.This is
clear from the intent of the framers and from the text of the Constitution itself. The Court, thus,
cannot be called upon to overrule the Presidents wisdom or substitute its own.However, 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. In view of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to
show that the Presidents decision is totally bereft of factual basis. The present petition fails to
discharge such heavy burden as there is no evidence to support the assertion that there exist
no justification for calling out the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the military. In the
performance of this Courts duty of purposeful hesitation [32] before declaring an act of another
branch as unconstitutional, only where such grave abuse of discretion is clearly shown shall the
Court interfere with the Presidents judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise
of such power. Section 18, Article VII of the Constitution, which embodies the powers of the
President as Commander-in-Chief, provides in part:

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.

xxx
The full discretionary power of the President to determine the factual basis for the exercise
of the calling out power is also implied and further reinforced in the rest of Section 18, Article VII
which reads, thus:
xxx

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 basis 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.

Under the foregoing provisions, Congress may revoke such proclamation or suspension and
the Court may review the sufficiency of the factual basis thereof. However, there is no such
equivalent provision dealing with the revocation or review of the Presidents action to call out the
armed forces. The distinction places the calling out power in a different category from the power
to declare martial law and the power to suspend the privilege of the writ of habeas corpus,
otherwise, the framers of the Constitution would have simply lumped together the three powers
and provided for their revocation and review without any qualification. Expressio unius est
exclusio alterius. Where the terms are expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters.[33] That the intent of the Constitution
is exactly what its letter says, i.e., that the power to call is fully discretionary to the President, is
extant in the deliberation of the Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a graduated
power of the President as Commander-in-Chief. First, he can call out such Armed
Forces as may be necessary to suppress lawless violence; then he can suspend the
privilege of the writ of habeas corpus, then he can impose martial law. This is a
graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege
of the writ of habeas corpus, his judgment is subject to review. We are making it
subject to review by the Supreme Court and subject to concurrence by the National
Assembly. But when he exercises this lesser power of calling on the Armed Forces,
when he says it is necessary, it is my opinion that his judgment cannot be reviewed
by anybody.

xxx

FR. BERNAS. Let me just add that when we only have imminent danger, the matter
can be handled by the first sentence: The President may call out such armed forces
to prevent or suppress lawless violence, invasion or rebellion. So we feel that that is
sufficient for handling imminent danger.

MR. DE LOS REYES. So actually, if a President feels that there is imminent danger,
the matter can be handled by the First Sentence: The President....may call out such
Armed Forces to prevent or suppress lawless violence, invasion or rebellion. So we
feel that that is sufficient for handling imminent danger, of invasion or rebellion,
instead of imposing martial law or suspending the writ of habeas corpus, he must
necessarily have to call the Armed Forces of the Philippines as their Commander-in-
Chief. Is that the idea?

MR. REGALADO. That does not require any concurrence by the legislature nor is it
subject to judicial review.[34]
 The reason for the difference in the treatment of the aforementioned powers highlights the
intent to grant the President the widest leeway and broadest discretion in using the power to call
out because it is considered as the lesser and more benign power compared to the power to
suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of
which involve the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to
suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must
concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it.
These conditions are not required in the case of the power to call out the armed forces. The only
criterion is that whenever it becomes necessary, the President may call the armed forces to
prevent or suppress lawless violence, invasion or rebellion." The implication is that the President
is given full discretion and wide latitude in the exercise of the power to call as compared to the
two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted without
factual basis, then this Court cannot undertake an independent investigation beyond the
pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and
cannot be objectively established since matters considered for satisfying the same is a
combination of several factors which are not always accessible to the courts. Besides the
absence of textual standards that the court may use to judge necessity, information necessary
to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent
information might be difficult to verify, or wholly unavailable to the courts. In many instances, the
evidence upon which the President might decide that there is a need to call out the armed forces
may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to
gather information, some of which may be classified as highly confidential or affecting the
security of the state. In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of human lives and mass
destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless
violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario
is not farfetched when we consider the present situation in Mindanao, where the insurgency
problem could spill over the other parts of the country. The determination of the necessity for the
calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for
disaster, as such power may be unduly straitjacketed by an injunction or a temporary restraining
order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his
judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or
rebellion. Unless the petitioner can show that the exercise of such discretion was gravely
abused, the Presidents exercise of judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed
forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like bank/store
robberies, holdups, kidnappings and carnappings continue to occur in Metro Manila... [35] We do
not doubt the veracity of the Presidents assessment of the situation, especially in the light of
present developments. The Court takes judicial notice of the recent bombings perpetrated by
lawless elements in the shopping malls, public utilities, and other public places. These are
among the areas of deployment described in the LOI 2000. Considering all these facts, we hold
that the President has sufficient factual basis to call for military aid in law enforcement and in the
exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does
it infringe the civilian character of the police force.

Prescinding from its argument that no emergency situation exists to justify the calling of the
Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law
enforcement is militarized in violation of Section 3, Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of military
assets for civilian law enforcement. The participation of the Marines in the conduct of joint
visibility patrols is appropriately circumscribed. The limited participation of the Marines is evident
in the provisions of the LOI itself, which sufficiently provides the metes and bounds of the
Marines authority. It is noteworthy that the local police forces are the ones in charge of the
visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila
Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols.[37] Under
the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. [38] It
is their responsibility to direct and manage the deployment of the Marines. [39] It is, likewise, their
duty to provide the necessary equipment to the Marines and render logistical support to these
soldiers.[40] In view of the foregoing, it cannot be properly argued that military authority is supreme
over civilian authority. Moreover, the deployment of the Marines to assist the PNP does not
unmake the civilian character of the police force. Neither does it amount to an insidious incursion
of the military in the task of law enforcement in violation of Section 5(4), Article XVI of the
Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP,
by his alleged involvement in civilian law enforcement, has been virtually appointed to a civilian
post in derogation of the aforecited provision. The real authority in these operations, as stated
in the LOI, is lodged with the head of a civilian institution, the PNP, and not with the military. Such
being the case, it does not matter whether the AFP Chief actually participates in the Task
Force Tulungan since he does not exercise any authority or control over the same.Since none
of the Marines was incorporated or enlisted as members of the PNP, there can be no
appointment to civilian position to speak of. Hence, the deployment of the Marines in the joint
visibility patrols does not destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance
required in conducting the patrols. As such, there can be no insidious incursion of the military in
civilian affairs nor can there be a violation of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists
in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the
assistance of the military in the implementation and execution of certain traditionally civil
functions. As correctly pointed out by the Solicitor General, some of the multifarious activities
wherein military aid has been rendered, exemplifying the activities that bring both the civilian
and the military together in a relationship of cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
 7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]
This unquestionably constitutes a gloss on executive power resulting from a systematic,
unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before
questioned.[59] What we have here is mutual support and cooperation between the military
and civilian authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of
military force for domestic purposes has persisted,[60] and whose Constitution, unlike ours, does
not expressly provide for the power to call, the use of military personnel by civilian law
enforcement officers is allowed under circumstances similar to those surrounding the present
deployment of the Philippine Marines. Under the Posse Comitatus Act[61] of the US, the use of
the military in civilian law enforcement is generally prohibited, except in certain allowable
circumstances. A provision of the Act states:

1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the

Constitution or Act of Congress, willfully uses any part of the Army or the Air Force
as posse comitatus or otherwise to execute the laws shall be fined not more than
$10,000 or imprisoned not more than two years, or both.[62]

To determine whether there is a violation of the Posse Comitatus Act in the use of military
personnel, the US courts[63] apply the following standards, to wit:

Were Army or Air Force personnel used by the civilian law enforcement officers at
Wounded Knee in such a manner that the military personnel subjected the citizens
to the exercise of military power which was regulatory, proscriptive, or
compulsory[64] George Washington Law Review, pp. 404-433 (1986), which discusses the four divergent
standards for assessing acceptable involvement of military personnel in civil law enforcement. See likewise
HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY
FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively?

xxx

When this concept is transplanted into the present legal context, we take it to mean
that military involvement, even when not expressly authorized by the Constitution or
a statute, does not violate the Posse Comitatus Act unless it actually regulates,
forbids or compels some conduct on the part of those claiming relief. A mere threat
of some future injury would be insufficient.(emphasis supplied)

Even if the Court were to apply the above rigid standards to the present case to determine
whether there is permissible use of the military in civilian law enforcement, the conclusion is
inevitable that no violation of the civilian supremacy clause in the Constitution is committed. On
this point, the Court agrees with the observation of the Solicitor General:

3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory,
proscriptive, or compulsory military power. First, the soldiers do not control or direct the operation. This is
evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit
or condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the nearest police stations for
proper disposition.And last, these soldiers apply no coercive force. The materials or equipment issued to
them, as shown in No. 8(c)[70] of Annex A, are all low impact and defensive in character. The conclusion is
that there being no exercise of regulatory, proscriptive or compulsory military power, the deployment of a
handful of Philippine Marines constitutes no impermissible use of military power for civilian law
enforcement.[71]

It appears that the present petition is anchored on fear that once the armed forces are
deployed, the military will gain ascendancy, and thus place in peril our cherished liberties. Such
apprehensions, however, are unfounded. The power to call the armed forces is just that - calling
out the armed forces. Unless, petitioner IBP can show, which it has not, that in the deployment
of the Marines, the President has violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not inclined to overrule the Presidents
determination of the factual basis for the calling of the Marines to prevent or suppress lawless
violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single
citizen has complained that his political or civil rights have been violated as a result of the
deployment of the Marines. It was precisely to safeguard peace, tranquility and the civil liberties
of the people that the joint visibility patrol was conceived. Freedom and democracy will be in full
bloom only when people feel secure in their homes and in the streets, not when the shadows of
violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.

SEPARATE OPINION

PUNO, J.:
 If the case at bar is significant, it is because of the government attempt to foist the political
question doctrine to shield an executive act done in the exercise of the commander-in-chief
powers from judicial scrutiny. If the attempt succeeded, it would have diminished the power
of judicial review and weakened the checking authority of this Court over the Chief
Executive when he exercises his commander-in-chief powers. The attempt should remind
us of the tragedy that befell the country when this Court sought refuge in the political
question doctrine and forfeited its most important role as protector of the civil and
political rights of our people. The ongoing conflict in Mindanao may worsen and can force
the Chief Executive to resort to the use of his greater commander-in-chief powers, hence,
this Court should be extra cautious in assaying similar attempts. A laid back posture may
not sit well with our people considering that the 1987 Constitution strengthened the
checking powers of this Court and expanded its jurisdiction precisely to stop any act
constituting xxx grave abuse of jurisdiction xxx on the part of any branch or
instrumentality of the Government.1
The importance of the issue at bar includes this humble separate opinion. We can best
perceive the different intersecting dimensions of the political question doctrine by viewing them
from the broader canvass of history. Political questions are defined as 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
government.2 They have two aspects: (1) those matters that are to be exercised by the people
in their primary political capacity and (2) matters which have been specifically delegated to some
other department or particular office of the government, with discretionary power to act.3 The
exercise of the discretionary power of the legislative or executive branch of government was
often the area where the Court had to wrestle with the political question doctrine.4
A brief review of some of our case law will thus give us a sharper perspective of the political
question doctrine. This question confronted the Court as early as 1905 in the case of Barcelon
v. Baker.5 The Governor-General of the Philippine Islands, pursuant to a resolution of the
Philippine Commission, suspended the privilege of the writ of habeas corpus in Cavite and
Batangas based on a finding of open insurrection in said provinces. Felix Barcelon, who was
detained by constabulary officers in Batangas, filed a petition for the issuance of a writ of habeas
corpus alleging that there was no open insurrection in Batangas. The issue to resolve was
whether or not the judicial department may investigate the facts upon which the legislative (the
Philippine Commission) and executive (the Governor-General) branches of government acted
in suspending the privilege of the writ.
The Court ruled that under our form of government, one department has no authority to
inquire into the acts of another, which acts are performed within the discretion of the other
department.6 Surveying American law and jurisprudence, it held that whenever a statute gives
discretionary power to any person, to be exercised by him upon his own opinion of certain facts,
the statute constitutes him the sole judge of the existence of those facts.7 Since the Philippine
Bill of 1902 empowered the Philippine Commission and the Governor-General to suspend the
privilege of the writ of habeas corpus, this power is exclusively within the discretion of the
legislative and executive branches of government. The exercise of this discretion is
conclusive upon the courts.8
The Court further held that once a determination is made by the executive and legislative
departments that the conditions justifying the assailed acts exists, it will presume that the
conditions continue until the same authority decide that they no longer exist. 9 It adopted
the rationale that the executive branch, thru its civil and military branches, are better
situated to obtain information about peace and order from every corner of the nation, in contrast
with the judicial department, with its very limited machinery. 10 The seed of the political
question doctrine was thus planted in Philippine soil.
 The doctrine barring judicial review because of the political question doctrine was
next applied to the internal affairs of the legislature. The Court refused to interfere in the
legislative exercise of disciplinary power over its own members. In the 1924 case of Alejandrino
v. Quezon,11 Alejandrino, who was appointed Senator by the Governor-General, was declared
by Senate Resolution as guilty of disorderly conduct for assaulting another Senator in the course
of a debate, and was suspended from office for one year. Senator Alejandrino filed a petition for
mandamus and injunction to compel the Senate to reinstate him. The Court held that under the
Jones Law, the power of the Senate to punish its members for disorderly behavior does not
authorize it to suspend an appointive member from the exercise of his office. While the Court
found that the suspension was illegal, it refused to issue the writ of mandamus on the ground
that "the Supreme Court does not possess the power of coercion to make the Philippine Senate
take any particular action. [T]he Philippine Legislature or any branch thereof cannot be directly
controlled in the exercise of their legislative powers by any judicial process." 12
The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v. Avelino,13 three
senators-elect who had been prevented from taking their oaths of office by a Senate resolution
repaired to this Court to compel their colleagues to allow them to occupy their seats contending
that only the Electoral Tribunal had jurisdiction over contests relating to their election, returns
and qualifications. Again, the Court refused to intervene citing Alejandrino and affirmed the
inherent right of the legislature to determine who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight representatives
who were proclaimed elected by Comelec were not allowed by Congress to take part in the
voting for the passage of the Parity amendment to the Constitution. If their votes had been
counted, the affirmative votes in favor of the proposed amendment would have been short of the
necessary three-fourths vote in either House of Congress to pass the amendment. The
amendment was eventually submitted to the people for ratification. The Court declined to
intervene and held that a proposal to amend the Constitution is a highly political function
performed by Congress in its sovereign legislative capacity.15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the legality
of his detention ordered by the Senate for his refusal to answer questions put to him by members
of one of its investigating committees. This Court refused to order his release holding that the
process by which a contumacious witness is dealt with by the legislature is a necessary
concomitant of the legislative process and the legislature's exercise of its discretionary authority
is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line.
Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for serious
disorderly behavior for making a privilege speech imputing "malicious charges" against the
President of the Philippines. Osmena, Jr. invoked the power of review of this Court but the Court
once more did not interfere with Congress' power to discipline its members.
The contours of the political question doctrine have always been tricky. To be sure, the Court
did not always stay its hand whenever the doctrine is invoked. In the 1949 case of Avelino v.
Cuenco,18 Senate President Jose Avelino, who was deposed and replaced, questioned his
successor's title claiming that the latter had been elected without a quorum. The petition was
initially dismissed on the ground that the selection of Senate President was an internal matter
and not subject to judicial review.19 On reconsideration, however, the Court ruled that it could
assume jurisdiction over the controversy in light of subsequent events justifying intervention
among which was the existence of a quorum.20 Though the petition was ultimately dismissed,
the Court declared respondent Cuenco as the legally elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a dispute
involving the formation and composition of the Senate Electoral Tribunal. It rejected the Solicitor
General's claim that the dispute involved a political question. Instead, it declared that the Senate
is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral
Tribunal and the exercise of its power thereon is subject to constitutional limitations which are
mandatory in nature.22 It held that under the Constitution, the membership of the Senate
Electoral Tribunal was designed to insure the exercise of judicial impartiality in the disposition of
election contests affecting members of the lawmaking body. 23 The Court then nullified the
election to the Senate Electoral Tribunal made by Senators belonging to the party having the
largest number of votes of two of their party members but purporting to act on behalf of the party
having the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether Congress
had formed the Commission on Appointments in accordance with the Constitution and found
that it did not. It declared that the Commission on Appointments is a creature of the Constitution
and its power does not come from Congress but from the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v.
Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not Congress,
acting as a constituent assembly in proposing amendments to the Constitution violates the
Constitution was held to be a justiciable and not a political issue. In Gonzales, the Court ruled:

"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
the Constitution-which was being submitted to the people for ratification-satisfied the
three-fourths vote requirement of the fundamental law. The force of this precedent
has been weakened, however, by Suanes v. Chief Accountant of the Senate,
Avelino v. Cuenco, Tanada v. Cuenco, and Macias v. Commission on Elections. In
the first, we held that the officers and employees of the Senate Electoral Tribunal
are under its supervision and control, not of that of the Senate President, as claimed
by the latter; in the second, this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the third, we nullified the
election, by Senators belonging to the party having the largest number of votes in
said chamber, purporting to act on behalf of the party having the second largest
number of votes therein, of two (2) Senators belonging to the first party, as
members, for the second party, of the Senate Electoral Tribunal; and in the fourth,
we declared unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives upon the ground that the
apportionment had not been made as may be possible according to the number of
inhabitants of each province. Thus, we rejected the theory, advanced in these four
cases, that the issues therein raised were political questions the determination of
which is beyond judicial review.27

The Court explained that the power to amend the Constitution or to propose amendments
thereto is not included in the general grant of legislative powers to Congress. As a constituent
assembly, the members of Congress derive their authority from the fundamental law and they
do not have the final say on whether their acts are within or beyond constitutional limits. 28 This
ruling was reiterated in Tolentino which held that acts of a constitutional convention called for
the purpose of proposing amendments to the Constitution are at par with acts of Congress acting
as a constituent assembly.29
 In sum, this Court brushed aside the political question doctrine and assumed
jurisdiction whenever it found constitutionally-imposed limits on the exercise of powers
conferred upon the Legislature.30
The Court hewed to the same line as regards the exercise of Executive power. Thus,
the respect accorded executive discretion was observed in Severino v. Governor-
General,31where it was held that the Governor-General, as head of the executive department,
could not be compelled by mandamus to call a special election in the town of Silay for the
purpose of electing a municipal president. Mandamus and injunction could not lie to enforce or
restrain a duty which is discretionary. It was held that when the Legislature conferred upon the
Governor-General powers and duties, it did so for the reason that he was in a better position to
know the needs of the country than any other member of the executive department, and with full
confidence that he will perform such duties as his best judgment dictates.32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not be
compelled by mandamus to produce certain vouchers showing the various expenditures of the
Independence Commission. Under the principle of separation of powers, it ruled that it was not
intended by the Constitution that one branch of government could encroach upon the field of
duty of the other. Each department has an exclusive field within which it can perform its part
within certain discretionary limits.34 It observed that "the executive and legislative departments
of government are frequently called upon to deal with what are known as political questions, with
which the judicial department of government has no intervention. In all such questions, the courts
uniformly refused to intervene for the purpose of directing or controlling the actions of the other
department; such questions being many times reserved to those departments in the organic law
of the state."35
In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining the Chief
Executive from deporting an obnoxious alien whose continued presence in the Philippines was
found by him to be injurious to the public interest. It noted that sudden and unexpected conditions
may arise, growing out of the presence of untrustworthy aliens, which demand immediate
action. The President's inherent power to deport undesirable aliens is universally denominated
as political, and this power continues to exist for the preservation of the peace and domestic
tranquility of the nation.37
In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of the
President's appointing power. It held that the appointing power is the exclusive prerogative of
the President, upon which no limitations may be imposed by Congress, except those resulting
from the need of securing concurrence of the Commission on Appointments and from the
exercise of the limited legislative power to prescribe qualifications to a given appointive office.
We now come to the exercise by the President of his powers as Commander-in-
Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that as
Commander-in-Chief of the Armed Forces, the President has the power to determine whether
war, in the legal sense, still continues or has terminated. It ruled that it is within the province of
the political department and not of the judicial department of government to determine when war
is at end.39
In 1952, the Court decided the landmark case of Montenegro v. Castaneda.40 President
Quirino suspended the privilege of the writ of habeas corpus for persons detained or to be
detained for crimes of sedition, insurrection or rebellion. The Court, citing Barcelon, declared
that the authority to decide whether the exigency has arisen requiring the suspension of the
privilege belongs to the President and his decision is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang v. Garcia came.42 Lansang
reversed the previous cases and held that the suspension of the privilege of the writ of habeas
corpus was not a political question. According to the Court, the weight of Barcelon was diluted
by two factors: (1) it relied heavily on Martin v. Mott, which involved the U.S. President's power
to call out the militia which is a much broader power than suspension of the privilege of the writ;
and (2) the privilege was suspended by the American Governor-General whose act, as
representative of the sovereign affecting the freedom of its subjects, could not be equated with
that of the President of the Philippines dealing with the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of habeas
corpus is neither absolute nor unqualified because the Constitution sets limits on the
exercise of executive discretion on the matter. These limits are: (1) that the privilege must
not be suspended except only in cases of invasion, insurrection or rebellion or imminent danger
thereof; and (2) when the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for the suspension shall exist. The extent
of the power which may be inquired into by courts is defined by these limitations. 43
On the vital issue of how the Court may inquire into the President's exercise of power, it
ruled that the function of the Court is not to supplant but merely to check the Executive; to
ascertain whether the President 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. Judicial inquiry is
confined to the question of whether the President did not act arbitrarily. 44 Using this yardstick,
the Court found that the President did not.
The emergency period of the 1970's flooded the Court with cases which raised the political
question defense. The issue divided the Court down the middle. Javellana v. Executive
Secretary45 showed that while a majority of the Court held that the issue of whether or not the
1973 Constitution had been ratified in accordance with the 1935 Constitution was justiciable, a
majority also ruled that the decisive issue of whether the 1973 Constitution had come into force
and effect, with or without constitutional ratification, was a political question. 46
The validity of the declaration of martial law by then President Marcos was next litigated
before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration of martial
law.On whether the validity of the imposition of martial law was a political or justiciable question,
the Court was almost evenly divided. One-half embraced the political question position and the
other half subscribed to the justiciable position in Lansang. Those adhering to the political
question doctrine used different methods of approach to it. 48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v. Enrile.49 The
petitioners therein were arrested and detained by the Philippine Constabulary by virtue of a
Presidential Commitment Order (PCO). Petitioners sought the issuance of a writ of habeas
corpus. The Court found that the PCO had the function of validating a person's detention for any
of the offenses covered in Proclamation No. 2045 which continued in force the suspension of
the privilege of the writ of habeas corpus. It held that the issuance of the PCO by the President
was not subject to judicial inquiry.50 It went further by declaring that there was a need to re-
examine Lansang with a view to reverting to Barcelon and Montenegro. It observed that in times
of war or national emergency, the President must be given absolute control for the very life of
the nation and government is in great peril. The President, it intoned, is answerable only to his
conscience, the people, and God.51
But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v.
Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must inquire
into every phase and aspect of a person's detention from the moment he was taken into custody
up to the moment the court passes upon the merits of the petition. Only after such a scrutiny can
the court satisfy itself that the due process clause of the Constitution has been met. 53
 It is now history that the improper reliance by the Court on the political question
doctrine eroded the people's faith in its capacity to check abuses committed by the then
Executive in the exercise of his commander-in-chief powers, particularly violations
against human rights. The refusal of courts to be pro-active in the exercise of its checking
power drove the people to the streets to resort to extralegal remedies. They gave birth to
EDSA.
Two lessons were not lost to the members of the Constitutional Commission that drafted
the 1987 Constitution. The first was the need to grant this Court the express power to review
the exercise of the powers as commander-in-chief by the President and deny it of any
discretion to decline its exercise. The second was the need to compel the Court to be pro-
active by expanding its jurisdiction and, thus, reject its laid back stance against acts constituting
grave abuse of discretion on the part of any branch or instrumentality of government. Then Chief
Justice Roberto Concepcion, a member of the Constitutional Commission, worked for the
insertion of the second paragraph of Section 1, Article VIII in the draft Constitution,54 which reads:

"Sec. 1. x x x.

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."

The language of the provision clearly gives the Court the power to strike down acts amounting
to grave abuse of discretion of both the legislative and executive branches of government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of our
constitutional history. The provision states:

"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 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
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 basis 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.

x x x."

It is clear from the foregoing that the President, as Commander-in-Chief of the armed
forces of the Philippines, may call out the armed forces subject to two conditions: (1)
whenever it becomes necessary; and (2) to prevent or suppress lawless violence,
invasion or rebellion. Undeniably, these conditions lay down the sine qua requirement for
the exercise of the power and the objective sought to be attained by the exercise of the
power. They define the constitutional parameters of the calling out power. Whether or not
there is compliance with these parameters is a justiciable issue and is not a political
question.
I am not unaware that in the deliberations of the Constitutional Commission, Commissioner
Bernas opined that the President's exercise of the "calling out power," unlike the suspension of
the privilege of the writ of habeas corpus and the declaration of martial law, is not a justiciable
issue but a political question and therefore not subject to judicial review.
It must be borne in mind, however, that while a member's opinion expressed on the floor of
the Constitutional Convention is valuable, it is not necessarily expressive of the people's
intent.55 The proceedings of the Convention are less conclusive on the proper construction of the
fundamental law than are legislative proceedings of the proper construction of a statute, for in
the latter case it is the intent of the legislature the courts seek, while in the former, courts seek
to arrive at the intent of the people through the discussions and deliberations of their
representatives.56 The conventional wisdom is that the Constitution does not derive its force from
the convention which framed it, but from the people who ratified it, the intent to be arrived at is
that of the people.57
It is true that the third paragraph of Section 18, Article VII of the 1987 Constitution
expressly gives the Court the power to review the sufficiency of the factual bases used
by the President in the suspension of the privilege of the writ of habeas corpus and the
declaration of martial law. It does not follow, however, that just because the same
provision did not grant to this Court the power to review the exercise of the calling out
power by the President, ergo, this Court cannot pass upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power merely means
that the Court cannot decline the exercise of its power because of the political question
doctrine as it did in the past. In fine, the express grant simply stresses the mandatory
duty of this Court to check the exercise of the commander-in-chief powers of the
President. It eliminated the discretion of the Court not to wield its power of review thru
the use of the political question doctrine.
It may be conceded that the calling out power may be a "lesser power" compared to the
power to suspend the privilege of the writ of habeas corpus and the power to declare martial
law. Even then, its exercise cannot be left to the absolute discretion of the Chief Executive as
Commander-in-Chief of the armed forces, as its impact on the rights of our people protected by
the Constitution cannot be downgraded. We cannot hold that acts of the commander-in-chief
cannot be reviewed on the ground that they have lesser impact on the civil and political rights of
our people. The exercise of the calling out power may be "benign" in the case at bar but may not
be so in future cases.
 The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Concurring
Opinion in Lansang that it would be dangerous and misleading to push the political question
doctrine too far, is apropos. It will not be complementary to the Court if it handcuffs itself to
helplessness when a grievously injured citizen seeks 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. "58
We should not water down the ruling that deciding whether a matter has been committed by
the Constitution to another branch of government, or whether the action of that branch exceeds
whatever authority has been committed, is a delicate exercise in constitutional interpretation,
and is a responsibility of the Court as ultimate interpreter of the fundamental law.59 When
private justiciable rights are involved in a suit, the Court must not refuse to assume jurisdiction even
though questions of extreme political importance are necessarily involved. 60Every officer under
a constitutional government must act according to law and subject to the controlling power of the
people, acting through the courts, as well as through the executive and legislative. One
department is just as representative of the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law places upon all official
action.61 This historic role of the Court is the foundation stone of a government of laws and not
of men.62
I join the Decision in its result.

SEPARATE OPINION

VITUG, J.:

In the equation of judicial power, neither of two extremes - one totalistic and the other
bounded - is acceptable nor ideal. The 1987 Constitution has introduced its definition of the term
"judicial power" to be that which -

x x x 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 grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.1

It is not meant that the Supreme Court must be deemed vested with the awesome power of
overseeing the entire bureaucracy, let alone of institutionalizing judicial absolutism, under its
mandate. But while this Court does not wield unlimited authority to strike down an act of its two
co-equal branches of government, it must not wither under technical guise on its constitutionally
ordained task to intervene, and to nullify if need be, any such act as and when it is attended
by grave abuse of discretion amounting to lack or excess of jurisdiction. The proscription then
against an interposition by the Court into purely political questions, heretofore known, no longer
holds within that context.
Justice Feria, in the case of Avelino vs. Cuenco,2 has aptly elucidated in his concurring
opinion:

"x x x [I] concur with the majority that this Court has jurisdiction over cases like the
present x x x so as to establish in this country the judicial supremacy, with the
Supreme Court as the final arbiter, to see that no one branch or agency of the
government transcends the Constitution, not only in justiceable but political
questions as well."3

It is here when the Court must have to depart from the broad principle of separation of powers
that disallows an intrusion by it in respect to the purely political decisions of its independent and
coordinate agencies of government.
The term grave abuse of discretion is long understood in our jurisprudence as being, and
confined to, a capricious and whimsical or despotic exercise of judgment amounting to lack or
excess of jurisdiction. Minus the not-so-unusual exaggerations often invoked by litigants in the
duel of views, the act of the President in simply calling on the Armed Forces of the
Philippines, an executive prerogative, to assist the Philippine National Police in "joint
visibility patrols" in the metropolis does not, I believe, constitute grave abuse of discretion that
would now warrant an exercise by the Supreme Court of its extraordinary power as so envisioned
by the fundamental law.
Accordingly, I vote for the dismissal of the petition.

MENDOZA, J., concurring and dissenting:

I concur in the opinion of the Court insofar as it holds petitioner to be without standing to
question the validity of LOI 02/2000 which mandates the Philippine Marines to conduct "joint
visibility" patrols with the police in Metro Manila. But I dissent insofar as the opinion dismisses
the petition in this case on other grounds. I submit that judgment on the substantive constitutional
issues raised by petitioner must await an actual case involving real parties with "injuries" to show
as a result of the operation of the challenged executive action. While as an organization for the
advancement of the rule of law petitioner has an interest in upholding the Constitution, its interest
is indistinguishable from the interest of the rest of the citizenry and falls short of that which is
necessary to give petitioner standing.
As I have indicated elsewhere, a citizens' suit challenging the constitutionality of
governmental action requires that (1) the petitioner must have suffered an "injury in fact" of an
actual or imminent nature; (2) there must be a causal connection between the injury and the
conduct complained of; and (3) the injury is likely to be redressed by a favorable action by this
Court.1The "injury in fact" test requires more than injury to a cognizable interest. It requires that
the party seeking review be himself among those injured.2
My insistence on compliance with the standing requirement is grounded in the conviction
that only a party injured by the operation of the governmental action challenged is in the best
position to aid the Court in determining the precise nature of the problem presented. Many a
time we have adverted to the power of judicial review as an awesome power not to be exercised
save in the most exigent situation. For, indeed, sound judgment on momentous constitutional
questions is not likely to be reached unless it is the result of a clash of adversary arguments
which only parties with direct and specific interest in the outcome of the controversy can
make. This is true not only when we strike down a law or official action but also when we uphold
it.
In this case, because of the absence of parties with real and substantial interest to protect,
we do not have evidence on the effect of military presence in malls and commercial centers, i.e.,
whether such presence is coercive or benign. We do not know whether the presence of so many
marines and policemen scares shoppers, tourists, and peaceful civilians, or whether it is
reassuring to them. To be sure, the deployment of troops to such places is not like parading
them at the Luneta on Independence Day. Neither is it, however, like calling them out because
of actual fighting or the outbreak of violence.
We need to have evidence on these questions because, under the Constitution, the
President's power to call out the armed forces in order to suppress lawless violence, invasion or
rebellion is subject to the limitation that the exercise of this power is required in the interest of
public safety.3
Indeed, whether it is the calling out of the armed forces alone in order to suppress lawless
violence, invasion or rebellion or also the suspension of the privilege of the writ of habeas corpus
or the proclamation of martial law (in case of invasion or rebellion), the exercise of the President's
powers as commander-in-chief, requires proof - not mere assertion.4 As has been pointed out,
"Standing is not `an ingenious academic exercise in the conceivable' . . . but requires . . . a
factual showing of perceptible harm."5
Because of the absence of such record evidence, we are left to guess or even speculate on
these questions. Thus, at one point, the majority opinion says that what is involved here is not
even the calling out of the armed forces but only the use of marines for law enforcement. (p. 13)
At another point, however, the majority opinion somersaults and says that because of bombings
perpetrated by lawless elements, the deployment of troops in shopping centers and public
utilities is justified. (p. 24)
We are likely to err in dismissing the suit brought in this case on the ground that the calling
out of the military does not violate the Constitution, just as we are likely to do so if we grant the
petition and invalidate the executive issuance in question. For indeed, the lack of a real, earnest
and vital controversy can only impoverish the judicial process. That is why, as Justice Laurel
emphasized in the Angara case, "this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties, and limited further
to the constitutional question raised or the very lis mota presented."6
We are told, however, that the issues raised in this case are of "paramount interest" to the
nation. It is precisely because the issues raised are of paramount importance that we should all
the more forego ruling on the constitutional issues raised by petitioner and limit the dismissal of
this petition on the ground of lack of standing of petitioner. A Fabian policy of leaving well enough
alone is a counsel of prudence.
For these reasons and with due appreciation of the scholarly attention lavished by the
majority opinion on the constitutional questions raised, I am constrained to limit my concurrence
to the dismissal of this suit on the ground of lack of standing of petitioner and the consequent
lack of an actual case or controversy.

G.R. No. 135457 September 29, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSE PATRIARCA, JR., alias "KA DJANGO," CARLOS NARRA, alias "KA JESSIE" and TEN (10)
JOHN DOES, accused-appellant.

DECISION

BUENA, J.:

Accused-appellant Jose Patriarca, Jr., with the aliases of "Ka Django," "Carlos Narra" and "Ka Jessie,"
appeals the decision of the Regional Trial Court at Sorsogon, Sorsogon, Branch 52, in Criminal Case No.
2773 entitled "People of the Philippines versus Jose Patriarca, Jr. alias 'Ka Django,' 'Carlos Narra,' 'Ka
Jessie,' and 21 John Does" convicting him of murder and sentencing him to reclusion perpetua.
On August 16, 1990, an information for murder was filed against Jose Patriarca, Jr., alias "Ka Django,"
"Carlos Narra", "Ka Jessie," et al., charging them of murder committed as follows:

"That on or about the 30th day of June, 1987 at about 10:00 o'clock in the evening in the Municipality of
Donsol, Province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused conspiring, confederating and mutually helping one another, armed with guns, forcibly took
away ALFREDO AREVALO from his residence and brought him to Sitio Abre, Mabini, Donsol, Sorsogon,
and did then and there willfully, unlawfully and feloniously with intent to kill, with treachery and evident
premeditation, attack, assault and shoot ALFREDO AREVALO thereby inflicting upon him mortal wounds,
which directly caused his death to the damage and prejudice of his legal heirs.

"CONTRARY TO LAW."

Accused-appellant Jose Patriarca, Jr. was also charged with Murder for the killing of one Rudy de Borja and
a certain Elmer Cadag under Informations docketed as Criminal Cases Nos. 2665 and 2672, respectively.

Upon arraignment on November 25, 1993, accused-appellant, assisted by his counsel de parte, pleaded not
guilty to the crimes charged. Joint trial of the three cases was conducted considering the substantial identity
of the facts and circumstances of the case.

Prosecution witness Nonito Malto testified that on June 30, 1987, the accused, with ten (10) armed
companions, requested permission to rest in his house, which was granted. They had with them a person
who was hogtied. Accused Patriarca asked that the lights in Malto's house be extinguished and Malto
complied.

Around 2:00 o'clock in the early morning of July 1, 1987, Malto was awakened by a gunshot. When he
looked out, he saw Patriarca holding a gun and ordering the person who was hogtied to lie down. After
several minutes, Malto heard two gunshots. He then heard the accused direct his companions to carry away
the dead man.

Nonito Malto, later on, learned that the dead man was Alfredo Arevalo when Patriarca went back to his
place, together with the military, on March 29, 1990.

The skeletal remains of Alfredo Arevalo were recovered in the property of a Rubuang Tolosa and were
identified by Elisa Arevalo, the mother of the victim.

The second witness for the prosecution was Elisa Arevalo. She knew Patriarca, alias "Ka Django", as he told
her on March 10, 1987 not to let her son join the military. She, however, replied that they were only seeking
employment. Her son Alfredo was her companion in attending to their farm and he was a member of the
Civilian Home Defense Force (CHDF) in their locality.

After she was informed by her tenant Alegria Moratelio Alcantara that her son was abducted by the New
People's Army (NPA) led by Patriarca, she reported the matter to the military and looked for him. She was
informed by the residents of the place where the NPA passed, that they saw her son hogtied, that her son
even asked for drinking water, and complained that he was being maltreated by the NPA. After three days of
searching, a certain Walter Ricafort, an NPA member and a relative of hers, notified her that her son Alfredo
was killed by Jose Patriarca, Jr.

In the municipal building, Nonito Malto likewise informed her of her son's death in the hands of Ka Django.
Consequently, a Death Certificate was issued by the Local Civil Registrar.

When the skeletal remains of a man were recovered, she was able to identify them as belonging to her son
by reason of the briefs found in the burial site. Her son, Alfredo Arevalo, used to print his name on the
waistband of his briefs so that it would not get lost.
The defense presented accused Jose Patriarca, Jr. and Francisco Derla who admitted that accused is a
member of the NPA operating in Donsol, Sorsogon, but denied ever abducting the victims in the three
criminal cases filed against him.

On January 20, 1998, a decision was rendered convicting the accused and imposing the following penalty:

"WHEREFORE, premises considered, the Court finds accused Jose Patriarca, Jr. alias Ka Django, alias
Carlos Narra guilty beyond reasonable doubt of the crime of Murder for the death of Alfredo Arevalo and
hereby sentences him to suffer an imprisonment of reclusion perpetua with all the accessory provided by law
and to pay the amount of P50,000.00 as civil indemnity to the heirs of the victim Alfredo Arevalo, without
subsidiary imprisonment in case of insolvency and as regards Crim. Case No. 2665 and Crim. Case No.
2672, for failure of the prosecution to prove the guilt of the accused beyond reasonable doubt, said Jose
Patriarca alias Carlos Narra, Ka Django, is hereby acquitted.

"In the service of his sentence, the accused shall be given full credit of his period of detention.

"With cost de-oficio.

"SO ORDERED."1

Hence, this appeal where accused-appellant assigns the following lone error allegedly committed by the trial
court:

THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME OF MURDER,
AN OFFENSE COMMITTED IN PURSUANCE OR IN FURTHERANCE OF REBELLION.

Accused-appellant applied for amnesty under Proclamation No. 724 amending Proclamation No. 347, dated
March 25, 1994, 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 Article of War, and Creating a National Amnesty Commission." His application was
favorably granted by the National Amnesty Board. Attached to appellant's brief is the Notice of Resolution of
the National Amnesty Commission (NAC) dated November 17, 1999 which states:

"Quoted below is a resolution of the National Amnesty Commission dated 22 October 1998.2

'RESOLUTION NO. D-99-8683 refers to Application No. 02125 of MR. JOSE NARRA PATRIARCA filed with
the Local Amnesty Board of Legazpi City on 18 February 1997.

'Applicant admitted joining the NPA in 1977. He served under the Sandatahang Yunit Pampropaganda and
participated in the following armed activities:

'a) Encounter with the Philippine Army forces at Barangay Hirawon, Donsol, Sorsogon on 14
February 1986;

'b) Encounter with elements of the Philippine Constabulary at Barangay Godon, Donsol, Sorsogon
on 15 February 1986;

'c) Encounter with the Philippine Army forces at Barangay Banwang, Gurang, Donsol, Sorsogon in
1987;

'd) Liquidation of ELMER CADAG an alleged military informer at Barangay Boroan, Donsol,
Sorsogon, on 21 March 1987, in which a case of Murder in Criminal Case No. 2672 was filed against
him before the Regional Trial Court, Branch 52, Sorsogon, Sorsogon;

'e) Liquidation of a certain RUDY DEBORJA, a thief and nuisance of the community, at Donsol,
Sorsogon, on 09 March 1984, in which a case of Murder in Criminal Case No. 2665 was filed against
him before the Regional Trial Court, Branch 52, Sorsogon, Sorsogon;
 'f) Liquidation of a certain ALEJANDRINO MILITANTE for his misconducts at San Antonio, Donsol,
Sorsogon, on 12 February 1986, in which a case of Murder in Criminal Case No. 2664 was filed
against him before the Regional Trial Court, Branch 52, Sorsogon, Sorsogon;

'g) Liquidation of a certain ALFREDO AREVALO, a former member of the CHDF at Sitio Abe (sic),
Mabini, Donsol, Sorsogon, on 30 June 1987, in which a case of Murder in Criminal Case No. 2773
was filed against him before the Regional Trial Court, Branch 52, Sorsogon, Sorsogon;

'h) Liquidation of one DOMINGO DONQUILLO, a barangay captain, at Barangay Tinanogan, Donsol,
Sorsogon, on 20 September 1986 in which a (sic) Criminal Case No. 2663 was filed against him.

'After a careful verification and evaluation on (sic) the claims of the applicant, the Local Amnesty Board
concluded that his activities were done in the pursuit of his political beliefs. It thus recommended on 20 May
1998 the grant of his application for amnesty.

'The Commission, in its deliberation on the application on 22 October 1999, resolved to approve the
recommendation of the Local Amnesty Board.

'WHEREFORE, the application for amnesty of MR. JOSE NARRA PATRIARCA under Proclamation No. 724
is hereby GRANTED for rebellion constituted by the acts detailed above, provided they were committed on
or before the date he was captured on 22 June 1988. Let a Certificate of Amnesty be issued in his favor as
soon as this Resolution becomes final. It shall become final after the lapse of fifteen (15) calendar days from
receipt of this Notice, unless a Motion for Reconsideration is filed with the Commission by any party within
said period.'"3

On March 9, 2000, Hon. Alfredo F. Tadiar, Chairman of the National Amnesty Commission, wrote the
following letter to the Provincial Prosecutor of Sorsogon, Sorsogon:

"Notice of Amnesty Grant to Jose N. Patriarca"

"Pursuant to NAC Action No. 95-358-C, we are transmitting herewith the attached copy of RESOLUTION
NO. D-99-8683 granting amnesty to JOSE N. PATRIARCA. The grantee was accused of the following
cases:

"1. Murder in Criminal Case No. 2672 filed before the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.

"2. Murder in Criminal Case No. 2665 filed before the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.

"3. Murder in Criminal Case No. 2664 filed before the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.

"4. Murder in Criminal Case No. 2773 filed before the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.

"5. Murder in Criminal Case No. 2663 filed before the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.

"He is currently detained at the Provincial Jail, Sorsogon, Sorsogon.

"The purpose of this transmittal is to provide you, as the chief prosecutor of the province, the opportunity to
take whatever action you may deem appropriate from receipt of this note. This grant of amnesty shall
become final after the lapse of fifteen (15) calendar days from receipt of this Notice, unless a Motion for
Reconsideration is filed with the Commission by any party within said period.

"Thank you for your continued support for the Peace Process."4
The Office of the Solicitor General, in its letter dated June 23, 2000 to the National Amnesty Commission,
requested information as to whether or not a motion for reconsideration was filed by any party, and the
action, if there was any, taken by the NAC.5

In his reply dated June 28, 2000, NAC Chairman Tadiar wrote, among other things, that there has been no
motion for reconsideration filed by any party.6

Accused-appellant Jose N. Patriarca, Jr. was granted amnesty under Proclamation No. 724 dated May 17,
1996. It amended Proclamation No. 347 dated March 25, 1994.

Section 1 of Proclamation No. 724 reads thus:

"Section 1. Grant of Amnesty. - Amnesty is hereby granted to all persons who shall apply therefor and who
have or may have committed crimes, on or before June 1, 1995, in pursuit of their political beliefs, whether
punishable under the Revised Penal Code or special laws, including but not limited to the following: rebellion
or insurrection; coup d'etat; conspiracy and proposal to commit rebellion, insurrection, or coup d'etat;
disloyalty of public officers or employees; inciting to rebellion or insurrection; sedition; conspiracy to commit
sedition; inciting to sedition; illegal assembly; illegal association; direct assault; indirect assault; resistance
and disobedience to a person in authority or agents of such person; tumults and other disturbances of public
order; unlawful use of means of publication and unlawful utterances; alarms and scandals; illegal possession
of firearms, ammunitions, and explosives, committed in furtherance of, incident to, or in connection with the
crimes of rebellion and insurrection; and violations of Articles 59 (desertion), 62 (absence without leave), 67
(mutiny or sedition), 68 (failure to suppress mutiny or sedition), 94 (various crimes), 96 (conduct unbecoming
an officer and gentleman), and 97 (general article) of the Articles of War; Provided, That the amnesty shall
not cover crimes against chastity and other crimes for personal ends." 1âwphi1

Amnesty commonly denotes 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.7 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.8

Paragraph 3 of Article 89 of the Revised Penal Code provides that criminal liability is totally extinguished by
amnesty, which completely extinguishes the penalty and all its effects.

In the case of People vs. Casido,9 the difference between pardon and amnesty is given:

"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, 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 'not 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."

This Court takes judicial notice of the grant of amnesty upon accused-appellant Jose N. Patriarca, Jr. Once
granted, it is binding and effective. It serves to put an end to the appeal.10

WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the Regional Trial Court at Sorsogon,
Sorsogon, Branch 52 in Criminal Case No. 2773 is REVERSED and SET ASIDE. Accused-appellant Jose
N. Patriarca, Jr. is hereby ACQUITTED of the crime of murder.
Pursuant to Resolution No. D-99-8683,11 Criminal Case Nos. 2663 and 2664, which are both filed in the
Regional Trial Court, Branch 53, Sorsogon, Sorsogon,12 are ordered DISMISSED. The release of Jose N.
Patriarca who is presently detained at the Provincial Jail of Sorsogon is likewise ORDERED unless he is
being detained for some other legal cause.

The Director of Prisons is ordered to report within ten (10) days his compliance with this decision.

SO ORDERED.

G.R. No. 180643 September 4, 2008

ROMULO L. NERI, petitioner,

vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE
COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND
SECURITY, respondents.

RESOLUTION

LEONARDO-DE CASTRO, J.:

Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to
protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the
nation will receive the benefit of candid, objective and untrammeled communication and exchange of information
between the President and his/her advisers in the process of shaping or forming policies and arriving at decisions
in the exercise of the functions of the Presidency under the Constitution. The confidentiality of the President’s
conversations and correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It
possesses the same value as the right to privacy of all citizens and more, because it is dictated by public interest
and the constitutionally ordained separation of governmental powers.

In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even
acrimoniously, debated dispute between the Court’s co-equal branches of government. In this task, this Court
should neither curb the legitimate powers of any of the co-equal and coordinate branches of government nor allow
any of them to overstep the boundaries set for it by our Constitution. The competing interests in the case at bar
are the claim of executive privilege by the President, on the one hand, and the respondent Senate Committees’
assertion of their power to conduct legislative inquiries, on the other. The particular facts and circumstances of the
present case, stripped of the politically and emotionally charged rhetoric from both sides and viewed in the light of
settled constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive privilege must
be upheld.

Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the
petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on
Accountability of Public Officers and Investigations,1 Trade and Commerce,2 and National Defense and Security
(collectively the "respondent Committees").3

A brief review of the facts is imperative.

On September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven (11)
hours on matters concerning the National Broadband Project (the "NBN Project"), a project awarded by the
Department of Transportation and Communications ("DOTC") to Zhong Xing Telecommunications Equipment
("ZTE"). Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman Benjamin Abalos
offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed
President Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed him not to
accept the bribe. However, when probed further on President Arroyo and petitioner’s discussions relating to the
NBN Project, petitioner refused to answer, invoking "executive privilege." To be specific, petitioner refused to
answer questions on: (a) whether or not President Arroyo followed up the NBN Project, 4 (b) whether or not she
directed him to prioritize it,5 and (c) whether or not she directed him to approve it.6
Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring him to
appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R.
Ermita wrote to respondent Committees and requested them to dispense with petitioner’s testimony on the ground
of executive privilege.7The letter of Executive Secretary Ermita pertinently stated:

Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive privilege
(Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining
the confidentiality of conversations of the President is necessary in the exercise of her executive and
policy decision making process. The expectation of a President to the confidentiality of her conversations
and correspondences, like the value which we accord deference for the privacy of all citizens, is the
necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on
the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not
protected by the confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information sought to be disclosed
might impair our diplomatic as well as economic relations with the People’s Republic of China. Given the
confidential nature in which these information were conveyed to the President, he cannot provide the
Committee any further details of these conversations, without disclosing the very thing the privilege is
designed to protect.

In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.

Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour
hearing, wherein he has answered all questions propounded to him except the foregoing questions
involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE /
NBN project be dispensed with.

On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the President
invoking executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter
requiring him to explain why he should not be cited in contempt. On November 29, 2007, in petitioner’s reply to
respondent Committees, he manifested that it was not his intention to ignore the Senate hearing and that he
thought the only remaining questions were those he claimed to be covered by executive privilege. He also
manifested his willingness to appear and testify should there be new matters to be taken up. He just requested
that he be furnished "in advance as to what else" he "needs to clarify."

Respondent Committees found petitioner’s explanations unsatisfactory. Without responding to his request for
advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008; In Re:
P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN
Project), citing petitioner in contempt of respondent Committees and ordering his arrest and detention at the
Office of the Senate Sergeant-at-Arms until such time that he would appear and give his testimony.

On the same date, petitioner moved for the reconsideration of the above Order.8 He insisted that he had not
shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on
new matters, but respondent Committees did not respond to his request for advance notice of questions. He also
mentioned the petition for certiorari he previously filed with this Court on December 7, 2007. According to him, this
should restrain respondent Committees from enforcing the order dated January 30, 2008 which declared him in
contempt and directed his arrest and detention.

Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary
Injunction) on February 1, 2008. In the Court’s Resolution dated February 4, 2008, the parties were required to
observe the status quo prevailing prior to the Order dated January 30, 2008.

On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications elicited
by the three (3) questions were covered by executive privilege; and second, respondent Committees committed
grave abuse of discretion in issuing the contempt order. Anent the first ground, we considered the subject
communications as falling under the presidential communications privilege because (a) they related to a
quintessential and non-delegable power of the President, (b) they were received by a close advisor of the
President, and (c) respondent Committees failed to adequately show a compelling need that would justify the
limitation of the privilege and the unavailability of the information elsewhere by an appropriate investigating
authority. As to the second ground, we found that respondent Committees committed grave abuse of discretion in
issuing the contempt order because (a) there was a valid claim of executive privilege, (b) their invitations to
petitioner did not contain the questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of
the proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the
Constitution because their inquiry was not in accordance with the "duly published rules of procedure," and (e) they
issued the contempt order arbitrarily and precipitately.

On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the following
grounds:

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO DOUBT THAT THE

ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE
EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS.

II

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE CAN BE NO PRESUMPTION

THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED.

III

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO FACTUAL OR LEGAL

BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3)
QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT:

A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS

CLAIMED CONSTITUTE STATE SECRETS.

B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS APPLIED,
THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS
PRIVILEGE ARE PRESENT.

C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO JUSTIFY

THE DISCLOSURE OF THE INFORMATION SOUGHT.

D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD

SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE OF THEIR PRIMARY FUNCTION TO
ENACT LAWS.

E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE

CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH
THE CLAIM OF EXECUTIVE PRIVILEGE.

IV

CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS DID NOT COMMIT

GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING
THAT:

A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE
V. ERMITA.
 C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR
INTERNAL RULES.

D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21 OF
THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED, AND
WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE OSG’S INTERVENTION ON
THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT.

E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR

PRECIPITATE.

In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of this
Court. He avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project
or asking him additional questions. According to petitioner, the Court merely applied the rule on executive
privilege to the facts of the case. He further submits the following contentions: first, the assailed Decision did not
reverse the presumption against executive secrecy laid down in Senate v. Ermita; second, respondent
Committees failed to overcome the presumption of executive privilege because it appears that they could legislate
even without the communications elicited by the three (3) questions, and they admitted that they could dispense
with petitioner’s testimony if certain NEDA documents would be given to them; third, the requirement of specificity
applies only to the privilege for State, military and diplomatic secrets, not to the necessarily broad and all-
encompassing presidential communications privilege; fourth, there is no right to pry into the President’s thought
processes or exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court
has the power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure
of the present Senate to publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a
vitiating effect on them; eighth, the requirement for a witness to be furnished advance copy of questions
comports with due process and the constitutional mandate that the rights of witnesses be respected; and ninth,
neither petitioner nor respondent has the final say on the matter of executive privilege, only the Court.

For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement from the
Court that the assailed Orders were issued by respondent Committees pursuant to their oversight function; hence,
there is no reason for them "to make much" of the distinction between Sections 21 and 22, Article VI of the
Constitution; (2) presidential communications enjoy a presumptive privilege against disclosure as earlier held
in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the communications elicited by the
three (3) questions are covered by executive privilege, because all the elements of the presidential
communications privilege are present; (4) the subpoena ad testificandum issued by respondent Committees to
petitioner is fatally defective under existing law and jurisprudence; (5) the failure of the present Senate to publish
its Rules renders the same void; and (6) respondent Committees arbitrarily issued the contempt order.

Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008 (granting the Office of the
Solicitor General’s Motion for Leave to Intervene and to Admit Attached Memorandum) only after the
promulgation of the Decision in this case is foreclosed by its untimeliness.

The core issues that arise from the foregoing respective contentions of the opposing parties are as follows:

(1) whether or not there is a recognized presumptive presidential communications privilege in our legal
system;

(2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3)
questions are covered by executive privilege;

(3) whether or not respondent Committees have shown that the communications elicited by the three (3)
questions are critical to the exercise of their functions; and

(4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt
order.

We shall discuss these issues seriatim.

I
 There Is a Recognized Presumptive
Presidential Communications Privilege

Respondent Committees ardently argue that the Court’s declaration that presidential communications are
presumptively privileged reverses the "presumption" laid down in Senate v. Ermita11 that "inclines heavily against
executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court erred in relying
on the doctrine in Nixon.

Respondent Committees argue as if this were the first time the presumption in favor of the presidential
communications privilege is mentioned and adopted in our legal system. That is far from the truth. The Court, in
the earlier case of Almonte v. Vasquez,12 affirmed that the presidential communications privilege is
fundamental to the operation of government and inextricably rooted in the separation of powers under the
Constitution. Even Senate v. Ermita,13 the case relied upon by respondent Committees, reiterated this concept.
There, the Court enumerated the cases in which the claim of executive privilege was recognized, among
them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14 and Chavez v.
PEA.15 The Court articulated in these cases that "there are certain types of information which the government may
withhold from the public,16" that there is a "governmental privilege against public disclosure with respect to state
secrets regarding military, diplomatic and other national security matters"; 17 and that "the right to information
does not extend to matters recognized as ‘privileged information’ under the separation of powers, by
which the Court meant Presidential conversations, correspondences, and discussions in closed-door
Cabinet meetings."18

Respondent Committees’ observation that this Court’s Decision reversed the "presumption that inclines heavily
against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the said Decision.
The Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no specific
portion thereof should be isolated and resorted to, but the decision must be considered in its entirety. 19

Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita,
which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent portion
of the decision in the said case reads:

From the above discussion on the meaning and scope of executive privilege, both in the United States
and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or
not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is
any recognition that executive officials are exempt from the duty to disclose information by the mere fact
of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the
presumption inclines heavily against executive secrecy and in favor of disclosure. (Emphasis and
underscoring supplied)

Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption" being
claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in
the Executive Branch. This means that when an executive official, who is one of those mentioned in the said Sec.
2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of authorization to
invoke executive privilege given by the President to said executive official, such that the presumption in this
situation inclines heavily against executive secrecy and in favor of disclosure.

Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a
certain information is privileged, such determination is presumed to bear the President’s authority and has
the effect of prohibiting the official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such official. These provisions thus
allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with respect to information the confidential nature of which
is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those
instances where exemption from disclosure is necessary to the discharge of highly important executive
 responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information
must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being,
by definition, an exemption from the obligation to disclose information, in this case to Congress, the
necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a
particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President
the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the
privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of
the President", which means that he personally consulted with her. The privilege being an extraordinary
power, it must be wielded only by the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power. There is even less reason to
uphold such authorization in the instant case where the authorization is not explicit but by mere silence.
Section 3, in relation to Section 2(b), is further invalid on this score.

The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the
President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on
a specific matter involving an executive agreement between the Philippines and China, which was the subject of
the three (3) questions propounded to petitioner Neri in the course of the Senate Committees’ investigation. Thus,
the factual setting of this case markedly differs from that passed upon in Senate v. Ermita.

Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling
in Senate v. Ermita,21 to wit:

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has
been defined and used in the legal literature of the United States.

Schwart defines executive privilege as "the power of the Government to withhold information from
the public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the President and
high-level executive branch officers to withhold information from Congress, the courts, and ultimately the
public." x x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court in
Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted
the following portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and correspondences, like
the claim of confidentiality of judicial deliberations, for example, he has all the values to which we
accord deference for the privacy of all citizens and, added to those values, is the necessity for protection
of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-
making. A President and those who assist him must be free to explore alternatives in the process of
shaping policies and making decisions and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government and inextricably
rooted in the separation of powers under the Constitution x x x " (Emphasis and italics supplied)

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication,"
which was recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita adverted to
in the Motion for Reconsideration of respondent Committees, referring to the non-existence of a "presumptive
authorization" of an executive official, to mean that the "presumption" in favor of executive privilege "inclines
heavily against executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and
make the same engage in self-contradiction.

Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the Executive
Department and the Legislative Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the President’s subordinate officials, as follows:
 When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one executive official may be exempted from this power - the
President on whom executive power is vested, hence, beyond the reach of Congress except through the
power of impeachment. It is based on he being the highest official of the executive branch, and the due
respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom.
(Underscoring supplied)

Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the
President on a matter clearly within the domain of the Executive, the said presumption dictates that the same be
recognized and be given preference or priority, in the absence of proof of a compelling or critical need for
disclosure by the one assailing such presumption. Any construction to the contrary will render meaningless the
presumption accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates
jurisprudence citing "the considerations justifying a presumptive privilege for Presidential communications."23

II

There Are Factual and Legal Bases to

Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege

Respondent Committees claim that the communications elicited by the three (3) questions are not covered by
executive privilege because the elements of the presidential communications privilege are not present.

A. The power to enter into an executive agreement is a "quintessential and non-delegable presidential
power."

First, respondent Committees contend that the power to secure a foreign loan does not relate to a "quintessential
and non-delegable presidential power," because the Constitution does not vest it in the President alone, but also
in the Monetary Board which is required to give its prior concurrence and to report to Congress.

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make such power less executive.
"Quintessential" is defined as the most perfect embodiment of something, the concentrated essence of
substance.24 On the other hand, "non-delegable" means that a power or duty cannot be delegated to another or,
even if delegated, the responsibility remains with the obligor. 25 The power to enter into an executive agreement is
in essence an executive power. This authority of the President to enter into executive agreements without the
concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. 26 Now, the fact that
the President has to secure the prior concurrence of the Monetary Board, which shall submit to Congress a
complete report of its decision before contracting or guaranteeing foreign loans, does not diminish the executive
nature of the power.

The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of
government by no means prescribes absolute autonomy in the discharge by each branch of that part of the
governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and
balances, which has been carefully calibrated by the Constitution to temper the official acts of each of these three
branches. Thus, by analogy, the fact that certain legislative acts require action from the President for their validity
does not render such acts less legislative in nature. A good example is the power to pass a law. Article VI,
Section 27 of the Constitution mandates that every bill passed by Congress shall, before it becomes a law, be
presented to the President who shall approve or veto the same. The fact that the approval or vetoing of the bill is
lodged with the President does not render the power to pass law executive in nature. This is because the power
to pass law is generally a quintessential and non-delegable power of the Legislature. In the same vein, the
executive power to enter or not to enter into a contract to secure foreign loans does not become less executive in
nature because of conditions laid down in the Constitution. The final decision in the exercise of the said executive
power is still lodged in the Office of the President.

B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the presidential
communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational
proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential communications
privilege to communications between those who are ‘operationally proximate’ to the President but who may have
"no direct communications with her."

It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed Case27precisely to
limit the scope of the presidential communications privilege. The U.S. court was aware of the dangers that a
limitless extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to White
House staff, and not to staffs of the agencies, and then only to White House staff that has "operational proximity"
to direct presidential decision-making, thus:

We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the
privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege
that is bottomed on a recognition of the unique role of the President. In order to limit this risk, the
presidential communications privilege should be construed as narrowly as is consistent with ensuring that
the confidentiality of the President’s decision-making process is adequately protected. Not every person
who plays a role in the development of presidential advice, no matter how remote and removed
from the President, can qualify for the privilege. In particular, the privilege should not extend to
staff outside the White House in executive branch agencies. Instead, the privilege should apply only
to communications authored or solicited and received by those members of an immediate White House
advisor’s staff who have broad and significant responsibility for investigation and formulating the advice to
be given the President on the particular matter to which the communications relate. Only
communications at that level are close enough to the President to be revelatory of his
deliberations or to pose a risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it is
"operational proximity" to the President that matters in determining whether "[t]he President’s
confidentiality interests" is implicated). (Emphasis supplied)

In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear
apparently entertained by respondents) is absent because the official involved here is a member of the Cabinet,
thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of her official family.
Nevertheless, in circumstances in which the official involved is far too remote, this Court also mentioned in the
Decision the organizational test laid down in Judicial Watch, Inc. v. Department of Justice.28 This goes to show
that the operational proximity test used in the Decision is not considered conclusive in every case. In determining
which test to use, the main consideration is to limit the availability of executive privilege only to officials who stand
proximate to the President, not only by reason of their function, but also by reason of their positions in the
Executive’s organizational structure. Thus, respondent Committees’ fear that the scope of the privilege would be
unnecessarily expanded with the use of the operational proximity test is unfounded.

C. The President’s claim of executive privilege is not merely based on a generalized interest; and in
balancing respondent Committees’ and the President’s clashing interests, the Court did not disregard the
1987 Constitutional provisions on government transparency, accountability and disclosure of
information.

Third, respondent Committees claim that the Court erred in upholding the President’s invocation, through the
Executive Secretary, of executive privilege because (a) between respondent Committees’ specific and
demonstrated need and the President’s generalized interest in confidentiality, there is a need to strike the balance
in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of the 1987
Philippine Constitution on government transparency, accountability and disclosure of information, specifically,
Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section 10;33 Article
VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37

It must be stressed that the President’s claim of executive privilege is not merely founded on her generalized
interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita
specified presidential communications privilege in relation to diplomatic and economic relations with
another sovereign nation as the bases for the claim. Thus, the Letter stated:

The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the People’s Republic of
China. Given the confidential nature in which this information were conveyed to the President, he cannot
provide the Committee any further details of these conversations, without disclosing the very thing the
privilege is designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons for the
claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This
is a matter of respect for a coordinate and co-equal department.

It is easy to discern the danger that goes with the disclosure of the President’s communication with her advisor.
The NBN Project involves a foreign country as a party to the agreement. It was actually a product of the meeting
of minds between officials of the Philippines and China. Whatever the President says about the agreement -
particularly while official negotiations are ongoing - are matters which China will surely view with particular
interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as well as economic
relations with the People’s Republic of China. We reiterate the importance of secrecy in matters involving foreign
negotiations as stated in United States v. Curtiss-Wright Export Corp., 38 thus:

The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and
even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual
concessions which may have been proposed or contemplated would be extremely impolitic, for this might
have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger
and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent
reason for vesting the power of making treaties in the President, with the advice and consent of the
Senate, the principle on which the body was formed confining it to a small number of members. To admit,
then, a right in the House of Representatives to demand and to have as a matter of course all the papers
respecting a negotiation with a foreign power would be to establish a dangerous precedent.

US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a
negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v.
Thomas G. Aquino, et al.39upheld the privileged character of diplomatic negotiations. In Akbayan, the Court
stated:

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing
valid limitations on the right to information, the Court in Chavez v. PCGG held that "information on inter-
government exchanges prior to the conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest." Even earlier, the same privilege was upheld
in People’s Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons
for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s
representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement.
The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not
violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of
access to information." The Resolution went on to state, thus:

The nature of diplomacy requires centralization of authority and expedition of decision

which are inherent in executive action. Another essential characteristic of diplomacy is its
confidential nature.Although much has been said about "open" and "secret" diplomacy, with
disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and
justified the practice. In the words of Mr. Stimson:

"A complicated negotiation …cannot be carried through without many, many

private talks and discussion, man to man; many tentative suggestions and
proposals. Delegates from other countries come and tell you in confidence of their
troubles at home and of their differences with other countries and with other
delegates; they tell you of what they would do under certain circumstances and
would not do under other circumstances… If these reports… should become
public… who would ever trust American Delegations in another
conference? (United States Department of State, Press Releases, June 7, 1930, pp.
282-284)

xxxx
 There is frequent criticism of the secrecy in which negotiation with foreign powers on
nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of
democracy. As expressed by one writer, "It can be said that there is no more rigid system of
silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co.,
1938) President Wilson in starting his efforts for the conclusion of the World War declared that we
must have "open covenants, openly arrived at." He quickly abandoned his thought.

No one who has studied the question believes that such a method of publicity is possible. In the
moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed
speech by one of the parties or a frank declaration of the concession which are exacted or
offered on both sides would quickly lead to a widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully published, there is
ample opportunity for discussion before it is approved. (The New American Government and
Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that the
President is the sole organ of the nation in its negotiations with foreign countries,viz:

"x x x In this vast external realm, with its important, complicated, delicate and manifold problems,
the President alone has the power to speak or listen as a representative of the nation.
He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the
field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As
Marshall said in his great arguments of March 7, 1800, in the House of Representatives, "The
President is the sole organ of the nation in its external relations, and its sole
representative with foreign nations." Annals, 6th Cong., col. 613… (Emphasis supplied;
underscoring in the original)

Considering that the information sought through the three (3) questions subject of this Petition involves the
President’s dealings with a foreign nation, with more reason, this Court is wary of approving the view that
Congress may peremptorily inquire into not only official, documented acts of the President but even her
confidential and informal discussions with her close advisors on the pretext that said questions serve some vague
legislative need. Regardless of who is in office, this Court can easily foresee unwanted consequences of
subjecting a Chief Executive to unrestricted congressional inquiries done with increased frequency and great
publicity. No Executive can effectively discharge constitutional functions in the face of intense and unchecked
legislative incursion into the core of the President’s decision-making process, which inevitably would involve her
conversations with a member of her Cabinet.

With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of the people
to information and public accountability and transparency, the Court finds nothing in these arguments to support
respondent Committees’ case.

There is no debate as to the importance of the constitutional right of the people to information and the
constitutional policies on public accountability and transparency. These are the twin postulates vital to the
effective functioning of a democratic government. The citizenry can become prey to the whims and caprices of
those to whom the power has been delegated if they are denied access to information. And the policies on public
accountability and democratic government would certainly be mere empty words if access to such information of
public concern is denied.

In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did not
in any way curb the public’s right to information or diminish the importance of public accountability and
transparency.

This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is
nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project. They
could continue the investigation and even call petitioner Neri to testify again. He himself has repeatedly expressed
his willingness to do so. Our Decision merely excludes from the scope of respondents’ investigation the three (3)
questions that elicit answers covered by executive privilege and rules that petitioner cannot be compelled to
appear before respondents to answer the said questions. We have discussed the reasons why these answers are
covered by executive privilege. That there is a recognized public interest in the confidentiality of such information
is a recognized principle in other democratic States. To put it simply, the right to information is not an absolute
right.

Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to
information. By their wording, the intention of the Framers to subject such right to the regulation of the law is
unmistakable. The highlighted portions of the following provisions show the obvious limitations on the right to
information, thus:

Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law.

Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest. (Emphasis
supplied)

In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific laws
prescribing the exact limitations within which the right may be exercised or the correlative state duty may be
obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1) national security
matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information.
National security matters include state secrets regarding military and diplomatic matters, as well as information on
inter-government exchanges prior to the conclusion of treaties and executive agreements. It was further held
that even where there is no need to protect such state secrets, they must be "examined in strict
confidence and given scrupulous protection."

Incidentally, the right primarily involved here is the right of respondent Committees to obtain information
allegedly in aid of legislation, not the people’s right to public information. This is the reason why we stressed in the
assailed Decision the distinction between these two rights. As laid down in Senate v. Ermita, "the demand of a
citizen for the production of documents pursuant to his right to information does not have the same obligatory
force as a subpoena duces tecum issued by Congress" and "neither does the right to information grant a citizen
the power to exact testimony from government officials." As pointed out, these rights belong to Congress, not to
the individual citizen. It is worth mentioning at this juncture that the parties here are respondent Committees and
petitioner Neri and that there was no prior request for information on the part of any individual citizen. This Court
will not be swayed by attempts to blur the distinctions between the Legislature's right to information in a legitimate
legislative inquiry and the public's right to information.

For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from
inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by
executive privilege.

III.

Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions

In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the
purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.

At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees’ inquiry
into the NBN Project. To reiterate, this Court recognizes respondent Committees’ power to investigate the NBN
Project in aid of legislation. However, this Court cannot uphold the view that when a constitutionally guaranteed
privilege or right is validly invoked by a witness in the course of a legislative investigation, the legislative purpose
of respondent Committees’ questions can be sufficiently supported by the expedient of mentioning statutes and/or
pending bills to which their inquiry as a whole may have relevance. The jurisprudential test laid down by this Court
in past decisions on executive privilege is that the presumption of privilege can only be overturned by a showing
of compelling need for disclosure of the information covered by executive privilege.
In the Decision, the majority held that "there is no adequate showing of a compelling need that would justify the
limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating
authority." In the Motion for Reconsideration, respondent Committees argue that the information elicited by the
three (3) questions are necessary in the discharge of their legislative functions, among them, (a) to consider the
three (3) pending Senate Bills, and (b) to curb graft and corruption.

We remain unpersuaded by respondents’ assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it
is necessary to resolve the competing interests in a manner that would preserve the essential functions of each
branch. There, the Court weighed between presidential privilege and the legitimate claims of the judicial process.
In giving more weight to the latter, the Court ruled that the President's generalized assertion of privilege must yield
to the demonstrated, specific need for evidence in a pending criminal trial.

The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further ratiocinated,
through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting opinion, as follows:

"... this presumptive privilege must be considered in light of our historic commitment to the rule of law.
This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that
guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We
have elected to employ an adversary system of criminal justice in which the parties contest all issues
before a court of law. The need to develop all relevant facts in the adversary system is both
fundamental and comprehensive. The ends of criminal justice would be defeated if judgments
were to be founded on a partial or speculative presentation of the facts. The very integrity of the
judicial system and public confidence in the system depend on full disclosure of all the facts,
within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the
function of courts that compulsory process be available for the production of evidence needed either
by the prosecution or by the defense.

xxx xxx xxx

The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The
Sixth Amendment explicitly confers upon every defendant in a criminal trial the right 'to be confronted
with the witness against him' and 'to have compulsory process for obtaining witnesses in his favor.'
Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without
due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to
accomplish that it is essential that all relevant and admissible evidence be produced.

In this case we must weigh the importance of the general privilege of confidentiality of Presidential
communications in performance of the President's responsibilities against the inroads of such a
privilege on the fair administration of criminal justice. (emphasis supplied)

xxx xxx xxx

...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial
would cut deeply into the guarantee of due process of law and gravely impair the basic function of
the courts. A President's acknowledged need for confidentiality in the communications of his office
is general in nature, whereas the constitutional need for production of relevant evidence in a
criminal proceeding is specific and central to the fair adjudication of a particular criminal case in
the administration of justice. Without access to specific facts a criminal prosecution may be totally
frustrated. The President's broad interest in confidentiality of communication will not be
vitiated by disclosure of a limited number of conversations preliminarily shown to have some
bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a
criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal justice. The
generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a
pending criminal trial. (emphasis supplied)
In the case at bar, we are not confronted with a court’s need for facts in order to adjudge liability in a criminal case
but rather with the Senate’s need for information in relation to its legislative functions. This leads us to consider
once again just how critical is the subject information in the discharge of respondent Committees’ functions. The
burden to show this is on the respondent Committees, since they seek to intrude into the sphere of competence of
the President in order to gather information which, according to said respondents, would "aid" them in crafting
legislation.

Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the nature of a legislative
inquiry in aid of legislation in this wise:

The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether
the subpoenaed materials are critical to the performance of its legislative functions. There is a clear
difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution
engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its
task, legislative judgments normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast,
the responsibility of the grand jury turns entirely on its ability to determine whether there is probable
cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in
Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand
jury's need for the most precise evidence, the exact text of oral statements recorded in their original form,
is undeniable. We see no comparable need in the legislative process, at least not in the
circumstances of this case. Indeed, whatever force there might once have been in the Committee's
argument that the subpoenaed materials are necessary to its legislative judgments has been substantially
undermined by subsequent events. (Emphasis supplied)

Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or demonstratively
critical and specific need for facts which is so essential to the judicial power to adjudicate actual controversies.
Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the instant case, which
unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate Branches of the Government.

Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive and the
Legislative Branches is the recognized existence of the presumptive presidential communications privilege. This
is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states:

A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in
favor of the Presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon,
as well as the other related Nixon cases Sirica and Senate Select Committee on Presidential
Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all
recognize that there is a presumptive privilege in favor of Presidential communications. The Almonte
case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of Presidential
communications.

The presumption in favor of Presidential communications puts the burden on the respondent Senate Committees
to overturn the presumption by demonstrating their specific need for the information to be elicited by the answers
to the three (3) questions subject of this case, to enable them to craft legislation. Here, there is simply
a generalized assertion that the information is pertinent to the exercise of the power to legislate and a broad and
non-specific reference to pending Senate bills. It is not clear what matters relating to these bills could not be
determined without the said information sought by the three (3) questions. As correctly pointed out by the
Honorable Justice Dante O. Tinga in his Separate Concurring Opinion:

…If respondents are operating under the premise that the president and/or her executive officials
have committed wrongdoings that need to be corrected or prevented from recurring by remedial
legislation, the answer to those three questions will not necessarily bolster or inhibit respondents
from proceeding with such legislation. They could easily presume the worst of the president in
enacting such legislation.

For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can come
up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the Oral
Argument before this Court, the counsel for respondent Committees impliedly admitted that the Senate could still
come up with legislations even without petitioner answering the three (3) questions. In other words, the
information being elicited is not so critical after all. Thus:

CHIEF JUSTICE PUNO

So can you tell the Court how critical are these questions to the lawmaking function of the
Senate. For instance, question Number 1 whether the President followed up the NBN project.
According to the other counsel this question has already been asked, is that correct?

ATTY. AGABIN

Well, the question has been asked but it was not answered, Your Honor.

CHIEF JUSTICE PUNO

Yes. But my question is how critical is this to the lawmaking function of the Senate?

ATTY. AGABIN

I believe it is critical, Your Honor.

CHIEF JUSTICE PUNO

Why?

ATTY. AGABIN

For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to
indorse a Bill to include Executive Agreements had been used as a device to the circumventing
the Procurement Law.

CHIEF JUSTICE PUNO

But the question is just following it up.

ATTY. AGABIN

I believe that may be the initial question, Your Honor, because if we look at this problem in its
factual setting as counsel for petitioner has observed, there are intimations of a bribery scandal
involving high government officials.

CHIEF JUSTICE PUNO

Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the
lawmaking function of the Senate? Will it result to the failure of the Senate to cobble a Bill without
this question?

ATTY. AGABIN

I think it is critical to lay the factual foundations for a proposed amendment to the Procurement
Law, Your Honor, because the petitioner had already testified that he was offered a P200 Million
bribe, so if he was offered a P200 Million bribe it is possible that other government officials who
had something to do with the approval of the contract would be offered the same amount of
bribes.

CHIEF JUSTICE PUNO

 Again, that is speculative.

ATTY. AGABIN

That is why they want to continue with the investigation, Your Honor.

CHIEF JUSTICE PUNO

How about the third question, whether the President said to go ahead and approve the project
after being told about the alleged bribe. How critical is that to the lawmaking function of the
Senate? And the question is may they craft a Bill a remedial law without forcing petitioner Neri to
answer this question?

ATTY. AGABIN

Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires
that a proposed Bill should have some basis in fact.42

The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or
how the withholding of the information sought will hinder the accomplishment of their legislative purpose is very
evident in the above oral exchanges. Due to the failure of the respondent Committees to successfully discharge
this burden, the presumption in favor of confidentiality of presidential communication stands. The implication of
the said presumption, like any other, is to dispense with the burden of proof as to whether the disclosure will
significantly impair the President’s performance of her function. Needless to state this is assumed, by virtue of the
presumption.

Anent respondent Committees’ bewailing that they would have to "speculate" regarding the questions covered by
the privilege, this does not evince a compelling need for the information sought. Indeed, Senate Select Committee
on Presidential Campaign Activities v. Nixon43 held that while fact-finding by a legislative committee is undeniably
a part of its task, legislative judgments normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability than on a precise reconstruction of past events. It added that,
normally, Congress legislates on the basis of conflicting information provided in its hearings. We cannot subscribe
to the respondent Committees’ self-defeating proposition that without the answers to the three (3) questions
objected to as privileged, the distinguished members of the respondent Committees cannot intelligently craft
legislation.

Anent the function to curb graft and corruption, it must be stressed that respondent Committees’ need for
information in the exercise of this function is not as compelling as in instances when the purpose of the inquiry is
legislative in nature. This is because curbing graft and corruption is merely an oversight function of
Congress.44 And if this is the primary objective of respondent Committees in asking the three (3) questions
covered by privilege, it may even contradict their claim that their purpose is legislative in nature and not oversight.
In any event, whether or not investigating graft and corruption is a legislative or oversight function of Congress,
respondent Committees’ investigation cannot transgress bounds set by the Constitution.

In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "the political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the applicability of the principle in appropriate
cases.46 (Emphasis supplied)

There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really ‘in aid
of legislation’ because it is not related to a purpose within the jurisdiction of Congress, since the aim of the
investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had violated
Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears more within the
province of the courts rather than of the Legislature."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the
President.48While it may be a worthy endeavor to investigate the potential culpability of high government officials,
including the President, in a given government transaction, it is simply not a task for the Senate to perform. The
role of the Legislature is to make laws, not to determine anyone’s guilt of a crime or wrongdoing. Our Constitution
has not bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can the
Legislature adjudicate or prosecute.

Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for truth,"
which in respondent Committees’ view appears to be equated with the search for persons responsible for
"anomalies" in government contracts.

No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed upon
our prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal activity, the
investigation of the role played by each official, the determination of who should be haled to court for prosecution
and the task of coming up with conclusions and finding of facts regarding anomalies, especially the determination
of criminal guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency.
Moreover, it bears stressing that no inquiry is an end in itself; it must be related to, and in furtherance of, a
legitimate task of the Congress, i.e. legislation. Investigations conducted solely to gather incriminatory evidence
and "punish" those investigated are indefensible. There is no Congressional power to expose for the sake of
exposure.49 In this regard, the pronouncement in Barenblatt v. United States50 is instructive, thus:

Broad as it is, the power is not, however, without limitations. Since Congress may only investigate
into the areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are
within the exclusive province of one of the other branches of the government. Lacking the judicial power
given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary.
Neither can it supplant the Executive in what exclusively belongs to the Executive. (Emphasis supplied.)

At this juncture, it is important to stress that complaints relating to the NBN Project have already been filed
against President Arroyo and other personalities before the Office of the Ombudsman. Under our Constitution, it
is the Ombudsman who has the duty "to investigate any act or omission of any public official, employee,
office or agency when such act or omission appears to be illegal, unjust, improper, or inefficient."51 The
Office of the Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily
determine whether or not the allegations of anomaly are true and who are liable therefor. The same holds true for
our courts upon which the Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules
of procedure in the Office of the Ombudsman and the courts are well-defined and ensure that the
constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected and
safeguarded.

Should respondent Committees uncover information related to a possible crime in the course of their
investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of
government. Thus, the Legislature’s need for information in an investigation of graft and corruption cannot be
deemed compelling enough to pierce the confidentiality of information validly covered by executive privilege. As
discussed above, the Legislature can still legislate on graft and corruption even without the information covered
by the three (3) questions subject of the petition.

Corollarily, respondent Committees justify their rejection of petitioner’s claim of executive privilege on the ground
that there is no privilege when the information sought might involve a crime or illegal activity, despite the
absence of an administrative or judicial determination to that effect. Significantly, however, in Nixon v.
Sirica,52 the showing required to overcome the presumption favoring confidentiality turned, not on the nature of
the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and
appropriateness of the function in the performance of which the material was sought, and the degree to
which the material was necessary to its fulfillment.

Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon does
not apply to the case at bar because, unlike in the said case, no impeachment proceeding has been initiated at
present. The Court is not persuaded. While it is true that no impeachment proceeding has been initiated,
however, complaints relating to the NBN Project have already been filed against President Arroyo and other
personalities before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial
arms of government are the bodies equipped and mandated by the Constitution and our laws to determine
whether or not the allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and
penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential to
arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation provides that "technical rules of evidence applicable to judicial
proceedings which do not affect substantive rights need not be observed by the Committee." Court rules which
prohibit leading, hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do
not apply to a legislative inquiry. Every person, from the highest public official to the most ordinary citizen, has the
right to be presumed innocent until proven guilty in proper proceedings by a competent court or body.

IV

Respondent Committees Committed Grave

Abuse of Discretion in Issuing the Contempt Order

Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order
because (1) there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down
in Senate v. Ermita; (3) they issued the contempt order in accordance with their internal Rules; (4) they did not
violate the requirement under Article VI, Section 21 of the Constitution requiring the publication of their Rules; and
(5) their issuance of the contempt order is not arbitrary or precipitate.

We reaffirm our earlier ruling.

The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see no
reason to discuss it once again.

Respondent Committees’ second argument rests on the view that the ruling in Senate v. Ermita, requiring
invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry" along
with the "usual indication of the subject of inquiry and the questions relative to and in furtherance thereof" is not
provided for by the Constitution and is merely an obiter dictum.

On the contrary, the Court sees the rationale and necessity of compliance with these requirements.

An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses.
Consequently, claims that the investigative power of Congress has been abused (or has the potential for abuse)
have been raised many times.53 Constant exposure to congressional subpoena takes its toll on the ability of the
Executive to function effectively. The requirements set forth in Senate v. Ermita are modest mechanisms that
would not unduly limit Congress’ power. The legislative inquiry must be confined to permissible areas and thus,
prevent the "roving commissions" referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses have
their constitutional right to due process. They should be adequately informed what matters are to be covered by
the inquiry. It will also allow them to prepare the pertinent information and documents. To our mind, these
requirements concede too little political costs or burdens on the part of Congress when viewed vis-à-vis the
immensity of its power of inquiry. The logic of these requirements is well articulated in the study conducted by
William P. Marshall,55 to wit:

A second concern that might be addressed is that the current system allows committees to continually
investigate the Executive without constraint. One process solution addressing this concern is to
require each investigation be tied to a clearly stated purpose. At present, the charters of some
congressional committees are so broad that virtually any matter involving the Executive can be construed
to fall within their province. Accordingly, investigations can proceed without articulation of specific need or
purpose. A requirement for a more precise charge in order to begin an inquiry should immediately work to
limit the initial scope of the investigation and should also serve to contain the investigation once it is
instituted. Additionally, to the extent clear statements of rules cause legislatures to pause and
seriously consider the constitutional implications of proposed courses of action in other areas,
they would serve that goal in the context of congressional investigations as well.

The key to this reform is in its details. A system that allows a standing committee to simply
articulate its reasons to investigate pro forma does no more than imposes minimal drafting
burdens. Rather, the system must be designed in a manner that imposes actual burdens on the
committee to articulate its need for investigation and allows for meaningful debate about the
merits of proceeding with the investigation.(Emphasis supplied)
Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable demand that should
have been granted by respondent Committees.

Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any
pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena merely
commanded him to "testify on what he knows relative to the subject matter under inquiry."

Anent the third argument, respondent Committees contend that their Rules of Procedure Governing Inquiries in
Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is true that this Court must refrain from
reviewing the internal processes of Congress, as a co-equal branch of government, however, when a
constitutional requirement exists, the Court has the duty to look into Congress’ compliance therewith. We cannot
turn a blind eye to possible violations of the Constitution simply out of courtesy. In this regard, the pronouncement
in Arroyo v. De Venecia56 is enlightening, thus:

"Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire
into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the
absence of showing that there was a violation of a constitutional provision or the rights of private
individuals.

United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution empowers each House
to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate
fundamental rights, and there should be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought to be attained."

In the present case, the Court’s exercise of its power of judicial review is warranted because there appears to be
a clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules provides
that:

"The Committee, by a vote of majority of all its members, may punish for contempt any witness before it
who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper
questions by the Committee or any of its members." (Emphasis supplied)

In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because
during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This
number could hardly fulfill the majority requirement needed by respondent Committee on Accountability of Public
Officers and Investigations which has a membership of seventeen (17) Senators and respondent Committee on
National Defense and Security which has a membership of eighteen (18) Senators. With respect to
respondent Committee on Trade and Commerce which has a membership of nine (9) Senators, only three (3)
members were present.57 These facts prompted us to quote in the Decision the exchanges between Senators
Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the required
majority to deliberate and vote on the contempt order.

When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan
stated that any defect in the committee voting had been cured because two-thirds of the Senators effectively
signed for the Senate in plenary session.58

Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is flawed.
Instead of being submitted to a full debate by all the members of the respondent Committees, the contempt order
was prepared and thereafter presented to the other members for signing. As a result, the contempt order which
was issued on January 30, 2008 was not a faithful representation of the proceedings that took place on said date.
Records clearly show that not all of those who signed the contempt order were present during the January 30,
2008 deliberation when the matter was taken up.

Section 21, Article VI of the Constitution states that:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in
aid of legislation in accordance with its duly published rules of procedure. The rights of person
appearing in or affected by such inquiries shall be respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the witness’ settled expectation. If the
limitations are not observed, the witness’ settled expectation is shattered. Here, how could there be a majority
vote when the members in attendance are not enough to arrive at such majority? Petitioner has the right to expect
that he can be cited in contempt only through a majority vote in a proceeding in which the matter has been fully
deliberated upon. There is a greater measure of protection for the witness when the concerns and objections of
the members are fully articulated in such proceeding. We do not believe that respondent Committees have the
discretion to set aside their rules anytime they wish. This is especially true here where what is involved is the
contempt power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody else,
it is the witness who has the highest stake in the proper observance of the Rules.

Having touched the subject of the Rules, we now proceed to respondent Committees’ fourth argument.
Respondent Committees argue that the Senate does not have to publish its Rules because the same was
published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not required to
republish the Rules, unless the same is repealed or amended.

On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is no
debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national
election or change in the composition of its members. However, in the conduct of its day-to-day business the
Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules
of the Senate itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the
same status.

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but
may be taken by the succeeding Congress as if present for the first time. (emphasis supplied)

Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even legislative
investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished
matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule is
readily apparent considering that the Senate of the succeeding Congress (which will typically have a different
composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of
which they had no part. If the Senate is a continuing body even with respect to the conduct of its business, then
pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course,
continue into the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its
business is reflected in its Rules. The Rules of the Senate (i.e. the Senate’s main rules of procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall
begin their term of office, the President may endorse the Rules to the appropriate committee for
amendment or revision.

The Rules may also be amended by means of a motion which should be presented at least one day
before its consideration, and the vote of the majority of the Senators present in the session shall be
required for its approval. (emphasis supplied)

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they
are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an
election and the possibility of the amendment or revision of the Rules at the start of each session in which the
newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of
their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules.
The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of
general circulation."59 The latter does not explicitly provide for the continued effectivity of such rules until they are
amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next
Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished
business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance
with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules
for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same
shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on
notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next
Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity.

Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings conducted
pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should
be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses
as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are
considered valid and effective.

Respondent Committees’ last argument is that their issuance of the contempt order is not precipitate or arbitrary.
Taking into account the totality of circumstances, we find no merit in their argument.

As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent
Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly
manifested his willingness to attend subsequent hearings and respond to new matters. His only request was that
he be furnished a copy of the new questions in advance to enable him to adequately prepare as a resource
person. He did not attend the November 20, 2007 hearing because Executive Secretary Ermita requested
respondent Committees to dispense with his testimony on the ground of executive privilege. Note that petitioner is
an executive official under the direct control and supervision of the Chief Executive. Why punish petitioner for
contempt when he was merely directed by his superior? Besides, save for the three (3) questions, he was very
cooperative during the September 26, 2007 hearing.

On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on
Executive Secretary Ermita’s claim of executive privilege, they curtly dismissed it as unsatisfactory and ordered
the arrest of petitioner. They could have informed petitioner of their ruling and given him time to decide whether to
accede or file a motion for reconsideration. After all, he is not just an ordinary witness; he is a high- ranking official
in a co-equal branch of government. He is an alter ego of the President. The same haste and impatience marked
the issuance of the contempt order, despite the absence of the majority of the members of the respondent
Committees, and their subsequent disregard of petitioner’s motion for reconsideration alleging the pendency of
his petition for certiorari before this Court.

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

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

While this Court finds laudable the respondent Committees’ well-intentioned efforts to ferret out corruption, even
in the highest echelons of government, such lofty intentions do not validate or accord to Congress powers denied
to it by the Constitution and granted instead to the other branches of government.

There is no question that any story of government malfeasance deserves an inquiry into its veracity. As
respondent Committees contend, this is founded on the constitutional command of transparency and public
accountability. The recent clamor for a "search for truth" by the general public, the religious community and the
academe is an indication of a concerned citizenry, a nation that demands an accounting of an entrusted power.
However, the best venue for this noble undertaking is not in the political branches of government. The customary
partisanship and the absence of generally accepted rules on evidence are too great an obstacle in arriving at the
truth or achieving justice that meets the test of the constitutional guarantee of due process of law. We believe the
people deserve a more exacting "search for truth" than the process here in question, if that is its objective.

WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is hereby DENIED.

SO ORDERED.

Clinton v. Jones 1997

Petitioner: William J. Clinton, President of the United States

Respondent: Paula Corbin Jones

Petitioner's Claim: That the president of the United States during the term of his presidency is immune from a
civil lawsuit challenging his actions prior to his taking office.

Chief Lawyer for Petitioner: Robert S. Bennett

Chief Lawyer for Respondent: Gilbert K. Davis

Justices for the Court: Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, Chief
Justice William H. Rehnquist, Antonin Scalia, David H. Souter, John Paul Stevens, Clarence Thomas

Justices Dissenting: None

Date of Decision: May 27, 1997

Decision: Ruled in favor of Jones by finding that the president does not have immunity from civil lawsuits
relating to personal conduct not part of his official duties.

Significance: The ruling asserted that although a president can not be sued for actions related to his official
duties, the president is subject to the same laws regulating purely private behavior as the general population.

On May 8, 1991, twenty-four year old Paula Corbin Jones, a state clerical employee, was working at the
registration desk for a conference given by Arkansas Industrial Development Commission at the Excelsior Hotel
in Little Rock. About 2:30 pm Bill Clinton, then Governor of Arkansas passed by the desk while attending the
conference to make a speech. Shortly afterward, State Trooper Danny Ferguson approached Jones and
persuaded her to go upstairs to visit the governor. Jones followed Trooper Ferguson into the hotel elevator
which took them to a business suite where Clinton was waiting. Once inside the suite, Jones would later claim
Clinton made crude sexual advances, which she rejected and promptly left the room. Jones would also charge
that her rejection of those advances led to punishment by her supervisor in the state job she held by changing
her job duties. She also claimed the state police officer had later defamed (damaged) her reputation by stating
that she had accepted Clinton's advances.
A Civil Lawsuit

Report Advertisement

Bill Clinton (1993–) was elected president of the United States in 1992. In May of 1994 Jones filed a civil lawsuit
in the U.S. District Court for the Eastern District of Arkansas against Clinton alleging (charging) all of the above
activities took place. A civil lawsuit is brought to enforce, make amends for violations, or protect rights of private
individuals. It is not a criminal proceeding. Among her charges, Jones claimed her civil rights had been violated
and asked for damages of $175,000.

Jones had waited until two days before the three year period of limitations would have expired ending the time
period in which a lawsuit could be filed. Jones gave such reasons for not filing earlier as she was afraid of losing
her job, the governor was in charge of the state so who could she trust, and now Clinton was the most powerful
man in the country.

Clinton's attorneys immediately filed a motion to dismiss the charges based on presidential immunity.
Presidential immunity shields the president from court interference as he carries out his executive duties and
from any civil lawsuits brought against him for actions taken in performance of duties.

No Temporary Immunity

U.S. District Court Judge Susan Webber Wright denied the dismissal on immunity grounds but ordered the trial
be postponed until after Clinton's presidency. Both parties appealed the decision to the U.S. Court of Appeals for
the Eighth Circuit. The court of appeals affirmed (agreed with) Wright's decision that Clinton did not have
immunity from the lawsuit but disagreed with the postponement. Post-poning any trial until the end of Clinton's
presidency, Judge Bowman of the Eighth Circuit said, was a "temporary immunity." Finding no reason to grant
this to Clinton, Bowman stated, "The President, like all other government officials, is subject to the same laws
that apply, to all other members of our society." Judge Bowman could find no "case in which any public official
ever has been granted any immunity from suit for his unofficial [not related to his governmental duties] acts."
Judge Bowman pointed out that the issue at hand involved "only personal, private conduct by a President."
Clinton then appealed to the U.S. Supreme Court which agreed to hear the case.

CAN THE PRESIDENT BE SUED WHILE IN OFFICE?

T he administration of President Bill Clinton, with its many attendant scandals, raised a number of issues
concerning the presidency, ethics, and the law. Among these issues was the question, "Should civil suits against
the president be stalled until he is out of office?" Given Clinton's enormous popularity, it is likely that the
majority of Americans would have said "yes."

To look specifically at Clinton, Jones, or the suit, however, is to miss the point. In answering the question
regarding presidents and civil suits, Americans should evaluate it without regard to personalities. Then they
would be left with two issues: on the one hand, there was the fact that the president should not be above the
law; on the other hand, responding to personal lawsuits brought against him would distract him from the
important business of being president.

Court Rejects Clinton's Claims

On May 27, 1997, only months after Clinton's reelection as president, a unanimous Court affirmed the decision
of the appeals court agreeing with Judge Bowman's reasoning. The Court rejected both of President Clinton's
principle arguments, one involving presidential immunity and the other based on the doctrine of separation of
powers.

No Immunity
In Clinton's first argument, he claimed "that [in] all but the most exceptional cases, the Constitution affords
[allows] the President temporary immunity from civil . . . litigation [lawsuits] arising . . . even out of actions that
happened before he took office." Clinton based this argument on a Supreme Court's earlier decision in Nixon v.
Fitzgerald (1982). In Nixon the Court held that a president is entitled to absolute (without any restrictions)
immunity from any civil lawsuit that challenges his official actions. In other words, the president cannot be sued
for conduct which relates to his duties as president. This reasoning allows presidents to carry out their
designated functions effectively without fear a particular action or decision will lead to a personal lawsuit. John
Paul Stevens, writing for the Court, completely denied Clinton's claim of immunity saying Nixon could not be
applied in this case. "This reasoning [in Nixon] provides no support for an immunity for unofficial conduct."
Clinton's actions certainly were unofficial, not remotely involved with his presidential duties. Furthermore, the
Court found no basis of precedent (previous decisions) to allow any immunity toward actions occurring before a
president had taken office.

No Separation of Powers Conflict

President Clinton based his second argument on the separation of powers principle. The principle guides the
division of power among the three branches of government, executive (the president), legislative (Congress),
and judicial (courts). One branch may not unduly interfere with another branch. Stevens wrote, Clinton
"contends that he occupies a unique office with powers and responsibilities so vast and important that the
public interest demands that he devote his undivided time and attention to his public duties." Clinton continued
that the separation of powers places limits on the judiciary not allowing it to burden the presidency with any
action such as this lawsuit that would divert the president's energy and attention away from his executive
duties. Clinton did not make any claim of being "above the law," he merely argued for a postponement of the
court proceeding until completion of his presidency. Although the Court accepted that the presidency is
uniquely important, it found that the "separation-of-power doctrine does not require federal courts to stay
[postpone] all private actions against the President until he leaves office." Stevens wrote that this case and any
further legal action it might cause would not "place unacceptable burdens on the President that will hamper the
performance of his official duties." The Court sent Jones' case back to district court for trial.

An Important Reminder

The Supreme Court refused to allow a sitting president to avoid a civil lawsuit just because he is president.
Instead, the president may claim immunity only where the questioned actions relate to official acts and duties of
the presidency. The Court's decision was an important reminder that no person in a democratic nation, including
the president, is above the law.

With the case back in district court, Jones' attorneys began the process of gathering information for their case.
Wright agreed that any information bearing on Clinton's sexual relationships with other state or federal
employees while governor and president was relevant. In January of 1998 Clinton gave testimony, the first
president to ever do so as part of a trial while in office. On April 1, 1998, in a surprise move to both parties Judge
Wright dismissed the Jones lawsuit by finding

PRESIDENT HELD IN CONTEMPT

"I did not have sexual relations with that woman, Miss Lewinsky," Clinton publicly proclaimed while giving
formal testimony to federal district court in the Paula Jones sexual assault lawsuit. Giving testimony under oath
in the Paula C. Jones sexual assault case in January of 1998, Clinton declared he had no past sexual relations
with White House intern Monica S. Lewinsky.

Later, Clinton changed his story while giving testimony during a grand jury appearance in August of 1998. He
admitted to "inappropriate intimate contact" with Lewinsky and misleading the public with his earlier
statements. Clinton later faced an impeachment trial over the Lewinsky scandal before the U.S. Senate
with Chief Justice William H. Rehnquist presiding. The trial ended with acquittal in February of 1999. With
thoughts that his legal troubles might be over, U.S. District Court Judge Susan Webber Wright found Clinton in
contempt of court on April 12, 1999 for intentionally giving false testimony about his relationship with Lewinsky
during his January of 1998 testimony. Wright stated that the "record demonstrates by clear and convincing
evidence that the president [gave] false, misleading and evasive answers that were designed to obstruct the
judicial process." Wright concluded that Clinton had "undermined the integrity of the judicial system." Though
no president had ever been found in contempt of court before, Wright found no constitutional restriction from
doing so. She wrote, "the power to determine the legality of the President's unofficial conduct includes with it
the power to issue civil contempt citations . . . for his unofficial conduct which abuses the federal [court]
process." As the last chapter of the Jones case, in April of 1999 President Bill Clinton became the first sitting
president to be found in contempt of court.

That Jones did not provide sufficient proof of emotional injury or discrimination at work. Jones prepared to
appeal the decision, but negotiations began for a settlement. Finally, in November of 1998 Clinton agreed to pay
Jones $850,000. Though Jones had originally demanded that Clinton issue an apology or admit guilt, Clinton did
neither. The president sent a check for the amount in January of 1999.

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.,
Nixon v. 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.

G.R. No. 203372 June 16, 2015

ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner,
vs.
OFFICE OF THE PRESIDENT and HON. SOLICITOR GENERAL JOSE ANSELMO I.
CADIZ, Respondents.

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

G.R. No. 206290

ATTY. DINDO G. VENTURANZA, Petitioner,

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

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

G.R. No. 209138

IRMA A. VILLANUEVA and FRANCISCA B. ROSQUITA, Petitioners,

vs.
COURT OF APPEALS and THE OFFICE OF THE PRESIDENT, Respondents.

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

G.R. No. 212030

EDDIE U. TAMONDONG, Petitioner,

vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent.

DECISION

CARPIO, J.:

The present consolidated cases involve four petitions: G.R. No. 203372 with Atty. Cheloy E. Velicaria-Garafil
(Atty. Velicaria-Garafil), who was appointed State Solicitor II at the Office of the Solicitor General (OSG), as
petitioner; G.R. No. 206290 with Atty. Dindo G. Venturanza (Atty. Venturanza), who was appointed
Prosecutor IV (City Prosecutor) of Quezon City, as petitioner; G.R. No. 209138 with Irma A. Villanueva
(Villanueva), who was appointed Administrator for Visayas of the Board of Administrators of the Cooperative
Development Authority (CDA), and Francisca B. Rosquita (Rosquita), who was appointed Commissioner of
the National Commission of Indigenous Peoples (NCIP), as petitioners; and G.R. No. 212030 with Atty.
Eddie U. Tamondong (Atty. Tamondong), who was appointed member of the Board of Directors of the Subic
Bay Metropolitan Authority (SBMA), as petitioner. All petitions question the constitutionality of Executive
Order No. 2 (EO 2) for being inconsistent with Section 15, Article VII of the 1987 Constitution.

Petitioners seek the :reversal of the separate Decisions of the Court of Appeals (CA) that dismissed their
petitions and upheld the constitutionality of EO 2. G.R. No. 203372 filed by Atty. Velicaria-Garafil is a
Petition for Review on Certiorari,1 assailing the Decision2 dated 31 August 2012 of the CA in CA-G.R. SP No.
123662. G.R. No. 206290 filed by Atty. Venturanza is a Petition for Review on Certiorari,3 assailing the
Decision4 dated 31 August 2012 and Resolution5 dated 12 March 2013 of the CA in CA-G.R. SP No. 123659.
G.R. No. 209138 filed by Villanueva and Rosquita is a Petition for Certiorari,6 seeking to nullify the
Decision7 dated 28 August 2013 of the CA in CA-G.R. SP Nos. 123662, 123663, and 123664.8 Villanueva
and Rosquita filed a Petition-in-Intervention in the consolidated cases before the CA. G.R. No. 212030 is a
Petition for Review on Certiorari,9 assailing the Decision10 dated 31 August 2012 of the CA in CAG.R. SP No.
123664 and Resolution11 dated 7 April 2014 of the CA in CAG.R. SP Nos. 123662, 123663, and 123664.12
 Facts of the Cases

Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-Arroyo (President
Macapagal-Arroyo) issued more than 800 appointments to various positions in several government offices.

The ban on midnight appointments in Section 15, Article VII of the 1987 Constitution reads:

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

Thus, for purposes of the 2010 elections, 10 March 2010 was the cutoff date for valid appointments and the
next day, 11 March 2010, was the start of the ban on midnight appointments. Section 15, Article VII of the
1987 Constitution recognizes as an exception to the ban on midnight appointments only "temporary
appointments to executive positions when continued vacancies therein will prejudice public service or
endanger public safety." None of the petitioners claim that their appointments fall under this exception.

Appointments

G.R. No. 203372

The paper evidencing Atty. Velicaria-Garafil's appointment as State Solicitor II at the OSG was dated 5
March 2010.13 There was a transmittal letter dated 8 March 2010 of the appointment paper from the Office of
the President (OP), but this transmittal letter was received by the Malacañang 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 Malacañang of his promotion but without an official copy of his
appointment paper, secured clearances from the Civil Service Commission (CSC),16 Sandiganbayan,17 and
the DOJ.18 Atty. Venturanza took his oath of office on 15 March 2010, and assumed office on the same day.

G.R. No. 209138

The paper evidencing Villanueva's appointment as Administrator for Visayas of the Board of Administrators
of the CDA was dated 3 March 2010.19 There was no transmittal letter of the appointment paper from the OP.
Villanueva took her oath of office on 13 April 2010.

The paper evidencing Rosquita's appointment as Commissioner, representing Region I and the Cordilleras,
of the NCIP was dated 5 March 2010.20 Like Villanueva, there was no transmittal letter of the appointment
paper from the OP. Rosquita took her oath of office on 18 March 2010. G.R. No. 212030

The paper evidencing Atty. Tamondong's appointment as member, representing the private sector, of the
SBMA Board of Directors was dated 1 March 2010.21 Atty. Tamondong admitted that the appointment paper
was received by the Office of the SBMA Chair on 25 March 201022 and that he took his oath of office on the
same day.23 He took another oath of office on 6 July 2010 as "an act of extra caution because of the rising
crescendo of noise from the new political mandarins against the so-called 'midnight appointments."'24

To summarize, the pertinent dates for each petitioner are as follows:

 G.R. No. Date of Date of Date of Date of Assumption of
Appointment Transmittal Receipt by Oath of Office
Letter Letter MRO Office
203372
13 May 22 March
(Atty. Velicaria- 5 March 2010 8 March 2010 6 April 2010
2010 2010
Garafil)
206290
23 February 12 March 15 March 15 March
(Atty. 9 March 2010
2010 2010 2010 2010
Venturanza)
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 Carlos P. Garcia submitted
1âwphi1

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 Malacañang
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 Malacañan 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 Malacañang. 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
Malacañan 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 Malacañang 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.

G.R. Nos. 184461-62 May 31, 2011

LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO AND LT. FRANCIS MIRABELLE
SAMSON, Petitioners,
vs.
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Respondents.

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

G.R. No. 184495

ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Petitioners,

vs.
GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO RAZON, (RET.) GEN. ROMEO TOLENTINO,
(RET.) GEN. JOVITO PALPARAN, LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO, ET
AL., Respondents.

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

G.R. No. 187109

ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Petitioners,

vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO RAZON,
(RET.) GEN. ROMEO TOLENTINO, (RET.) GEN. JOVITO PALPARAN, LT. COL. ROGELIO BOAC, LT.
COL. FELIPE ANOTADO, DONALD CAIGAS, A.K.A. ALAN OR ALVIN, ARNEL ENRIQUEZ AND LT.
FRANCIS MIRABELLE SAMSON, Respondents.

DECISION

CARPIO MORALES, J.:

At 2:00 a.m. of June 26, 2006, armed men abducted Sherlyn Cadapan (Sherlyn), Karen Empeño (Karen)
and Manuel Merino (Merino) from a house in San Miguel, Hagonoy, Bulacan. The three were herded onto a
jeep bearing license plate RTF 597 that sped towards an undisclosed location.

Having thereafter heard nothing from Sherlyn, Karen and Merino, their respective families scoured nearby
police precincts and military camps in the hope of finding them but the same yielded nothing.

On July 17, 2006, spouses Asher and Erlinda Cadapan and Concepcion Empeño filed a petition for habeas
corpus1before the Court, docketed as G.R. No. 173228, impleading then Generals Romeo Tolentino and
Jovito Palparan (Gen. Palparan), Lt. Col. Rogelio Boac (Lt. Col. Boac), Arnel Enriquez and Lt. Francis
Mirabelle Samson (Lt. Mirabelle) as respondents. By Resolution of July 19, 2006,2 the Court issued a writ of
habeas corpus, returnable to the Presiding Justice of the Court of Appeals.

The habeas corpus petition was docketed at the appellate court as CA-G.R. SP No. 95303.

By Return of the Writ dated July 21, 2006,3 the respondents in the habeas corpus petition denied that
Sherlyn, Karen and Merino are in the custody of the military. To the Return were attached affidavits from the
respondents, except Enriquez, who all attested that they do not know Sherlyn, Karen and Merino; that they
had inquired from their subordinates about the reported abduction and disappearance of the three but their
inquiry yielded nothing; and that the military does not own nor possess a stainless steel jeep with plate
number RTF 597. Also appended to the Return was a certification from the Land Transportation Office
(LTO) that plate number RTF 597 had not yet been manufactured as of July 26, 2006.

Trial thereupon ensued at the appellate court.

Witness Wilfredo Ramos, owner of the house where the three were abducted, recounted that on June 26,
2006, while he was inside his house in Hagonoy, he witnessed armed men wearing bonnets abduct Sherlyn
and Karen from his house and also abduct Merino on their way out; and that tied and blindfolded, the three
were boarded on a jeep and taken towards Iba in Hagonoy.4

Witness Alberto Ramirez (Ramirez) recalled that on June 28, 2006, while he was sleeping in his house, he
was awakened by Merino who, in the company of a group of unidentified armed men, repaired to his house;
that onboard a stainless jeep bearing plate number RTF 597, he (Ramirez) was taken to a place in Mercado,
Hagonoy and was asked by one Enriquez if he knew "Sierra," "Tanya," "Vincent" and "Lisa"; and that
Enriquez described the appearance of two ladies which matched those of Sherlyn and Karen, whom he was
familiar with as the two had previously slept in his house.5

Another witness, Oscar Leuterio, who was himself previously abducted by armed men and detained for five
months, testified that when he was detained in Fort Magsaysay in Nueva Ecija, he saw two women fitting the
descriptions of Sherlyn and Karen, and also saw Merino, his kumpare.6

Lt. Col. Boac, the then commander of Task Force Malolos, a special operations team tasked to neutralize
the intelligence network of communists and other armed groups, declared that he conducted an inquiry on
the abduction of Sherlyn, Karen and Merino but his subordinates denied knowledge thereof.7

While he denied having received any order from Gen. Palparan to investigate the disappearance of Sherlyn,
Karen and Merino, his assistance in locating the missing persons was sought by the mayor of Hagonoy.

Major Dominador Dingle, the then division adjutant of the Philippine Army’s 7th Infantry Division in Fort
Magsaysay, denied that a certain Arnel Enriquez is a member of his infantry as in fact his name did not
appear in the roster of troops.8

Roberto Se, a supervisor of the Equipment, Plate Number and Supply Units of the LTO, denied that his
office manufactured and issued a plate number bearing number RTF 597.9

On rebuttal, Lt. Mirabelle, Lt. Col. Boac and Gen. Palparan took the witness stand as hostile witnesses.

Lt. Mirabelle testified that she did not receive any report on the abduction of Sherlyn, Karen and Merino nor
any order to investigate the matter. And she denied knowing anything about the abduction of Ramirez nor
who were Ka Tanya or Ka Lisa.10

Gen. Palparan testified that during a debate in a televised program, he mentioned the names of Ka Lisa and
Ka Tanya as the ones involved in revolutionary tax activities; and that he ordered Lt. Col. Boac to conduct
an investigation on the disappearance of Sherlyn, Karen and Merino.11 When pressed to elaborate, he
stated: "I said that I got the report that it stated that it was Ka Tanya and Ka Lisa that, I mean, that incident
happened in Hagonoy, Bulacan was the abduction of Ka Lisa and Ka Tanya, Your Honor, and another one.
That was the report coming from the people in the area."12

By Decision of March 29, 2007,13 the Court of Appeals dismissed the habeas corpus petition in this wise:

As Sherlyn Cadapan, Karen Empeño and Manuel Merino are indeed missing, the present petition for habeas
corpus is not the appropriate remedy since the main office or function of the habeas corpus is to inquire into
the legality of one’s detention which presupposes that respondents have actual custody of the persons
subject of the petition. The reason therefor is that the courts have limited powers, means and resources to
conduct an investigation. x x x.
It being the situation, the proper remedy is not a habeas corpus proceeding but criminal proceedings by
initiating criminal suit for abduction or kidnapping as a crime punishable by law. In the case of Martinez v.
Mendoza, supra, the Supreme Court restated the doctrine that habeas corpus may not be used as a means
of obtaining evidence on the whereabouts of a person, or as a means of finding out who has specifically
abducted or caused the disappearance of a certain person. (emphasis and underscoring supplied)

Thus the appellate court disposed:

WHEREFORE, the petition for habeas corpus is hereby DISMISSED, there being no strong evidence that
the missing persons are in the custody of the respondents.

The Court, however, further resolves to refer the case to the Commission on Human Rights, the National
Bureau of Investigation and the Philippine National Police for separate investigations and appropriate
actions as may be warranted by their findings and to furnish the Court with their separate reports on the
outcome of their investigations and the actions taken thereon.

Let copies of this decision be furnished the Commission on Human Rights, the National Bureau of
Investigation and the Philippine National Police for their appropriate actions.

SO ORDERED. (emphasis and underscoring supplied)

Petitioners in CA-G.R. SP No. 95303 moved for a reconsideration of the appellate court’s decision. They
also moved to present newly discovered evidence consisting of the testimonies of Adoracion Paulino,
Sherlyn’s mother-in-law who was allegedly threatened by soldiers; and Raymond Manalo who allegedly met
Sherlyn, Karen and Merino in the course of his detention at a military camp.

During the pendency of the motion for reconsideration in CA-G.R. SP No. 95303, Erlinda Cadapan and
Concepcion Empeño filed before this Court a Petition for Writ of Amparo14 With Prayers for Inspection of
Place and Production of Documents dated October 24, 2007, docketed as G.R. No. 179994. The petition
impleaded the same respondents in the habeas corpus petition, with the addition of then President Gloria
Macapagal-Arroyo, then Armed Forces of the Phil. (AFP) Chief of Staff Hermogenes Esperon Jr., then Phil.
National Police (PNP) Chief Gen. Avelino Razon (Gen. Razon), Lt. Col. Felipe Anotado (Lt. Col. Anotado)
and Donald Caigas.

Then President Arroyo was eventually dropped as respondent in light of her immunity from suit while in
office.

Petitioners in G.R. No. 179994 also prayed that they be allowed to inspect the detention areas of the
following places:

1. 7th Infantry Division at Fort Magsaysay, Laur, Nueva Ecija

2. 24th Infantry Batallion at Limay, Bataan

3. Army Detachment inside Valmocina Farm, Pinaod, San Ildefonso, Bulacan

4. Camp Tecson, San Miguel, Bulacan

5. The Resthouse of Donald Caigas alias Allan or Alvin of the 24th Infantry Batallion at Barangay
Banog, Bolinao, Pangasinan

6. 56th Infantry Batallion Headquarters at Iba, Hagonoy, Bulacan

7. Army Detachment at Barangay Mercado, Hagonoy, Bulacan

 8. Beach House [at] Iba, Zambales used as a safehouse with a retired military personnel as a
caretaker;

By Resolution of October 25, 2007, the Court issued in G.R. No. 179994 a writ of amparo returnable to the
Special Former Eleventh Division of the appellate court, and ordered the consolidation of the amparo
petition with the pending habeas corpus petition.

Docketed as CA-G.R. SP No. 002, respondents in the amparo case, through the Solicitor General, filed their
Return of the Writ on November 6, 2007.15 In the Return, Gen. Palparan, Lt. Col. Boac and Lt. Mirabelle
reiterated their earlier narrations in the habeas corpus case.

Gen. Hermogenes Esperon Jr. stated in the Return that he immediately caused to investigate and verify the
identities of the missing persons and was aware of the earlier decision of the appellate court ordering the
police, the Commission on Human Rights and the National Bureau of Investigation to take further action on
the matter.16

Lt. Col. Felipe Anotado, the then battalion commander of the 24th Infantry Battalion based in Balanga City,
Bataan, denied any involvement in the abduction. While the 24th Infantry Battalion detachment was reported
to be a detention site of the missing persons, Lt. Col. Anotado claimed that he found no untoward incident
when he visited said detachment. He also claimed that there was no report of the death of Merino per his
inquiry with the local police.17

Police Director General Avelino Razon narrated that he ordered the compilation of pertinent records, papers
and other documents of the PNP on the abduction of the three, and that the police exhausted all possible
actions available under the circumstances.18

In addition to the witnesses already presented in the habeas corpus case, petitioners called on Adoracion
Paulino and Raymond Manalo to testify during the trial.

Adoracion Paulino recalled that her daughter-in-law Sherlyn showed up at home on April 11, 2007,
accompanied by two men and three women whom she believed were soldiers. She averred that she did not
report the incident to the police nor inform Sherlyn’s mother about the visit.19

Raymond Manalo (Manalo) claimed that he met the three abducted persons when he was illegally detained
by military men in Camp Tecson in San Miguel, Bulacan. His group was later taken to a camp in Limay,
Bataan. He recalled that Lt. Col. Anotado was the one who interrogated him while in detention.20

In his Sinumpaang Salaysay,21 Manalo recounted:

xxxx

59. Saan ka dinala mula sa Sapang?

Pagkalipas ng humigit kumulang 3 buwan sa Sapang, dinala ako sa Camp Tecson sa ilalim ng 24th IB.

xxxx

Sa loob ng barracks ko nakilala si Sherlyn Cadapan, isang estudyante ng UP.

Ipinapalinis din sa akin ang loob ng barracks. Sa isang kwarto sa loob ng barracks, may nakita akong babae
na nakakadena[.] Noong una, pinagbawalan akong makipag-usap sa kanya. Sa ikatlo o ikaapat na araw,
nakausap ko yung babaeng nagngangalang Sherlyn. Binigyan ko siya ng pagkain. Sinabi niya sa akin na
dinukot si[ya] sa Hagonoy, Bulacan at matindi ang tortyur na dinaranas niya. Sabi niya gusto niyang umuwi
at makasama ang kanyang magulang. Umiiyak siya. Sabi niya sa akin ang buong pangalan niya ay Sherlyn
Cadapan, mula sa Laguna. Sa araw tinatanggal ang kanyang kadena at inuutusan si Sherlyn na maglaba.

x x x x.
61. Sino ang mga nakilala mo sa Camp Tecson?

Dito sa Camp Tecson naming nakilala si ‘Allan Alvin’ (maya-maya nalaman naming na siya pala si Donald
Caigas), ng 24th IB, na tinatawag na ‘master’ o ‘commander’ ng kanyang mga tauhan.

Pagkalipas ng 2 araw matapos dalhin si Reynaldo sa Camp Tecson dumating sina Karen
Empeño at Manuel Merinona mga bihag din. Inilagay si Karen at Manuel sa kwarto ni ‘Allan[.]’ Kami naman
ni Reynaldo ay nasa katabing kwarto, kasama si Sherlyn.

xxxx

62. x x x x

Kaming mga lalake (ako, si Reynaldo at si Manuel) ay ginawang utusan, habang sina Sherlyn at Karen ay
ginawang labandera.

Si Sherlyn ang pinahirapan nina Mickey, Donald at Billy. Sabi ni Sherlyn sa akin na siya’y ginahasa.

xxxx

63. x x x x

xxxx

Kaming lima (ako, si Reynaldo, si Sherlyn, si Karen at si [Merino]) ang dinala sa Limay. Sinakay ako, si
Reynaldo, si Sherlyn at si [Merino] sa isang stainless na jeep. Si Karen ay isinakay sa itim na sasakyan ni
Donald Caigas. x x x x

xxxx

66. Saan pa kayo dinala mula sa Limay, Bataan?

Mula sa Limay, kaming 5 (ako, si Reynaldo, si Sherlyn, Si Karen at si Manuel) ay dinala sa isang safehouse
sa Zambales, tabi ng dagat. x x x x (underscoring supplied; italics and emphasis in the original)

On rebuttal, Lt. Col. Anotado and Col. Eduardo Boyles Davalan were called to the witness stand.

Lt. Col. Anotado denied seeing or meeting Manalo. He posited that Manalo recognized him because he was
very active in conducting lectures in Bataan and even appeared on television regarding an incident involving
the 24th Infantry Batallion. He contended that it was impossible for Manalo, Sherlyn, Karen and Merino to be
detained in the Limay detachment which had no detention area.

Col. Eduardo Boyles Davalan, the then chief of staff of the First Scout Ranger Regiment in Camp Tecson,
testified that the camp is not a detention facility, nor does it conduct military operations as it only serves as a
training facility for scout rangers. He averred that his regiment does not have any command relation with
either the 7th Infantry Division or the 24th Infantry Battalion.22

By Decision of September 17, 2008,23 the appellate court granted the Motion for Reconsideration in CA-G.R.
SP No. 95303 (the habeas corpus case) and ordered the immediate release of Sherlyn, Karen and Merino in
CA-G.R. SP No. 00002 (the amparo case). Thus it disposed:

WHEREFORE, in CA-G.R. SP NO. 95303 (Habeas Corpus case), the Motion for Reconsideration is
GRANTED.
Accordingly, in both CA-G.R. SP NO. 95303 (Habeas Corpus case) and in CA-G.R. SP NO. 00002 (Amparo
case), the respondents are thereby ordered to immediately RELEASE, or cause the release, from detention
the persons of Sher[lyn] Cadapan, Karen Empeño and Manuel Merino.

Respondent Director General Avelino Razon is hereby ordered to resume [the] PNP’s unfinished
investigation so that the truth will be fully ascertained and appropriate charges filed against those truly
responsible.

SO ORDERED.

In reconsidering its earlier Decision in the habeas corpus case, the appellate court relied heavily on the
testimony of Manalo in this wise:

With the additional testimony of Raymond Manalo, the petitioners have been able to convincingly prove the
fact of their detention by some elements in the military. His testimony is a first hand account that military and
civilian personnel under the 7th Infantry Division were responsible for the abduction of Sherlyn Cadapan,
Karen Empeño and Manuel Merino. He also confirmed the claim of Oscar Leuterio that the latter was
detained in Fort Magsaysay. It was there where he (Leuterio) saw Manuel Merino.

His testimony that Leuterio saw Manuel Merino in Fort Magsaysay may be hearsay but not with respect to
his meeting with, and talking to, the three desaparecidos. His testimony on those points was no hearsay.
Raymond Manalo saw the three with his very own eyes as they were detained and tortured together. In fact,
he claimed to be a witness to the burning of Manuel Merino. In the absence of confirmatory proof, however,
the Court will presume that he is still alive.

The testimony of Raymond Manalo can no longer be ignored and brushed aside. His narration and those of
the earlier witnesses, taken together, constitute more than substantial evidence warranting an order that the
three be released from detention if they are not being held for a lawful cause. They may be moved from
place to place but still they are considered under detention and custody of the respondents.

His testimony was clear, consistent and convincing. x x x.

xxxx

The additional testimonies of Lt. Col. Felipe Anotado and Col. Eduardo Boyles Davalan were of no help
either. Again, their averments were the same negative ones which cannot prevail over those of Raymond
Manalo. Indeed, Camp Tecson has been utilized as a training camp for army scout rangers. Even Raymond
Manalo noticed it but the camp’s use for purposes other than training cannot be discounted.

xxxx

In view of the foregoing, there is now a clear and credible evidence that the three missing persons, [Sherlyn,
Karen and Merino], are being detained in military camps and bases under the 7th Infantry Division. Being
not held for a lawful cause, they should be immediately released from detention. (italic in the original;
emphasis and underscoring supplied)

Meanwhile, in the amparo case, the appellate court deemed it a superfluity to issue any inspection order or
production order in light of the release order. As it earlier ruled in the habeas corpus case, it found that the
three detainees’ right to life, liberty and security was being violated, hence, the need to immediately release
them, or cause their release. The appellate court went on to direct the PNP to proceed further with its
investigation since there were enough leads as indicated in the records to ascertain the truth and file the
appropriate charges against those responsible for the abduction and detention of the three.

Lt. Col. Rogelio Boac, et al. challenged before this Court, via petition for review, the September 17, 2008
Decision of the appellate court. This was docketed as G.R. Nos. 184461-62, the first above-captioned case-
subject of the present Decision.
Erlinda Cadapan and Concepcion Empeño, on the other hand, filed their own petition for review also
challenging the same September 17, 2008 Decision of the appellate court only insofar as the amparo aspect
is concerned. Their petition, docketed as G.R. No. 179994, was redocketed as G.R. No. 184495, the second
above-captioned case.

By Resolution of June 15, 2010, the Court ordered the consolidation of G.R. No. 184495 with G.R. Nos.
1844461-62.24

Meanwhile, Erlinda Cadapan and Concepcion Empeño filed before the appellate court a Motion to Cite
Respondents in Contempt of Court for failure of the respondents in the amparo and habeas corpus cases to
comply with the directive of the appellate court to immediately release the three missing persons. By
Resolution of March 5, 2009,25 the appellate court denied the motion, ratiocinating thus:

While the Court, in the dispositive portion, ordered the respondents "to immediately RELEASE, or cause the
release, from detention the persons of Sherlyn Cadapan, Karen Empeño and Manuel Merino," the decision
is not ipso facto executory. The use of the term "immediately" does not mean that that it is automatically
executory. There is nothing in the Rule on the Writ of Amparo which states that a decision rendered is
immediately executory. x x x.

Neither did the decision become final and executory considering that both parties questioned the
Decision/Resolution before the Supreme Court. x x x.

Besides, the Court has no basis. The petitioners did not file a motion for execution pending appeal under
Section 2 of Rule 39. There being no motion, the Court could not have issued, and did not issue, a writ of
execution. x x x. (underscoring supplied)

Via a petition for certiorari filed on March 30, 2009 before this Court, Erlinda Cadapan and Concepcion
Empeño challenged the appellate court’s March 5, 2009 Resolution denying their motion to cite respondents
in contempt. The petition was docketed as G.R. No. 187109, the last above-captioned case subject of the
present Decision.

Only Lt. Col. Anotado and Lt. Mirabelle remained of the original respondents in the amparo and habeas
corpus cases as the other respondents had retired from government service.26 The AFP has denied that
Arnel Enriquez was a member of the Philippine Army.27 The whereabouts of Donald Caigas remain
unknown.28

In G.R. Nos. 184461-62, petitioners posit as follows:

…THE COURT OF APPEALS GROSSLY MISAPPRECIATED THE VALUE OF THE TESTIMONY

OF RAYMOND MANALO.

II

THE PETITION[S] FOR HABEAS CORPUS AND WRIT OF AMPARO SHOULD BE DISMISSED
BECAUSE RESPONDENTS FAILED TO PROVE BY THE REQUIRED QUANTUM OF EVIDENCE
THAT PETITIONERS HAVE SHERLYN CADAPAN, KAREN EMPEñO AND MANUEL MERINO ARE
IN THEIR CUSTODY.

III

PETITIONERS’ DENIALS PER SE SHOULD NOT HAVE BEEN TAKEN AGAINST THEM
BECAUSE THEY DID NOT REALLY HAVE ANY INVOLVEMENT IN THE ALLEGED ABDUCTION;
MOREOVER, THE SUPPOSED INCONSISTENCIES IN THEIR TESTIMONIES ARE ON POINTS
IRRELEVANT TO THE PETITION.
 IV

THE DISPOSITIVE PORTION OF THE ASSAILED DECISION IS VAGUE AND INCONGRUENT

WITH THE FINDINGS OF THE COURT OF APPEALS.

THE COURT OF APPEALS IGNORED AND FAILED TO RULE UPON THE FATAL PROCEDURAL
INFIRMITIES IN THE PETITION FOR WRIT OF AMPARO.29

In G.R. No. 184495, petitioners posit as follows:

5. The Court of Appeals erred in not granting the Interim Relief for Inspection of Places;

6. The Court of Appeals erred in not granting the Interim Relief for Production of Documents;

7. The Court of Appeals erred in not finding that the Police Director Gen. Avelino Razon did not
make extraordinary diligence in investigating the enforced disappearance of the aggrieved parties…

8. The Court of Appeals erred in not finding that this was not the command coming from the highest
echelon of powers of the Armed Forces of the Philippines, Philippine Army and the Seventh Infantry
Division of the Philippine Army to enforcibly disappear [sic] the aggrieved parties…

9. The Court of Appeals erred in dropping President Gloria Macapagal Arroyo as party respondent in
this case;

10. The Court of Appeals erred in not finding that President Gloria Macapagal Arroyo had command
responsibility in the enforced disappearance and continued detention of the three aggrieved
parties…

11. The Court of Appeals erred in not finding that the Armed Forces Chief of Staff then Hermogenes
Esperon and the Present Chief of Staff as having command responsibility in the enforced
disappearance and continued detention of the three aggrieved parties…30

In G.R. No. 187109, petitioners raise the following issues:

[1] Whether… the decision in the Court of Appeals has become final and executory[.]

[2] Whether…there is a need to file a motion for execution in a Habeas Corpus decision or in an
Amparo decision[.]

[3] Whether…an appeal can stay the decision of a Habeas Corpus [case] [or] an Amparo case[.]31

Essentially, the consolidated petitions present three primary issues, viz: a) whether the testimony of
Raymond Manalo is credible; b) whether the chief of the AFP, the commanding general of the Philippine
Army, as well as the heads of the concerned units had command responsibility over the abduction and
detention of Sherlyn, Karen and Merino; and c) whether there is a need to file a motion for execution to
cause the release of the aggrieved parties.

G.R. Nos. 184461-62

Petitioners Lt. Col. Boac, et al. contend that the appellate court erred in giving full credence to the testimony
of Manalo who could not even accurately describe the structures of Camp Tecson where he claimed to have
been detained along with Sherlyn, Karen and Merino. They underscore that Camp Tecson is not under the
jurisdiction of the 24th Infantry Batallion and that Manalo’s testimony is incredible and full of
inconsistencies.32
In Secretary of National Defense v. Manalo,33 an original petition for Prohibition, Injunction and Temporary
Restraining Order which was treated as a petition under the Amparo Rule, said Rule having taken effect
during the pendency of the petition, the Court ruled on the truthfulness and veracity of the personal account
of Manalo which included his encounter with Sherlyn, Kara and Merino while on detention. Thus it held:

We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo’s
affidavit and testimony, viz:

x x x x.

We reject the claim of petitioners that respondent Raymond Manalo’s statements were not corroborated by
other independent and credible pieces of evidence. Raymond’s affidavit and testimony were corroborated by
the affidavit of respondent Reynaldo Manalo. The testimony and medical reports prepared by forensic
specialist Dr. Molino, and the pictures of the scars left by the physical injuries inflicted on respondents, also
corroborate respondents’ accounts of the torture they endured while in detention. Respondent Raymond
Manalo’s familiarity with the facilities in Fort Magsaysay such as the "DTU," as shown in his testimony and
confirmed by Lt. Col. Jimenez to be the "Division Training Unit," firms up respondents’ story that they were
detained for some time in said military facility. (citations omitted; emphasis and underscoring supplied)

On Manalo’s having allegedly encountered Sherlyn, Karen and Merino while on detention, the Court in the
immediately cited case synthesized his tale as follows:

The next day, Raymond’s chains were removed and he was ordered to clean outside the barracks. It was
then he learned that he was in a detachment of the Rangers. There were many soldiers, hundreds of them
were training. He was also ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn
Cadapan from Laguna.She told him that she was a student of the University of the Philippines and was
abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe torture and raped. She
was crying and longing to go home and be with her parents. During the day, her chains were removed and
she was made to do the laundry.

After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other captives,
Karen Empeño and Manuel Merino, arrived. Karen and Manuel were put in the room with "Allan" whose
name they later came to know as Donald Caigas, called "master" or "commander" by his men in the 24th
Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At times, Raymond and Reynaldo
were threatened, and Reynaldo was beaten up. In the daytime, their chains were removed, but were put
back on at night. They were threatened that if they escaped, their families would all be killed.

On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should be
thankful they were still alive and should continue along their "renewed life." Before the hearing of November
6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the hearing. However,
their parents had already left for Manila. Respondents were brought back to Camp Tecson. They stayed in
that camp from September 2006 to November 2006, and Raymond was instructed to continue using the
name "Oscar" and holding himself out as a military trainee. He got acquainted with soldiers of the 24th
Infantry Battalion whose names and descriptions he stated in his affidavit.

On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a camp of
the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed in that camp
until May 8, 2007. Some soldiers of the battalion stayed with them. While there, battalion soldiers whom
Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach with their guns. Sherlyn and
Karen also suffered enormous torture in the camp. They were all made to clean, cook, and help in raising
livestock.

Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers brought him
and Manuel with them to take and kill all sympathizers of the NPA. They were brought to Barangay Bayan-
bayanan, Bataan where he witnessed the killing of an old man doing kaingin. The soldiers said he was killed
because he had a son who was a member of the NPA and he coddled NPA members in his house. Another
time, in another "Operation Lubog," Raymond was brought to Barangay Orion in a house where NPA men
stayed. When they arrived, only the old man of the house who was sick was there. They spared him and
killed only his son right before Raymond’s eyes.

From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a
safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was in charge
of the house. Like in Limay, the five detainees were made to do errands and chores. They stayed in
Zambales from May 8 or 9, 2007 until June 2007.

In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel were
tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed and
experienced in the camp, viz:

x x x x.34 (emphasis and underscoring supplied)

The Court takes judicial notice of its Decision in the just cited Secretary of National Defense v.
Manalo35 which assessed the account of Manalo to be a candid and forthright narrative of his and his brother
Reynaldo’s abduction by the military in 2006; and of the corroborative testimonies, in the same case, of
Manalo’s brother Reynaldo and a forensic specialist, as well as Manalo’s graphic description of the detention
area. There is thus no compelling reason for the Court, in the present case, to disturb its appreciation in
Manalo’s testimony. The outright denial of petitioners Lt. Col. Boac, et al. thus crumbles.

Petitioners go on to point out that the assailed Decision of the appellate court is "vague and incongruent with
[its] findings" for, so they contend, while the appellate court referred to the perpetrators as "misguided and
self-righteous civilian and military elements of the 7th Infantry Division," it failed to identify who these
perpetrators are. Moreover, petitioners assert that Donald Caigas and Arnel Enriquez are not members of
the AFP. They furthermore point out that their co-petitioners Generals Esperon, Tolentino and Palparan
have already retired from the service and thus have no more control of any military camp or base in the
country.36

There is nothing vague and/or incongruent about the categorical order of the appellate court for petitioners
to release Sherlyn, Karen and Merino. In its discourse, the appellate court merely referred to "a few
misguided self-righteous people who resort to the extrajudicial process of neutralizing those who disagree
with the country’s democratic system of government." Nowhere did it specifically refer to the members of the
7th Infantry Division as the "misguided self-righteous" ones.

Petitioners finally point out that the parents of Sherlyn and Karen do not have the requisite standing to file
the amparo petition on behalf of Merino. They call attention to the fact that in the amparo petition, the
parents of Sherlyn and Karen merely indicated that they were "concerned with Manuel Merino" as basis for
filing the petition on his behalf.37

Section 2 of the Rule on the Writ of Amparo38 provides:

The petition may be filed by the aggrieved party or by any qualified person or entity in the following order:

(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved
party;

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil
degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or

(c) Any concerned citizen, organization, association or institution, if there is no known member of the
immediate family or relative of the aggrieved party.

Indeed, the parents of Sherlyn and Karen failed to allege that there were no known members of the
immediate family or relatives of Merino. The exclusive and successive order mandated by the above-quoted
provision must be followed. The order of priority is not without reason—"to prevent the indiscriminate and
groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the
aggrieved party."39

The Court notes that the parents of Sherlyn and Karen also filed the petition for habeas corpus on Merino’s
behalf. No objection was raised therein for, in a habeas corpus proceeding, any person may apply for the
writ on behalf of the aggrieved party.40

It is thus only with respect to the amparo petition that the parents of Sherlyn and Karen are precluded from
filing the application on Merino’s behalf as they are not authorized parties under the Rule.

G.R. No. 184495

Preliminarily, the Court finds the appellate court’s dismissal of the petitions against then President Arroyo
well-taken, owing to her immunity from suit at the time the habeas corpus and amparo petitions were filed.41

Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued
in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade
the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations
while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance
or distraction to enable him to fully attend to the performance of his official duties and functions. 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. x x x 42

Parenthetically, the petitions are bereft of any allegation that then President Arroyo permitted, condoned or
performed any wrongdoing against the three missing persons.

On the issue of whether a military commander may be held liable for the acts of his subordinates in an
amparo proceeding, a brief discussion of the concept of command responsibility and its application insofar
as amparo cases already decided by the Court is in order.

Rubrico v. Macapagal Arroyo43 expounded on the concept of command responsibility as follows:

The evolution of the command responsibility doctrine finds its context in the development of laws of war and
armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the
"responsibility of commanders for crimes committed by subordinate members of the armed forces or other
persons subject to their control in international wars or domestic conflict." In this sense, command
responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine
of command responsibility, foreshadowing the present-day precept of holding a superior accountable for the
atrocities committed by his subordinates should he be remiss in his duty of control over them. As then
formulated, command responsibility is "an omission mode of individual criminal liability," whereby the
superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the
perpetrators (as opposed to crimes he ordered). (citations omitted; emphasis in the original; underscoring
supplied)44

It bears stressing that command responsibility is properly a form of criminal complicity,45 and thus a
substantive rule that points to criminal or administrative liability.

An amparo proceeding is not criminal in nature nor does it ascertain the criminal liability of individuals or
entities involved. Neither does it partake of a civil or administrative suit.46 Rather, it is a remedial measure
designed to direct specified courses of action to government agencies to safeguard the constitutional right to
life, liberty and security of aggrieved individuals.47

Thus Razon Jr. v. Tagitis 48 enlightens:

[An amparo proceeding] does nor determine guilt nor pinpoint criminal culpability for the disappearance
[threats thereof or extrajudicial killings]; it determines responsibility, or at least accountability, for the
enforced disappearance…for purposes of imposing the appropriate remedies to address the
disappearance…49 (emphasis and underscoring supplied)

Further, Tagitis defines what constitutes "responsibility" and "accountability," viz:

x x x. Responsibility refers to the extent the actors have been established by substantial evidence to have
participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases
against the responsible parties in the proper courts. Accountability, on the other hand, refers to the
measure of remedies that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility defined above; or
who are imputed with knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is
justified by our primary goal of addressing the disappearance, so that the life of the victim is preserved and
his liberty and security are restored.50 (emphasis in the original; underscoring supplied)

Rubrico categorically denies the application of command responsibility in amparo cases to determine
criminal liability.51 The Court maintains its adherence to this pronouncement as far as amparo cases are
concerned.

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

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to
determine the author who, at the first instance, is accountable for, and has the duty to address, the
disappearance and harassments complained of, so as to enable the Court to devise remedial measures that
may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier,
however, the determination should not be pursued to fix criminal liability on respondents preparatory to
criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative
issuances, if there be any.52 (emphasis and underscoring supplied)

In other words, command responsibility may be loosely applied in amparo cases in order to identify those
accountable individuals that have the power to effectively implement whatever processes an amparo court
would issue.53 In such application, the amparo court does not impute criminal responsibility but merely
pinpoint the superiors it considers to be in the best position to protect the rights of the aggrieved party.

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

Relatedly, the legislature came up with Republic Act No. 985154 (RA 9851) to include command
responsibility as a form of criminal complicity in crimes against international humanitarian law, genocide and
other crimes.55 RA 9851 is thus the substantive law that definitively imputes criminal liability to those
superiors who, despite their position, still fail to take all necessary and reasonable measures within their
power to prevent or repress the commission of illegal acts or to submit these matters to the competent
authorities for investigation and prosecution.

The Court finds that the appellate court erred when it did not specifically name the respondents that it found
to be responsible for the abduction and continued detention of Sherlyn, Karen and Merino. For, from the
records, it appears that the responsible and accountable individuals are Lt. Col. Anotado, Lt. Mirabelle, Gen.
Palparan, Lt. Col. Boac, Arnel Enriquez and Donald Caigas. They should thus be made to comply with the
September 17, 2008 Decision of the appellate court to IMMEDIATELY RELEASE Sherlyn, Karen and
Merino.
The petitions against Generals Esperon, Razon and Tolentino should be dismissed for lack of merit as there
is no showing that they were even remotely accountable and responsible for the abduction and continued
detention of Sherlyn, Karen and Merino.

G.R. No. 187109.

Contrary to the ruling of the appellate court, there is no need to file a motion for execution for an amparo or
habeas corpus decision. Since the right to life, liberty and security of a person is at stake, the proceedings
should not be delayed and execution of any decision thereon must be expedited as soon as possible since
any form of delay, even for a day, may jeopardize the very rights that these writs seek to immediately
protect.

The Solicitor General’s argument that the Rules of Court supplement the Rule on the Writ of Amparo is
misplaced. The Rules of Court only find suppletory application in an amparo proceeding if the Rules
strengthen, rather than weaken, the procedural efficacy of the writ. As it is, the Rule dispenses with dilatory
motions in view of the urgency in securing the life, liberty or security of the aggrieved party. Suffice it to state
that a motion for execution is inconsistent with the extraordinary and expeditious remedy being offered by an
amparo proceeding.

In fine, the appellate court erred in ruling that its directive to immediately release Sherlyn, Karen and Merino
was not automatically executory. For that would defeat the very purpose of having summary proceedings56 in
amparo petitions. Summary proceedings, it bears emphasis, are immediately executory without prejudice to
further appeals that may be taken therefrom.57

WHEREFORE, in light of the foregoing discussions, the Court renders the following judgment:

1. The Petitions in G.R. Nos. 184461-62 and G.R. No. 184495 are DISMISSED. The Decision of the
Court of Appeals dated September 17, 2008 is AFFIRMED with modification in that respondents in
G.R. No. 184495, namely Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito
Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas are ordered to immediately
release Sherlyn Cadapan, Karen Empeño and Manuel Merino from detention.

The petitions against Generals Esperon, Razon and Tolentino are DISMISSED.

2. The petition in G.R. No. 187109 is GRANTED. The named respondents are directed to forthwith
comply with the September 17, 2008 Decision of the appellate court. Owing to the retirement and/or
reassignment to other places of assignment of some of the respondents herein and in G.R. No.
184495, the incumbent commanding general of the 7th Infantry Division and the incumbent battalion
commander of the 24th Infantry Battalion, both of the Philippine Army, are enjoined to fully ensure
the release of Sherlyn Cadapan, Karen Empeño and Manuel Merino from detention. 1aw phi 1

Respondents Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito Palparan, Lt. Col.
Rogelio Boac, Arnel Enriquez and Donald Caigas shall remain personally impleaded in the petitions
to answer for any responsibilities and/or accountabilities they may have incurred during their
incumbencies.

Let copies of this Decision and the records of these cases be furnished the Department of Justice (DOJ), the
Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) for further investigation to
determine the respective criminal and administrative liabilities of respondents.

All the present petitions are REMANDED to the Court of Appeals for appropriate action, directed at
monitoring of the DOJ, PNP and AFP investigations and the validation of their results.

SO ORDERED.