.R. No. 88211 October 27, 1989 President Aquino's decision to bar the return of the remains of Mr.
dent Aquino's decision to bar the return of the remains of Mr. Marcos, and the
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
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.
1
Article II, [section] 1, provides that "The Executive Power shall be vested in a President decision to bar the return of the Marcoses and subsequently, the remains of Mr. Marcos
of the United States of America." In Alexander Hamilton's widely accepted view, this at the present time and under present circumstances is in compliance with this bounden
statement cannot be read as mere shorthand for the specific executive authorizations duty. In the absence of a clear showing that she had acted with arbitrariness or with
that follow it in [sections] 2 and 3. Hamilton stressed the difference between the grave abuse of discretion in arriving at this decision, the Court will not enjoin the
sweeping language of article II, section 1, and the conditional language of article I, implementation of this decision.
[section] 1: "All legislative Powers herein granted shall be vested in a Congress of the ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack
United States . . ." Hamilton submitted that "[t]he [article III enumeration [in sections 2 of merit."
and 31 ought therefore to be considered, as intended merely to specify the principal
articles implied in the definition of execution power; leaving the rest to flow from the
general grant of that power, interpreted in confomity with other parts of the
Constitution...
In Myers v. United States, the Supreme Court — accepted Hamilton's proposition,
concluding that the federal executive, unlike the Congress, could exercise power from
sources not enumerated, so long as not forbidden by the constitutional text: the
executive power was given in general terms, strengthened by specific terms where
emphasis was regarded as appropriate, and was limited by direct expressions where
limitation was needed. . ." The language of Chief Justice Taft in Myers makes clear that
the constitutional concept of inherent power is not a synonym for power without limit;
rather, the concept suggests only that not all powers granted in the Constitution are
themselves exhausted by internal enumeration, so that, within a sphere properly
regarded as one of "executive' power, authority is implied unless there or elsewhere
expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the President's implied
or residual powers is tantamount to setting the stage for another dictatorship. Despite
petitioners' strained analogy, the residual powers of the President under the
Constitution should not be confused with the power of the President under the 1973
Constitution to legislate pursuant to Amendment No. 6 which provides:
Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on any
matter for any reason that in his judgment requires immediate action, he may, in order
to meet the exigency, issue the necessary decrees, orders, or letters of instruction,
which shall form part of the law of the land,
There is no similarity between the residual powers of the President under the 1987
Constitution and the power of the President under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power.
It is not implied. Then, Amendment No. 6 refers to a grant to the President of thespecific
power of legislation.
4. Among the duties of the President under the Constitution, in compliance with his (or
her) oath of office, is to protect and promote the interest and welfare of the people. Her
2
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.
DECISION
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 (10)
million Filipinos voted for the petitioner believing he would rescue them from lifes
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 Governos, Luis Chavit Singson, a longtime
friend of the petitioner, went on air and accused the petitioner, his family and friends of
receiving millions of pesos from jueteng lords.[1]
The expos immediately ignited reactions of rage. The next day, October 5, 2000,
Senator Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and
delivered a fiery privilege speech entitled I Accuse. He accused the petitioner of
receiving some P220 million in jueteng money from Governor Singson from November
1998 to August 2000. He also charged that the petitioner took from Governor
Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon
Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice
(then headed by Senator Renato Cayetano) for joint investigation.[2]
The House of Representatives did no less. The House Committee on Public Order and
Security, then headed by Representative Roilo Golez, decided to investigate the expos
of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto
Herrera and Michael Defensor spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime
Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the
Archdiocese of Manila, asking petitioner to step down from the presidency as he had
lost the moral authority to govern.[3] Two days later or on October 13, the Catholic
Bishops Conference of the Philippines joined the cry for the resignation of the
petitioner.[4] Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the supreme self-sacrifice of
resignation.[5] Former President Fidel Ramos also joined the chorus. Early on, or on
October 12, respondent Arroyo resigned as Secretary of the Department of Social
Welfare and Services[6] and later asked for petitioners resignation.[7]However, petitioner
strenuously held on to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers, members of the
Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de
Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and
Washington Sycip.[8] On November 2, Secretary Mar Roxas II also resigned from the
Department of Trade and Industry.[9] On November 3, Senate President Franklin Drilon,
and House Speaker Manuel Villar, together with some 47 representatives defected
from the ruling coalition, Lapian ng Masang Pilipino.[10]
The month of November ended with a big bang. In a tumultuous session on November
13, House Speaker Villar transmitted the Articles of Impeachment[11] signed by 115
representatives, or more than 1/3 of all the members of the House of Representatives
to the Senate. This caused political convulsions in both houses of Congress. Senator
Drilon was replaced by Senator Pimentel as Senate President.Speaker Villar was
unseated by Representative Fuentabella.[12] On November 20, the Senate formally
opened the impeachment trial of the petitioner. Twenty-one (21) senators took their
oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.[13]
The political temperature rose despite the cold December. On December 7, the
impeachment trial started.[14] the battle royale was fought by some of the marquee
names in the legal profession. Standing as prosecutors were then House Minority Floor
Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Taada, Sergio
Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar
Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of
private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor
General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P.
Mendoza, former City Fiscal of Manila Jose Flamiano, 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
3
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 petitioners
Secretary of Finance took the witness stand. He alleged that the petitioner jointly
owned BW Resources Corporation with Mr. Dante Tan who was facing charges of
insider trading.[16] Then came the fateful day of January 16, when by a vote of 11-
10[17] the senator-judges ruled against the opening of the second envelop which
allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank
account under the name Jose Velarde. The public and private prosecutors walked out
in protest of the ruling. In disgust, Senator Pimentel resigned as Senate
President.[18] The ruling made at 10:00 p.m. was met by a spontaneous outburst of
anger that hit the streets of the metropolis. By midnight, thousands had assembled at
the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and
the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker Fuentebella
tendering their collective resignation. They also filed their Manifestation of Withdrawal
of Appearance with the impeachment tribunal.[19] Senator Raul Roco quickly moved for
the indefinite postponement of the impeachment proceedings until the House of
Representatives shall have resolved the issue of resignation of the public
prosecutors. Chief Justice Davide granted the motion.[20]
January 18 saw the high velocity intensification of the call for petitioners 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 peoples solidarity in demanding petitioners 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
envelop.[26] There was no turning back the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of
negotiations for the peaceful and orderly transfer of power started at Malacaangs
Mabini Hall, Office of the Executive Secretary. Secretary Edgardo Angara, Senior
Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst.
Secretary Boying Remulla, and Atty. Macel Fernandez, head of the presidential
Management Staff, negotiated for the petitioner. Respondent Arroyo was represented
by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.[27] Outside the palace, there was a brief
encounter at Mendiola between pro and anti-Estrada protesters which resulted in
stone-throwing and caused minor injuries. The negotiations consumed all morning until
the news broke out that Chief Justice Davide would administer the oath to respondent
Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo
as President of the Philippines.[28] At 2:30 p.m., petitioner and his family hurriedly left
Malacaang Palace.[29] He issued the following press statement:[30]
20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds
of our country, I have strong and serious doubts about the legality and constitutionality
of her proclamation as President, I do not wish to be a factor that will prevent the
restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to me
for service to our people. I will not shirk from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive
national spirit of reconciliation and solidarity.
4
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.[32] 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 and 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 Resolved unanimously to confirm the
authority given by the twelve (12) members of the Court then present to the Chief
Justice on January 20, 2001 to administer the oath of office to Vice President Gloria
Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that maybe
filed by a proper party.
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and
special envoys.[34] Recognition of respondent Arroyos government by foreign
governments swiftly followed. On January 23, in a reception or vin d honneur at
Malacaang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco,
more than a hundred foreign diplomats recognized the government of respondent
Arroyo.[35] US President George W. Bush gave the respondent a telephone call from
the White House conveying US recognition of her government.[36]
On January 24, Representative Feliciano Belmonte was elected new Speaker of the
House of Representatives.[37] The House then passed Resolution No. 175 expressing
the full support of the House of Representatives to the administration of Her Excellency
Gloria Macapagal-Arroyo, President of the Philippines.[38] It also approved Resolution
No. 176 expressing the support of the House of Representatives to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, extending its congratulations and expressing its support for her
administration as a partner in the attainment of the nations goals under the
Constitution.[39]
On January 26, the respondent signed into law the Solid Waste Management Act.[40] A
few days later, she also signed into law the Political Advertising Ban and Fair Election
Practices Act.[41]
On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her
Vice President.[42] the next day, February 7, the Senate adopted Resolution No. 82
confirming the nomination of Senator Guingona, Jr.[43] Senators Miriam Defensor-
Santiago, Juan Ponce Enrile, and John Osmea voted yes with reservations, citing as
reason therefore the pending challenge on the legitimacy of respondent Arroyos
presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert
Barbers were absent.[44] The House of Representatives also approved Senator
Guingonas nomination in Resolution No. 178.[45] Senator Guingona 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 Arroyos 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, and 54% among
the Es or very poor class.[50]
After his fall from the pedestal of power, the petitioners 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
5
plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB
Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for
malversation of public funds, illegal use of public funds and property, plunder, etc., (5)
OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for
bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080;
and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4,
2000 for plunder, graft and corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman
to investigate the charges against the petitioner. It is chaired by Overall Deputy
Ombudsman Margarito P. Gervasio with the following as members, viz: Director
Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty.
Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner
to file his counter-affidavit and the affidavits of his witnesses as well as other supporting
documents in answer to the aforementioned complaints against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this
Court GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary
injunction. It sought to enjoin the respondent Ombudsman from conducting any further
proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any
other criminal complaint that may be filed in his office, until after the term of petitioner
as President is over and only if legally warranted. Thru another counsel, petitioner, on
February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment confirming
petitioner to be the lawful and incumbent President of the Republic of the Philippines
temporarily unable to discharge the duties of his office, and declaring respondent to
have taken her oath as and to be holding the Office of the President, only in an acting
capacity pursuant to the provisions of the Constitution. Acting on GR Nos. 146710-15,
the Court, on the same day, February 6, required the respondents to comment thereon
within a non-extendible period expiring on 12 February 2001. On February 13, the
Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the
filing of the respondents comments on or before 8:00 a.m. of February 15.
On February 15, the consolidated cases were orally argued in a four-hour
hearing. Before the hearing, Chief Justice Davide, Jr.,[51] and Associate Justice Artemio
Panganiban[52] recused themselves on motion of petitioners counsel, former Senator
Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have
compromised themselves by indicating that they have thrown their weight on one side
but nonetheless inhibited themselves. Thereafter, the parties were given the short
period of five (5) days to file their memoranda and two (2) days to submit their
simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution
and press statement for Gag Order on respondent Ombudsman filed by counsel for
petitioner in G.R. No. 146738, the Court resolved:
(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue
a press statement justifying the alleged resolution;
(2) to order the parties and especially their counsel who are officers of the Court under
pain of being cited for contempt to refrain from making any comment or discussing in
public the merits of the cases at bar while they are still pending decision by the Court,
and
(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his
office against petitioner Joseph E. Estrada and subject of the cases at bar, it appearing
from news reports that the respondent Ombudsman may immediately resolve the
cases against petitioner Joseph E. Estrada seven (7) days after the hearing held on
February 15, 2001, which action will make the cases at bar moot and academic.[53]
The parties filed their replies on February 24. On this date, the cases at bar were
deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy, whether petitioner
Estrada is a President on leave while respondent Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition precedent for the
criminal prosecution of petitioner Estrada. In the negative and on the assumption that
petitioner is still President, whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined on the ground of
prejudicial publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases at bar involve a political question
Private respondents[54] raise the threshold issue that the cases at bar pose a political
question, and hence, are beyond the jurisdiction of this Court to decide. They contend
that shorn of its embroideries, the cases at bar assail the legitimacy of the Arroyo
administration. They stress that respondent Arroyo ascended the presidency through
people power; that she has already taken her oath as the 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.
6
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 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 of Baker v. Carr,[56] viz:
x x x Prominent on the surface on 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 discretions; 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 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 questions 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, notlegality 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 nots of the Constitution directed against the
exercise of its jurisdiction.[60]With the new provision, however, courts are given a
greater prerogative to determine what it can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of government. Clearly, the new provision did not just grant the Court power of
doing nothing. In sync and symmetry with this intent are other provisions of the 1987
Constitution trimming the so called political thicket. Prominent of these provisions is
section 18 of Article VII which empowers this Court in limpid language to x x x review,
in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ (of habeas
corpus) or the extension thereof x x x.
Respondents rely on the case of Lawyers League for a Better Philippines and/or
Oliver A. Lozano v. President Corazon C. Aquino, et al.[61] and related cases[62] to
support their thesis that since the cases at bar involve the legitimacy of the government
of respondent Arroyo, ergo, they present a political question. A more cerebral reading
of the cited cases will show that they are inapplicable. In the cited cases, we held that
the government of former President Aquino was the result of a successful revolution
by the sovereign people, albeit a peaceful one. No less than the Freedom
Constitution[63] declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people in defiance of the provisions of the 1973
Constitution, as amended. It is familiar learning that the legitimacy of a government
sired by a successful revolution by people power is beyond judicial scrutiny for that
government automatically orbits out of the constitutional loop. In checkered
contrast, the government of respondent Arroyo is not revolutionary in
character. The oath that she took at the EDSA Shrine is the oath under the 1987
Constitution.[64] In her oath, she categorically swore to preserve and defend the
1987 Constitution. Indeed, she has stressed that she is discharging the powers of the
presidency under the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I and 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 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
7
means; (2) of the right of association for purposes of human life and which are not
contrary to public means; and (3) of the right to send petitions to the authorities,
individually or collectively. These fundamental rights were preserved when the
United States acquired jurisdiction over the Philippines. In the instruction to the
Second Philippine Commission of April 7, 1900 issued by President McKinley, it is
specifically provided that no law shall be passed abridging the freedom of speech or of
the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances. The guaranty was carried over in the Philippine
Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of
August 29, 1966.[66]
Thence on, the guaranty was set in stone in our 1935 Constitution,[67] and
the 1973[68] Constitution. These rights are now safely ensconced in section 4, Article
III of the 1987 Constitution, viz:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.
The indispensability of the peoples freedom of speech and of assembly to democracy
is now self-evident. The reasons are well put by Emerson: first, freedom of expression
is essential as a means of assuring individual fulfillment; second, it is an essential
process for advancing knowledge and discovering truth; third, it is essential to provide
for participation in decision-making by all members of society; and fourth, it is a method
of achieving a more adaptable and hence, a more stable community of maintaining the
precarious balance between healthy cleavage and necessary consensus.[69] In this
sense, freedom of speech and of assembly provides a framework in which the
conflict necessary to the progress of a society can take place without destroying
the society.[70] In Hague v. Committee for Industrial Organization,[71] this function
of free speech and assembly was echoed in the amicus curiae brief 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 similarly stressed that "... it should
be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy,
it is the people who count; those who are deaf to their grievances are ciphers.
Needless to state, the cases at bar pose legal and not political questions. The principal
issues for resolution require the proper interpretation of certain provisions in the 1987
Constitution, notably section 1 of Article II,[74] and section 8[75]of Article VII, and the
allocation of governmental powers under section 11[76] of Article VII. The issues
likewise call for a ruling on the scope of presidential immunity from suit. They also
involve the correct calibration of the right of petitioner against prejudicial publicity. As
early as the 1803 case of Marbury v. Madison,[77] the doctrine has been laid down
that it is emphatically the province and duty of the judicial department to say
what the law is . . . Thus, respondents invocation of the doctrine of political 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 of 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 acts as President until
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 Republic. 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 governed 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 shows that petitioner did not write any formal letter of
resignation before he evacuated Malacaang Palace in the Afternoon of January 20,
2001 after the oath-taking of respondent Arroyo. Consequently, whether or not
petitioner resigned has to be determined from his acts and omissions before, during
and after January 20, 2001 or by the totality of prior, contemporaneous and
posterior facts and circumstantial evidence bearing a material relevance on the
issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the petitioner, it is
important to follow the succession of events after the expos of Governor Singson. The
Senate Blue Ribbon Committee investigated. The more detailed revelations of
8
petitioners 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, petitioners 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 peoples 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 morning of January 19, petitioners loyal
advisers were worried about the swelling of the crowd at EDSA, hence, they decided
to crate 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 AFPs 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 ofdignified exit or resignation.[81] Petitioner did nor
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
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 (lets
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 petitioners 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:
xxx
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 dont
want any more of this its too painful. Im 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:
Oppositions deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagals 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.
9
2. Beginning today, 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 effective immediately.
4. The Armed Forces 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 guaranteed 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 siting 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 under 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.
xxx
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.
10
Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldnt you wait?
What about the agreement)? I asked.
Reyes answered: Wala na, sir (Its over, sir).
I asked him: Di yung transition period, moot and academic na?
And General Reyes answer: Oo nga, i-delete na natin, sir (Yes, were deleting that 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 provision 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 Presidents personal staff is rushing to pack as many of the Estrada familys
personal possessions as they can.
During lunch, Ronie Puno mentions that the President needs to release a final
statement before leaving Malacaang.
The statement reads: At twelve oclock noon today, Vice President Gloria Macapagal-
Arroyo took her oath as President of the Republic of the Philippines. While along with
many other legal minds of our country, I have strong and serious doubts about the
legality and constitutionality of her proclamation as president, I do not wish to be a
factor that will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to me
for service to our people. I will not shrik from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive
national spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted. It was
confirmed by his leaving Malacaang. In the press release containing his final
statement, (1) he acknowledged the oath-taking of the respondent as President of
the Republic albeit with the 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 of 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. Petitioners 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 petitioners
valedictory, his final act of farewell. His presidency is now in the past tense.
It is, however, urged that the petitioner did not resign but only took a temporary
leave of absence due to his inability to govern. In support of this thesis, the letter
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, nay 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 being. Under any
circumstance, however, the mysterious letter cannot negate the resignation of
11
the petitioner. If it was prepared before the press release of the petitioner clearly
showing his resignation from the presidency, then the resignation must prevail as a
later act. If, however, it was prepared after the press release, still, it commands scant
legal significance. Petitioners 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 repudiation by the people. There is another reason why this Court
cannot give any legal significance to petitioners 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,
criminal 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 from 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 from 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 Presidents immunity should
extend even after his tenure.
Senate Bill No. 571, which was substantially similar to 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 petitioners 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
12
presidency. His significant submittal is thatCongress 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 petitioners 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 transmit 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 Representative passed on January 24,
2001 House Resolution No. 175;[96]
On the same date, the House of the Representatives passed House Resolution No.
176[97]which states:
RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT
GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS
SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF
THE NATIONS GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the peoples 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 surrendering 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 Nations goals under the
Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
13
This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General
On February 7, 2001, the House of the Representatives passed House Resolution
No. 178[98] which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS
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 petitioners 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 resolute 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 our duties to attain desired changes
and overcome the nations challenges.[99]
On February 7, the Senate also passed Senate Resolution No. 82[100] which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS
NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is it 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 Phillippines;
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
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 land - which qualities merit
his nomination to the position of Vice President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen.
Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate
On the same date, February 7, the Senate likewise passed Senate Resolution No.
83[101] which states:
RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS
OFFICIO
14
Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment
Court is functus officio and has been terminated.
Resolved, further, That the Journals of the Impeachment Court of 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 a 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 petitioners claim of inability.
The question is whether this Court has jurisdiction to review the claim
of temporary inability of petitioner Estrada and thereafter revise the decision of
both Houses of Congress recognizing respondent Arroyo as President of the
Philippines. Following Taada v. Cuenco,[102] we hold that this Court cannot exercise its
judicial power for this is an issue in regard to which full discretionary authorityhas been
delegated to the Legislative x x x branch of the government. Or to use the language
in Baker vs. Carr,[103] there is 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. Clearly, the Court cannot pass upon petitioners
claim of inability to discharge the powers 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 petitioners contentions, a revisit of our legal history on 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 Crossfield,[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 no remedy, but must submit in
silence. On the contrary, it means, simply, that the Governor-General, like the judges
of 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 matter 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
15
from the performance of his official duty, any more that it can a member of the Philippine
Commission or 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 exercise
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 judgment, that is, the judicial faculty, in determining whether he had authority to
act or not. In other words, he is entitled to protection 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 is 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, he 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: x x x. 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 a 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 Kings Men: The Law Of Privilege As A Defense To Actions For
Damages,[106] petitioners learned counsel, former Dean of the UP college of Law, Atty.
Pacifico Agabin, brightlined 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 from 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 then 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, viz:[108]
Mr. Suarez. Thank you.
The last question is with reference to the committees 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 this 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 litigations,
as the President-in-exile in Hawaii is now facing litigations 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 thank the Commissioner for the clarification.
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
16
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 judgment 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 In re: Saturnino Bermudez[111]that incumbent
Presidents are immune from suit or from being brought to court during the period of
their incumbency and tenure but not beyond. Considering the peculiar circumstance
that the impeachment process against the petitioner has been aborted and thereafter
he lost the presidency, petitioner Estrada cannot demand as a conditionsine qua non to
his criminal prosecution before the Ombudsman that he be convicted in the
impeachment proceedings. His reliance in the case of Lecaroz vs.
Sandiganbayan[112] and related cases[113]are inapropos for they have a different factual
milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-
sitting President. The cases filed against petitioner Estrada are criminal in
character. They involve plunder, bribery and graft and corruption. By no stretch
of the imagination can these crimes, especially plunder which carries the death penalty,
be covered by the allege 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
omissions. 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 other trespasser.[114] Indeed, a 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 Nixons associates were facing charges of conspiracy to obstruct justice and
other offenses which were committed in a burglary of the Democratic National
Headquarters in Washingtons Watergate Hotel during the 1972 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 ofClinton v. Jones[117] where it held that the US Presidents 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 (t)he State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption."[119] It ordained that
(p)ublic 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 (t)he 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, laches 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 "(i)nvestigate
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
petitioners claim that a non-sitting president enjoys immunity from suit for
criminal acts committed during his incumbency.
V
Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity
17
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 to file the criminal cases in 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] TheAmerican 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 appellants 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 now rule that the right of an accused to a fair trial is not
incompatible to a free press. To be sure, responsible reporting enhances an accuseds
right to a fair trial for, as well pointed out, a responsible press has always been regarded
as the handmaiden of effective judicial administration, especially in the criminal field x
x x. 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 their impartiality. x x x x x x x x x. Our
judges are learned in the law and trained to disregard off-court evidence and on-
camera performances of parties to a 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 bar, the records do not show that the trial judge developed actual bias against
appellant 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 if 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.
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. Inn the seminal
case of Richmond Newspapers, Inc. v. Virginia, it was wisely held:
(a) The historical evidence of the evolution of the criminal trial in Anglo-American
justice demonstrates conclusively that the time this Nations 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 societys criminal process satisfy the
appearance of justice, Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which
18
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 Nations system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80
S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on matters
relating to the functioning of government. In guaranteeing freedoms such as those of speech
and press, the First Amendment can be read as protecting the right of everyone to attend trials
so as give meaning to those explicit guarantees; the First Amendment right to receive
information and ideas means, in the context of trials, that the guarantees of speech and press,
standing alone, prohibit government from summarily closing courtroom doors which had long
been open to the public at the time the First Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which it was
deliberately linked by the draftsmen. A trial courtroom is a public place where the people
generally and representatives of the media have a right to be present, and where their presence
historically has been thought to enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly guaranteed,
have been recognized as indispensable to the enjoyment of enumerated rights. The right to
attend criminal 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 could be eviscerated. Be that as it may, we recognize that pervasive
and prejudicial publicity under certain circumstances can deprive an accused of his due process
right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al.,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 petitioners submission, the respondent Ombudsman has been
influenced by the barrage of slanted news reports, and he has buckled to the threats and
pressures directed at him by the mobs.[132] News reports have also been quoted to establish
that the respondent Ombudsman has already prejudged the cases of the petitioner [133]and it is
postulated that the prosecutors investigating the petitioner will be influenced by this bias of their
superior. Again, we hold that the evidence proffered by the petitioner is insubstantial. The
accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice
by this Court especially in light of the denials of the respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and regularity in the performance of official duty to
which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e.,
that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our
Revised Rules of Criminal Procedure, give investigating 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 to change their recommendations nor can they
be compelled to prosecute 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 finding of probable cause against him is the result of bias, he still has the remedy of
assailing it before the proper court.
VI.
Epilogue
A word of caution to the hooting throng. The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman.
Predictably, the call from the majority for instant justice will hit a higher decibel while the
gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused
to a fair investigation and trial which has been categorized as the most fundamental of all
freedoms.[135] To be sure, the duty of a prosecutor is more to do justice and less to prosecute.
His is the obligation to insure that the preliminary investigation of the petitioner shall have a
circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls the
impatient vehemence of the majority. Rights in a democracy are not decided by the mob whose
judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power
of number for in a democracy, the dogmatism of the majority is not and should never be the
definition of the rule of law. If democracy has proved to be the best form of government, it is
because it has respected the right of the minority to convince the majority that it is wrong.
Tolerance of multiformity of thoughts, however offensive they may be, is the key to mans
19
progress from the cave to civilization. Let us not throw away that key just to pander to some corresponding compensation therefor; Provided, that this limitation shall not apply to
peoples prejudice. IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging ad hoc bodies or committees, or to boards, councils or bodies of which the President
the respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are is the Chairman.
DISMISSED. Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other
SO ORDERED.
appointive official of the Executive Department holds more positions than what is
G.R. No. 83896 February 22, 1991
allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of
CIVIL LIBERTIES UNION, petitioner,
the subordinate official who is next in rank, but in no case shall any official hold more
vs.
than two positions other than his primary position.
THE EXECUTIVE SECRETARY, respondent.
Sec. 3. In order to fully protect the interest of the government in government-owned or
G.R. No. 83815 February 22, 1991
controlled corporations, at least one-third (1/3) of the members of the boards of such
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T.
corporation should either be a secretary, or undersecretary, or assistant secretary.
REYES, petitioners,
Petitioners maintain that this Executive Order which, in effect, allows members of the
vs.
Cabinet, their undersecretaries and assistant secretaries to hold other government
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ,
offices or positions in addition to their primary positions, albeit subject to the limitation
as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education,
therein imposed, runs counter to Section 13, Article VII of the 1987
Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment
Constitution, 2 which provides as follows:
and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies
ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor
or assistants shall not, unless otherwise provided in this Constitution, hold any other
and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V.
office or employment during their tenure. They shall not, during said tenure, directly or
RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press
indirectly practice any other profession, participate in any business, or be financially
Secretary; JUANITO FERRER, as Secretary of Public Works and Highways;
interested in any contract with, or in any franchise, or special privilege granted by the
ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE
Government or any subdivision, agency, or instrumentality thereof, including
CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ,
government-owned or controlled corporations or their subsidiaries. They shall strictly
as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health;
avoid conflict of interest in the conduct of their office.
REINERIO D. REYES, as Secretary of Transportation and Communication;
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents,
GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD,
as members of the Cabinet, along with the other public officials enumerated in the list
as Head of the National Economic Development Authority, respondents.
attached to the petitions as Annex "C" in G.R. No.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for
83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or
petitioners in 83896.
employment during their tenure. In addition to seeking a declaration of the
Antonio P. Coronel for petitioners in 83815.
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
FERNAN, C.J.:p
respondents therein to cease and desist from holding, in addition to their primary
These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and
positions, dual or multiple positions other than those authorized by the 1987
are being resolved jointly as both seek a declaration of the unconstitutionality of
Constitution and from receiving any salaries, allowances, per diems and other forms of
Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The
privileges and the like appurtenant to their questioned positions, and compelling public
pertinent provisions of the assailed Executive Order are:
respondents to return, reimburse or refund any and all amounts or benefits that they
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of
may have received from such positions.
the Cabinet, undersecretary or assistant secretary or other appointive officials of the
Specifically, petitioner Anti-Graft League of the Philippines charges that
Executive Department may, in addition to his primary position, hold not more than two
notwithstanding the aforequoted "absolute and self-executing" provision of the 1987
positions in the government and government corporations and receive the
20
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." 7Article IX-B, Section 7, par. (2) 8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the government or any
subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series
of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series of
1987 9 and DOJ Opinion No. 155, series of 1988, 10being the first official construction
and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of
Section 7, Article I-XB of the Constitution, involving the same subject of appointments
or designations of an appointive executive official to positions other than his primary
position, is "reasonably valid and constitutionally firm," and that Executive Order No.
284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently
constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ
Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as
not applying to ex-officio positions or to positions which, although not so designated
as ex-officio are allowed by the primary functions of the public official, but only to the
holding of multiple positions which are not related to or necessarily included in the
position of the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by
petitioners on the principal submission that it adds exceptions to Section 13, Article VII
other than those provided in the Constitution. According to petitioners, by virtue of the
phrase "unless otherwise provided in this Constitution," the only exceptions against
holding any other office or employment in Government are those provided in the
Constitution, namely: (1) The Vice-President may be appointed as a Member of the
Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is
an ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article
VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2),
Article I-XB on the Civil Service Commission applies to officers and employees of the
Civil Service in general and that said exceptions do not apply and cannot be extended
to Section 13, Article VII which applies specifically to the President, Vice-President,
Members of the Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the
members of the Cabinet and their deputies or assistants from holding dual or multiple
positions in the Government admits of certain exceptions. The disagreement between
petitioners and public respondents lies on the constitutional basis of the exception.
Petitioners insist that because of the phrase "unless otherwise provided in this
Constitution" used in Section 13 of Article VII, the exception must be expressly provided
in the Constitution, as in the case of the Vice-President being allowed to become a
Member of the Cabinet under the second paragraph of Section 3, Article VII or the
Secretary of Justice being designated an ex-officio member of the Judicial and Bar
Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain
that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII
makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials
mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the
1987 Constitution insofar as Cabinet members, their deputies or assistants are
concerned admit of the broad exceptions made for appointive officials in general under
Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless
otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the
provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
21
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
22
in any business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries." These sweeping, all-embracing prohibitions imposed on the President
and his official family, which prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress, members of the civil service
in general and members of the armed forces, are proof of the intent of the 1987
Constitution to treat the President and his official family as a class by itself and to
impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and
his official family was also succinctly articulated by Commissioner Vicente Foz after
Commissioner Regalado Maambong noted during the floor deliberations and debate
that there was no symmetry between the Civil Service prohibitions, originally found in
the General Provisions and the anticipated report on the Executive Department.
Commissioner Foz Commented, "We actually have to be stricter with the President and
the members of the Cabinet because they exercise more powers and, therefore, more
cheeks and restraints on them are called for because there is more possibility of abuse
in their case." 14
Thus, while all other appointive officials in the civil service are allowed to hold other
office or employment in the government during their tenure when such is allowed by
law or by the primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by the Constitution
itself. In other words, Section 7, Article I-XB is meant to lay down the general rule
applicable to all elective and appointive public officials and employees, while Section
13, Article VII is meant to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions
provided under Section 7, Article I-XB of the 1987 Constitution. To construe said
qualifying phrase as respondents would have us do, would render nugatory and
meaningless the manifest intent and purpose of the framers of the Constitution to
impose a stricter prohibition on the President, Vice-President, Members of the Cabinet,
their deputies and assistants with respect to holding other offices or employment in the
government during their tenure. Respondents' interpretation that Section 13 of Article
VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate
the distinction so carefully set by the framers of the Constitution as to when the high-
ranking officials of the Executive Branch from the President to Assistant Secretary, on
the one hand, and the generality of civil servants from the rank immediately below
Assistant Secretary downwards, on the other, may hold any other office or position in
the government during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts
of the Constitution inoperative. This observation applies particularly to the Vice-
President who, under Section 13 of Article VII is allowed to hold other office or
employment when so authorized by the Constitution, but who as an elective public
official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for appointment or
designation in any capacity to any public office or position during his tenure." Surely,
to say that the phrase "unless otherwise provided in this Constitution" found in Section
13, Article VII has reference to Section 7, par. (1) of Article I-XB would render
meaningless the specific provisions of the Constitution authorizing the Vice-President
to become a member of the Cabinet,15 and to act as President without relinquishing the
Vice-Presidency where the President shall not nave been chosen or fails to
qualify.16 Such absurd consequence can be avoided only by interpreting the two
provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing
the general rule and the other, i.e., Section 13, Article VII as constituting the exception
thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-
a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all
the provisions bearing upon a particular subject are to be brought into view and to be
so interpreted as to effectuate the great purposes of the instrument. 17Sections bearing
on a particular subject should be considered and interpreted together as to effectuate
the whole purpose of the Constitution 18 and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean in favor
of a construction which will render every word operative, rather than one which may
make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies
and assistants with respect to holding multiple offices or employment in the government
during their tenure, the exception to this prohibition must be read with equal severity.
On its face, the language of Section 13, Article VII is prohibitory so that it must be
understood as intended to be a positive and unequivocal negation of the privilege of
holding multiple government offices or employment. Verily, wherever the language
used in the constitution is prohibitory, it is to be understood as intended to be a positive
and unequivocal negation. 21 The phrase "unless otherwise provided in this
Constitution" must be given a literal interpretation to refer only to those particular
instances cited in the Constitution itself, to wit: the Vice-President being appointed as
a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in
those instances provided under Section 7, pars. (2) and (3), Article VII; and, the
23
Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue
of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section
13, Article VII of the Constitution must not, however, be construed as applying to posts
occupied by the Executive officials specified therein without additional compensation
in an ex-officio capacity as provided by law and as required 22 by the primary functions
of said officials' office. The reason is that these posts do no comprise "any other office"
within the contemplation of the constitutional prohibition but are properly an imposition
of additional duties and functions on said officials. 23 To characterize these posts
otherwise would lead to absurd consequences, among which are: The President of the
Philippines cannot chair the National Security Council reorganized under Executive
Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive
Secretary, and the Secretaries of National Defense, Justice, Labor and Employment
and Local Government sit in this Council, which would then have no reason to exist for
lack of a chairperson and members. The respective undersecretaries and assistant
secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the
National Manpower and Youth Council (NMYC) or the Philippine Overseas
Employment Administration (POEA), both of which are attached to his department for
policy coordination and guidance. Neither can his Undersecretaries and Assistant
Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither
can their respective undersecretaries and assistant secretaries. The Central Bank
Governor would then be assisted by lower ranking employees in providing policy
direction in the areas of money, banking and credit.25
Indeed, the framers of our Constitution could not have intended such absurd
consequences. A Constitution, viewed as a continuously operative charter of
government, is not to be interpreted as demanding the impossible or the impracticable;
and unreasonable or absurd consequences, if possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as
covering positions held without additional compensation in ex-officio capacities as
provided by law and as required by the primary functions of the concerned official's
office. The term ex-officio means "from office; by virtue of office." It refers to an
"authority derived from official character merely, not expressly conferred upon the
individual character, but rather annexed to the official position." Ex-officio likewise
denotes an "act done in an official character, or as a consequence of office, and without
any other appointment or authority than that conferred by the office." 27 An ex-
officio member of a board is one who is a member by virtue of his title to a certain office,
and without further warrant or appointment. 28 To illustrate, by express provision of law,
the Secretary of Transportation and Communications is the ex-officio Chairman of the
Board of the Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs.
Embroidery and Apparel Control and Inspection Board,31 thus: "An examination of
section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and
members of the Board to qualify they need only be designated by the respective
department heads. With the exception of the representative from the private sector,
they sit ex-officio. In order to be designated they must already be holding positions in
the offices mentioned in the law. Thus, for instance, one who does not hold a previous
appointment in the Bureau of Customs, cannot, under the act, be designated a
representative from that office. The same is true with respect to the representatives
from the other offices. No new appointments are necessary. This is as it should be,
because the representatives so designated merely perform duties in the Board in
addition to those already performed under their original appointments." 32
The term "primary" used to describe "functions" refers to the order of importance and
thus means chief or principal function. The term is not restricted to the singular but may
refer to the plural. 33 The additional duties must not only be closely related to, but must
be required by the official's primary functions. Examples of designations to positions by
virtue of one's primary functions are the Secretaries of Finance and Budget sitting as
members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority 34 and the Civil
Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related,
inconsistent, incompatible, or otherwise alien to the primary function of a cabinet
official, such additional functions would fall under the purview of "any other office"
prohibited by the Constitution. An example would be the Press Undersecretary sitting
as a member of the Board of the Philippine Amusement and Gaming Corporation. The
same rule applies to such positions which confer on the cabinet official management
functions and/or monetary compensation, such as but not limited to chairmanships or
directorships in government-owned or controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet
Members, their deputies or assistants which are not inconsistent with those already
prescribed by their offices or appointments by virtue of their special knowledge,
expertise and skill in their respective executive offices is a practice long-recognized in
many jurisdictions. It is a practice justified by the demands of efficiency, policy direction,
continuity and coordination among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and implementing laws affecting
national interest and general welfare and delivering basic services to the people. It is
consistent with the power vested on the President and his alter egos, the Cabinet
members, to have control of all the executive departments, bureaus and offices and to
24
ensure that the laws are faithfully executed. 35 Without these additional duties and
functions being assigned to the President and his official family to sit in the governing
bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity
as provided by law and as required by their primary functions, they would be
supervision, thereby deprived of the means for control and resulting in an unwieldy and
confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not
transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution,
such additional duties or functions must be required by the primary functions of the
official concerned, who is to perform the same in an ex-officio capacity as provided by
law, without receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal
office, it follows that the official concerned has no right to receive additional
compensation for his services in the said position. The reason is that these services
are already paid for and covered by the compensation attached to his principal office.
It should be obvious that if, say, the Secretary of Finance attends a meeting of the
Monetary Board as an ex-officiomember thereof, he is actually and in legal
contemplation performing the primary function of his principal office in defining policy
in monetary and banking matters, which come under the jurisdiction of his department.
For such attendance, therefore, he is not entitled to collect any extra compensation,
whether it be in the form of a per them or an honorarium or an allowance, or some
other such euphemism. By whatever name it is designated, such additional
compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of
Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B, originally
found as Section 3 of the General Provisions, the exception "unless required by the
functions of his position," 36 express reference to certain high-ranking appointive public
officials like members of the Cabinet were made. 37 Responding to a query of
Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances
when although not required by current law, membership of certain high-ranking
executive officials in other offices and corporations is necessary by reason of said
officials' primary functions. The example given by Commissioner Monsod was the
Minister of Trade and Industry. 38
While this exchange between Commissioners Monsod and Ople may be used as
authority for saying that additional functions and duties flowing from the primary
functions of the official may be imposed upon him without offending the constitutional
prohibition under consideration, it cannot, however, be taken as authority for saying
that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy
between the two Commissioners took place in the plenary session of September 27,
1986. Under consideration then was Section 3 of Committee Resolution No. 531 which
was the proposed article on General Provisions. 39 At that time, the article on the Civil
Service Commission had been approved on third reading on July 22, 1986, 40 while the
article on the Executive Department, containing the more specific prohibition in Section
13, had also been earlier approved on third reading on August 26, 1986. 41 It was only
after the draft Constitution had undergone reformatting and "styling" by the Committee
on Style that said Section 3 of the General Provisions became Section 7, par. (2) of
Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions
of his position. . . ."
What was clearly being discussed then were general principles which would serve as
constitutional guidelines in the absence of specific constitutional provisions on the
matter. What was primarily at issue and approved on that occasion was the adoption
of the qualified and delimited phrase "primary functions" as the basis of an exception
to the general rule covering all appointive public officials. Had the Constitutional
Commission intended to dilute the specific prohibition in said Section 13 of Article VII,
it could have re-worded said Section 13 to conform to the wider exceptions provided in
then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2)
of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his official
family is by reason of the legal principles governing additional functions and duties of
public officials rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we
have made it clear that only the additional functions and duties "required," as opposed
to "allowed," by the primary functions may be considered as not constituting "any other
office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail 42 as said
proceedings are powerless to vary the terms of the Constitution when the meaning is
clear.1âwphi1Debates in the constitutional convention "are of value as showing the
views of the individual members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the constitution from what appears upon
its face." 43 The proper interpretation therefore depends more on how it was understood
by the people adopting it than in the framers's understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution
seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies
or assistants from holding during their tenure multiple offices or employment in the
government, except in those cases specified in the Constitution itself and as above
clarified with respect to posts held without additional compensation in an ex-
officio capacity as provided by law and as required by the primary functions of their
25
office, the citation of Cabinet members (then called Ministers) as examples during the herein defined, in the government, including government-owned or controlled
debate and deliberation on the general rule laid down for all appointive officials should corporations and their subsidiaries. With respect to the other named respondents, the
be considered as mere personal opinions which cannot override the constitution's petitions have become moot and academic as they are no longer occupying the
manifest intent and the people' understanding thereof. positions complained of.
In the light of the construction given to Section 13, Article VII in relation to Section 7, During their tenure in the questioned positions, respondents may be considered de
par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, facto officers and as such entitled to emoluments for actual services rendered. 46 It has
1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet been held that "in cases where there is no de jure,officer, a de facto officer, who, in
members, undersecretaries or assistant secretaries may hold in addition to their good faith has had possession of the office and has discharged the duties pertaining
primary position to not more than two (2) positions in the government and government thereto, is legally entitled to the emoluments of the office, and may in an appropriate
corporations, Executive Order No. 284 actually allows them to hold multiple offices or action recover the salary, fees and other compensations attached to the office. This
employment in direct contravention of the express mandate of Section 13, Article VII of doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the
the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the public should benefit by the services of an officer de facto and then be freed from all
1987 Constitution itself. liability to pay any one for such services. 47 Any per diem, allowances or other
The Court is alerted by respondents to the impractical consequences that will result emoluments received by the respondents by virtue of actual services rendered in the
from a strict application of the prohibition mandated under Section 13, Article VII on the questioned positions may therefore be retained by them.
operations of the Government, considering that Cabinet members would be stripped of WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED.
their offices held in an ex-officio capacity, by reason of their primary positions or by Executive Order No. 284 is hereby declared null and void and is accordingly set aside.
virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the SO ORDERED.
executive official concerned without additional compensation as provided by law and
as required by the primary functions of his office do not fall under the definition of "any
other office" within the contemplation of the constitutional prohibition. With respect to
other offices or employment held by virtue of legislation, including chairmanships or
directorships in government-owned or controlled corporations and their subsidiaries,
suffice it to say that the feared impractical consequences are more apparent than real.
Being head of an executive department is no mean job. It is more than a full-time job,
requiring full attention, specialized knowledge, skills and expertise. If maximum
benefits are to be derived from a department head's ability and expertise, he should be
allowed to attend to his duties and responsibilities without the distraction of other
governmental offices or employment. He should be precluded from dissipating his
efforts, attention and energy among too many positions of responsibility, which may
result in haphazardness and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this stage of our
national and economic development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and taking in more than what
he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders
respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr.,
Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V.
Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget
Guillermo Carague to immediately relinquish their other offices or employment, as
26
 G.R. No. 191149
JUDICIAL AND BAR COUNCIL (JBC).
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - -x
ARTURO M. DE CASTRO, G. R. No. 191002 PETER IRVING CORVERA;
Petitioner,
CHRISTIAN ROBERT S. LIM;
- versus -
ALFONSO V. TAN, JR.;
JUDICIAL AND BAR COUNCIL (JBC) and
PRESIDENT GLORIA MACAPAGAL NATIONAL UNION OF PEOPLES
ARROYO, LAWYERS;
Respondents.
x-----------------------x MARLOU B. UBANO;
JAIME N. SORIANO, G.R. No. 191032
Petitioner, INTEGRATED BAR OF THE PHILIPPINES-
DAVAO DEL SUR CHAPTER, represented
- versus - by its Immediate Past President, ATTY.
ISRAELITO P. TORREON, and the latter in
JUDICIAL AND BAR COUNCIL (JBC), his own personal capacity as a MEMBER of
Respondent. the PHILIPPINE BAR;
x-----------------------x
PHILIPPINE CONSTITUTION MITCHELL JOHN L. BOISER;
ASSOCIATION (PHILCONSA), G.R. No. 191057
Petitioner, BAGONG ALYANSANG BAYAN (BAYAN)
CHAIRMAN DR. CAROLINA P. ARAULLO;
- versus - BAYAN SECRETARY GENERAL RENATO
M. REYES, JR.; CONFEDERATION FOR
JUDICIAL AND BAR COUNCIL (JBC), UNITY, RECOGNITION AND ADVANCE-
Respondent. MENT OF GOVERNMENT EMPLOYEES
x-----------------------x (COURAGE) CHAIRMAN FERDINAND
IN RE APPLICABILITY OF SECTION 15, GAITE; KALIPUNAN NG DAMAYANG
ARTICLE VII OF THE CONSTITUTION TO A.M. No. 10-2-5-SC MAHIHIRAP (KADAMAY) SECRETARY
APPOINTMENTS TO THE JUDICIARY, GENERAL GLORIA ARELLANO; ALYANSA
ESTELITO P. MENDOZA, NG NAGKAKAISANG KABATAAN NG
Petitioner, SAMBAYANAN PARA SA KAUNLARAN
x-----------------------x (ANAKBAYAN) CHAIRMAN KEN LEONARD
JOHN G. PERALTA, RAMOS; TAYO ANG PAG-ASA CONVENOR
Petitioner, ALVIN PETERS; LEAGUE OF FILIPINO
- versus - STUDENTS (LFS) CHAIRMAN JAMES
27
MARK TERRY LACUANAN RIDON;
NATIONAL UNION OF STUDENTS OF THE
PHILIPPINES (NUSP) CHAIRMAN G.R. No. 191342
EINSTEIN RECEDES; COLLEGE EDITORS
GUILD OF THE PHILIPPINES (CEGP)
CHAIRMAN VIJAE ALQUISOLA; and - versus -
STUDENT CHRISTIAN MOVEMENT OF THE
PHILIPPINES (SCMP) CHAIRMAN MA.
CRISTINA ANGELA GUEVARRA;

WALDEN F. BELLO and LORETTA ANN P.

ROSALES; JUDICIAL AND BAR COUNCIL and HER
EXCELLENCY GLORIA MACAPAGAL-
WOMEN TRIAL LAWYERS ORGANIZATION ARROYO,
OF THE PHILIPPINES, represented by Respondents. G.R. No. 191420
YOLANDA QUISUMBING-
JAVELLANA; BELLEZA ALOJADO Present:
DEMAISIP; TERESITA GANDIONCO-
OLEDAN; MA. VERENA KASILAG- PUNO, C.J.,
VILLANUEVA; MARILYN STA. ROMANA; CARPIO,
LEONILA DE JESUS; and GUINEVERE CORONA,
DE LEON. CARPIO MORALES,
Intervenors. VELASCO, JR.,
x - - - - - - - - - - - - - - - - - - - - - - - -x NACHURA,
ATTY. AMADOR Z. TOLENTINO, JR., (IBP LEONARDO-DE CASTRO,
GovernorSouthern Luzon), and ATTY. BRION,
ROLAND B. INTING PERALTA,
(IBP GovernorEastern Visayas), BERSAMIN,
Petitioners, DEL CASTILLO,
ABAD,
- versus - VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
JUDICIAL AND BAR COUNCIL (JBC),
Respondent. Promulgated:
x-----------------------x March 17, 2010
PHILIPPINE BAR ASSOCIATION, INC., x-----------------------------------------------------------------------------------------x
Petitioner,
DECISION

28
BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs
just days after the coming presidential elections on May 10, 2010. Even before the
event actually happens, it is giving rise to many legal dilemmas. May the incumbent
President appoint his successor, considering that Section 15, Article VII (Executive
Department) of the Constitution prohibits the President or Acting President from making
appointments within two months immediately before the next presidential elections and
up to the end of his term, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety?
What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the
Constitution, which provides that any vacancy in the Supreme Court shall be filled
within 90 days from the occurrence thereof, to the matter of the appointment of his
successor? May the Judicial and Bar Council (JBC) resume the process of screening
the candidates nominated or being considered to succeed Chief Justice Puno, and
submit the list of nominees to the incumbent President even during the period of the
prohibition under Section 15, Article VII? Doesmandamus lie to compel the submission
of the shortlist of nominees by the JBC?
Precs of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No.
191002[1] and G.R. No. 191149[2] as special civil actions for certiorari andmandamus,
praying that the JBC be compelled to submit to the incumbent President the list of at
least three nominees for the position of the next Chief Justice.
In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition, proposes to
prevent the JBC from conducting its search, selection and nomination proceedings for
the position of Chief Justice.
In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine Constitution
Association (PHILCONSA) wants the JBC to submit its list of nominees for the position
of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17,
2010, because the incumbent President is not covered by the prohibition that applies
only to appointments in the Executive Department.
In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a former
Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether
Section 15, Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the petitions
earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar
of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas,
respectively, want to enjoin and restrain the JBC from submitting a list of nominees for
the position of Chief Justice to the President for appointment during the period provided
for in Section 15, Article VII.
All the petitions now before the Court pose as the principal legal question whether the
incumbent President can appoint the successor of Chief Justice Puno upon his
retirement. That question is undoubtedly impressed with transcendental importance to
the Nation, because the appointment of the Chief Justice is any Presidents most
important appointment.
A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon.
Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court
of Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively (Valenzuela),[7] by which the Court held that Section 15, Article VII
prohibited the exercise by the President of the power to appoint to judicial positions
during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue
expressed by legal luminaries one side holds that the incumbent President is prohibited
from making appointments within two months immediately before the coming
presidential elections and until the end of her term of office as President on June 30,
2010, while the other insists that the prohibition applies only to appointments to
executive positions that may influence the election and, anyway, paramount national
interest justifies the appointment of a Chief Justice during the election ban has impelled
the JBC to defer the decision to whom to send its list of at least three nominees,
whether to the incumbent President or to her successor.[8] He opines that the JBC is
thereby arrogating unto itself the judicial function that is not conferred upon it by the
Constitution, which has limited it to the task of recommending appointees to the
Judiciary, but has not empowered it to finally resolve constitutional questions, which is
the power vested only in the Supreme Court under the Constitution. As such, he
contends that the JBC acted with grave abuse of discretion in deferring the submission
of the list of nominees to the President; and that a final and definitive resolution of the
constitutional questions raised above would diffuse (sic) the tension in the legal
community that would go a long way to keep and maintain stability in the judiciary and
the political system.[9]
29
In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of
discretion amounting to lack or excess of its jurisdiction when it resolved unanimously
on January 18, 2010 to open the search, nomination, and selection process for the
position of Chief Justice to succeed Chief Justice Puno, because the appointing
authority for the position of Chief Justice is the Supreme Court itself, the Presidents
authority being limited to the appointment of the Members of the Supreme Court.
Hence, the JBC should not intervene in the process, unless a nominee is not yet a
Member of the Supreme Court.[10]
For its part, PHILCONSA observes in its petition in G.R. No. 191057 that unorthodox
and exceptional circumstances spawned by the discordant interpretations, due
perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1),
8(5) and 9, Art. VIII of the Constitution have bred a frenzied inflammatory legal debate
on the constitutional provisions mentioned that has divided the bench and the bar and
the general public as well, because of its dimensional impact to the nation and the
people, thereby fashioning transcendental questions or issues affecting the JBCs
proper exercise of its principal function of recommending appointees to the Judiciary
by submitting only to the President (not to the next President) a list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy from which the
members of the Supreme Court and judges of the lower courts may be
appointed.[11] PHILCONSA further believes and submits that now is the time to revisit
and review Valenzuela, the strange and exotic Decision of the Court en banc.[12]
Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC
to immediately transmit to the President, within a reasonable time, its nomination list
for the position of chief justice upon the mandatory retirement of Chief Justice Reynato
S. Puno, in compliance with its mandated duty under the Constitution in the event that
the Court resolves that the President can appoint a Chief Justice even during the
election ban under Section 15, Article VII of the Constitution.[13]
The petitioners in G.R. No. 191342 insist that there is an actual controversy,
considering that the JBC has initiated the process of receiving applications for the
position of Chief Justice and has in fact begun the evaluation process for the
applications to the position, and is perilously near completing the nomination process
and coming up with a list of nominees for submission to the President, entering into the
period of the ban on midnight appointments on March 10, 2010, which only highlights
the pressing and compelling need for a writ of prohibition to enjoin such alleged
ministerial function of submitting the list, especially if it will be cone within the period of
the ban on midnight appointments.[14]
Antecedents
These cases trace their genesis to the controversy that has arisen from the forthcoming
compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the
presidential election. Under Section 4(1), in relation to Section 9, Article
VIII, that vacancy shall be filled within ninety days from the occurrence thereof from a
list of at least three nominees prepared by the Judicial and Bar Council for every
vacancy.
On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of
the JBC, addressed a letter to the JBC, requesting that the process for nominations to
the office of the Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC passed a
resolution,[15] which reads:
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the
process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon
the retirement of the incumbent Chief Justice Honorable Reynato S. Puno.
It will publish the opening of the position for applications or recommendations;
deliberate on the list of candidates; publish the names of candidates; accept comments
on or opposition to the applications; conduct public interviews of candidates; and
prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in the light of
the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider
all views on the matter.
18 January 2010.
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
30
As a result, the JBC opened the position of Chief Justice for application or
recommendation, and published for that purpose its announcement dated January 20,
2010,[16] viz:
The Judicial and Bar Council (JBC) announces the opening for application or
recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT,
which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief
Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be submitted not later than 4
February 2010 (Thursday) to the JBC Secretariat xxx:
The announcement was published on January 20, 2010 in the Philippine Daily
Inquirer and The Philippine Star.[17]
Conformably with its existing practice, the JBC automatically considered for the
position of Chief Justice the five most senior of the Associate Justices of the Court,
namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona;
Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco,
Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined
their nomination through letters dated January 18, 2010 and January 25, 2010,
respectively.[18]
Others either applied or were nominated. Victor Fernandez, the retired Deputy
Ombudsman for Luzon, applied, but later formally withdrew his name from
consideration through his letter dated February 8, 2010. Candidates who accepted
their nominations without conditions were Associate Justice Renato C. Corona;
Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion;
and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who
accepted their nominations with conditions were Associate Justice Antonio T. Carpio
and Associate Justice Conchita Carpio Morales.[19] Declining their nominations were
Atty. Henry Villarica (via telephone conversation with the Executive Officer of the JBC
on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation
with the Executive Officer of the JBC onFebruary 8, 2010).[20]
The JBC excluded from consideration former RTC Judge Florentino Floro (for failure
to meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-
Ignacio of the Office of the Ombudsman (due to cases pending in the Office of the
Ombudsman).[21]
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of
announcing the names of the following candidates to invite the public to file their sworn
complaint, written report, or opposition, if any, not later than February 22, 2010, to wit:
Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales,
Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice
Sandoval. The announcement came out in the Philippine Daily Inquirer and The
Philippine Star issues of February 13, 2010.[22]
Issues
Although it has already begun the process for the filling of the position of Chief Justice
Puno in accordance with its rules, the JBC is not yet decided on when to submit to the
President its list of nominees for the position due to the controversy now before us
being yet unresolved. In the meanwhile, time is marching in quick step towards May
17, 2010 when the vacancy occurs upon the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal
luminaries, but also among non-legal quarters, and brought out highly disparate
opinions on whether the incumbent President can appoint the next Chief Justice or
not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments of
two judges of the Regional Trial Court, the Court addressed this issue now before us
as an administrative matter to avoid any possible polemics concerning the matter, but
he opines that the polemics leading to Valenzuela would be miniscule [sic] compared
to the polemics that have now erupted in regard to the current controversy, and that
unless put to a halt, and this may only be achieved by a ruling from the Court, the
integrity of the process and the credibility of whoever is appointed to the position of
Chief Justice, may irreparably be impaired.[23]
Accordingly, we reframe the issues as submitted by each petitioner in the order of the
chronological filing of their petitions.
G.R. No. 191002
a. Does the JBC have the power and authority to resolve the constitutional question of
whether the incumbent President can appoint a Chief Justice during the election ban
period?
31
b. Does the incumbent President have the power and authority to appoint during the
election ban the successor of Chief Justice Puno when he vacates the position of Chief
Justice on his retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc?
G.R. No. 191057
a. Is the constitutional prohibition against appointment under Section 15, Article VII of
the Constitution applicable only to positions in the Executive Department?
b. Assuming that the prohibition under Section 15, Article VII of the Constitution also
applies to members of the Judiciary, may such appointments be excepted because
they are impressed with public interest or are demanded by the exigencies of public
service, thereby justifying these appointments during the period of prohibition?
c. Does the JBC have the authority to decide whether or not to include and submit the
names of nominees who manifested interest to be nominated for the position of Chief
Justice on the understanding that his/her nomination will be submitted to
the next President in view of the prohibition against presidential appointments from
March 11, 2010 until June 30, 2010?
A. M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution apply to appointments to positions in
the Judiciary under Section 9, Article VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary
after March 10, 2010, including that for the position of Chief Justice after Chief Justice
Puno retires on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the submission of the short list to
President Gloria Macapagal-Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of nominees to the incumbent
President without committing a grave violation of the Constitution and jurisprudence
prohibiting the incumbent President from making midnight appointments two months
immediately preceding the next presidential elections until the end of her term?
b. Is any act performed by the JBC, including the vetting of the candidates for the
position of Chief Justice, constitutionally invalid in view of the JBCs illegal composition
allowing each member from the Senate and the House of Representatives to have one
vote each?
On February 16, 2010, the Court directed the JBC and the Office of the Solicitor
General (OSG) to comment on the consolidated petitions, except that filed in G.R. No.
191342.
On February 26, 2010, the JBC submitted its comment, reporting therein that the next
stage of the process for the selection of the nominees for the position of Chief Justice
would be the public interview of the candidates and the preparation of the short list of
candidates, including the interview of the constitutional experts, as may be needed.[24] It
stated:[25]
Likewise, the JBC has yet to take a position on when to submit the shortlist to
the proper appointing authority, in light of Section 4 (1), Article VIII of the
Constitution, which provides that vacancy in the Supreme Court shall be filled
within ninety (90) days from the occurrence thereof, Section 15, Article VII of the
Constitution concerning the ban on Presidential appointments two (2) months
immediately before the next presidential elections and up to the end of his term
and Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the
JBC will be guided by its decision in these consolidated Petitions and Administrative
Matter.
On February 26, 2010, the OSG also submitted its comment, essentially stating that
the incumbent President can appoint the successor of Chief Justice Puno upon his
retirement by May 17, 2010.
32
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from
performing its principal function under the Constitution to recommend appointees in the
Judiciary; (b) the JBCs function to recommend is a continuing process, which does not
begin with each vacancy or end with each nomination, because the goal is to submit
the list of nominees to Malacaang on the very day the vacancy arises;[26] the JBC was
thus acting within its jurisdiction when it commenced and set in motion the process of
selecting the nominees to be submitted to the President for the position of Chief Justice
to be vacated by Chief Justice Puno;[27] (c) petitioner Sorianos theory that it is the
Supreme Court, not the President, who has the power to appoint the Chief Justice, is
incorrect, and proceeds from his misinterpretation of the phrase members of the
Supreme Court found in Section 9, Article VIII of the Constitution as referring only to
the Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ
of mandamus can issue to compel the JBC to submit the list of nominees to the
President, considering that its duty to prepare the list of at least three nominees is
unqualified, and the submission of the list is a ministerial act that the JBC is mandated
to perform under the Constitution; as such, the JBC, the nature of whose principal
function is executive, is not vested with the power to resolve who has the authority to
appoint the next Chief Justice and, therefore, has no discretion to withhold the list from
the President; [29] and (e) a writ of mandamus cannot issue to compel the JBC to
include or exclude particular candidates as nominees, considering that there is no
imperative duty on its part to include in or exclude from the list particular individuals,
but, on the contrary, the JBCs determination of who it nominates to the President is an
exercise of a discretionary duty.[30]
The OSG contends that the incumbent President may appoint the next Chief Justice,
because the prohibition under Section 15, Article VII of the Constitution does not apply
to appointments in the Supreme Court. It argues that any vacancy in the Supreme
Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article
VIII of the Constitution; [31] that in their deliberations on the mandatory period for the
appointment of Supreme Court Justices, the framers neither mentioned nor referred to
the ban against midnight appointments, or its effects on such period, or vice
versa;[32] that had the framers intended the prohibition to apply to Supreme Court
appointments, they could have easily expressly stated so in the Constitution, which
explains why the prohibition found in Article VII (Executive Department) was not written
in Article VIII (Judicial Department); and that the framers also incorporated in Article
VIII ample restrictions or limitations on the Presidents power to appoint members of the
Supreme Court to ensure its independence from political vicissitudes and its insulation
from political pressures,[33] such as stringent qualifications for the positions, the
establishment of the JBC, the specified period within which the President shall appoint
a Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment of RTC Judges,
the situation now refers to the appointment of the next Chief Justice to which the
prohibition does not apply; that, at any rate, Valenzuela even recognized that there
might be the imperative need for an appointment during the period of the ban, like when
the membership of the Supreme Court should be so reduced that it will have no
quorum, or should the voting on a particular important question requiring expeditious
resolution be divided;[34] and that Valenzuela also recognized that the filling of
vacancies in the Judiciary is undoubtedly in the public interest, most especially if there
is any compelling reason to justify the making of the appointments during the period of
the prohibition.[35]
Lastly, the OSG urges that there are now undeniably compelling reasons for the
incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases
involving sensitive political issues is quite expected;[36] (b) the Court acts as the
Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all
contests relating to the election, returns, and qualifications of the President and Vice
President and, as such, has the power to correct manifest errors on the statement of
votes (SOV) and certificates of canvass (COC);[37] (c) if history has shown that
during ordinary times the Chief Justice was appointed immediately upon the
occurrence of the vacancy, from the time of the effectivity of the Constitution, there is
now even more reason to appoint the next Chief Justice immediately upon the
retirement of Chief Justice Puno;[38] and (d) should the next Chief Justice come from
among the incumbent Associate Justices of the Supreme Court, thereby causing a
vacancy, it also becomes incumbent upon the JBC to start the selection process for
the filling up of the vacancy in accordance with the constitutional mandate.[39]
On March 9, 2010, the Court admitted the following comments/oppositions-in-
intervention, to wit:
(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving
Corvera (Corvera);[40]
(b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S.
Lim (Lim);
(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr.
(Tan);
33
(d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union
of Peoples Lawyers (NUPL);
(e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano
(Ubano);
(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the
Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P.
Torreon (IBP- Davao del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L.
Boiser (Boiser);
(h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of
BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M.
Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government
Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang
Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang
Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard
Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS)
Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the
Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the
Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the
Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);
(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta
Ann P. Rosales (Bello et al.); and
(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the
Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty.
Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita
Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana;
Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take
the position that De Castros petition was bereft of any basis, because under Section
15, Article VII, the outgoing President is constitutionally banned from making any
appointments from March 10, 2010 until June 30, 2010, including the appointment of
the successor of Chief Justice Puno. Hence, mandamus does not lie to compel the
JBC to submit the list of nominees to the outgoing President if the constitutional
prohibition is already in effect. Tan adds that the prohibition against midnight
appointments was applied by the Court to the appointments to the Judiciary made by
then President Ramos, with the Court holding that the duty of the President to fill the
vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or
from the submission of the list (for all other courts) was not an excuse to violate the
constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose
the insistence that Valenzuela recognizes the possibility that the President may appoint
the next Chief Justice if exigent circumstances warrant the appointment, because that
recognition is obiter dictum; and aver that the absence of a Chief Justice or even an
Associate Justice does not cause epic damage or absolute disruption or paralysis in
the operations of the Judiciary. They insist that even without the successor of Chief
Justice Puno being appointed by the incumbent President, the Court is allowed to sit
and adjudge en banc or in divisions of three, five or seven members at its discretion;
that a full membership of the Court is not necessary; that petitioner De Castros fears
are unfounded and baseless, being based on a mere possibility, the occurrence of
which is entirely unsure; that it is not in the national interest to have a Chief Justice
whose appointment is unconstitutional and, therefore, void; and that such a situation
will create a crisis in the judicial system and will worsen an already vulnerable political
situation.
ice is imperative for the stability of the judicial system and the political situation in the
country when the election-related questions reach the Court as false, because there is
an existing law on filling the void brought about by a vacancy in the office of Chief
Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been
repealed by Batas Pambansa Blg. 129 or any other law; that a temporaryor
an acting Chief Justice is not anathema to judicial independence; that the designation
of an acting Chief Justice is not only provided for by law, but is also dictated by practical
necessity; that the practicewas intended to be enshrined in the 1987 Constitution, but
the Commissioners decided not to write it in the Constitution on account of the settled
practice; that the practice was followed under the 1987 Constitution, when, in 1992, at
the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres
Narvasa assumed the position as Acting Chief Justice prior to his official appointment
as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was
acknowledged and even used by analogy in the case of the vacancy of the Chairman
of the Commission on Elections, perBrillantes v. Yorac, 192 SCRA 358; and that the
history of the Supreme Court has shown that this rule of succession has been
repeatedly observed and has become a part of its tradition.
34

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus
Election Code penalizes as an election offense the act of any government official who
appoints, promotes, or gives any increase in salary or remuneration or privilege to any
government official or employee during the period of 45 days before a regular election;
that the provision covers all appointing heads, officials, and officers of a government
office, agency or instrumentality, including the President; that for the incumbent
President to appoint the next Chief Justice upon the retirement of Chief Justice Puno,
or during the period of the ban under the Omnibus Election Code, constitutes an
election offense; that even an appointment of the next Chief Justice prior to the election
ban is fundamentally invalid and without effect because there can be no appointment
until a vacancy occurs; and that the vacancy for the position can occur only by May 17,
2010.
Intervenor Boiser adds that De Castros prayer to compel the submission of nominees
by the JBC to the incumbent President is off-tangent because the position of Chief
Justice is still not vacant; that to speak of a list, much more a submission of such list,
before a vacancy occurs is glaringly premature; that the proposed advance
appointment by the incumbent President of the next Chief Justice will be
unconstitutional; and that no list of nominees can be submitted by the JBC if there is
no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no distinction
between the kinds of appointments made by the President; and that the Court,
inValenzuela, ruled that the appointments by the President of the two judges during the
prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not
apply only to the appointments in the Executive Department, but also to judicial
appointments, contrary to the submission of PHILCONSA; that Section 15 does not
distinguish; and that Valenzuela already interpreted the prohibition as applicable to
judicial appointments.
Intervenor WTLOP further posits that petitioner Sorianos contention that the power to
appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is
utterly baseless, because the Chief Justice is also a Member of the Supreme Court as
contemplated under Section 9, Article VIII; and that, at any rate, the term members was
interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the
Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSAs
prayer that the Court pass a resolution declaring that persons who manifest their
interest as nominees, but with conditions, shall not be considered nominees by the JBC
is diametrically opposed to the arguments in the body of its petition; that such glaring
inconsistency between the allegations in the body and the relief prayed for highlights
the lack of merit of PHILCONSAs petition; that the role of the JBC cannot be separated
from the constitutional prohibition on the President; and that the Court must direct the
JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly
elected President after the period of the constitutional ban against midnight
appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC because it is neither a judicial nor a
quasi-judicial body has no duty under the Constitution to resolve the question of
whether the incumbent President can appoint a Chief Justice during the period of
prohibition; that even if the JBC has already come up with a short list, it still has to bow
to the strict limitations under Section 15, Article VII; that should the JBC defer
submission of the list, it is not arrogating unto itself a judicial function, but simply
respecting the clear mandate of the Constitution; and that the application of the general
rule in Section 15, Article VII to the Judiciary does not violate the principle of separation
of powers, because said provision is an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of
nominating appointees to the Supreme Court is purely ministerial and does not involve
the exercise of judgment; that there can be no default on the part of the JBC in
submitting the list of nominees to the President, considering that the call for applications
only begins from the occurrence of the vacancy in the Supreme Court; and that the
commencement of the process of screening of applicants to fill the vacancy in the office
of the Chief Justice only begins from the retirement on May 17, 2010, for, prior to this
date, there is no definite legal basis for any party to claim that the submission or non-
submission of the list of nominees to the President by the JBC is a matter of right under
law.
The main question presented in all the filings herein because it involves two seemingly
conflicting provisions of the Constitution imperatively demands the attention and
resolution of this Court, the only authority that can resolve the question definitively and
finally. The imperative demand rests on the ever-present need, first, to safeguard the
independence, reputation, and integrity of the entire Judiciary, particularly this Court,
an institution that has been unnecessarily dragged into the harsh polemics brought on
by the controversy; second, to settle once and for all the doubt about an outgoing
Presidents power to appoint to the Judiciary within the long period starting two months
before the presidential elections until the end of the presidential term; and third, to set
a definite guideline for the JBC to follow in the discharge of its primary office of
screening and nominating qualified persons for appointment to the Judiciary.
35
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners have locus standi.
Black defines locus standi as a right of appearance in a court of justice on a given
question.[41] In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present need to
regulate the invocation of the intervention of the Court to correct any official action or
policy in order to avoid obstructing the efficient functioning of public officials and offices
involved in public service. It is required, therefore, that the petitioner must have a
personal stake in the outcome of the controversy, for, as indicated in Agan, Jr.
v. Philippine International Air Terminals Co., Inc.:[42]
The question on legal standing is whether such parties have alleged such a
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions.[43] Accordingly, it has been held that the interest of a person assailing
the constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite way.
It must appear that the person complaining has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act
complained of.[44]
It is true that as early as in 1937, in People v. Vera,[45] the Court adopted the direct
injury test for determining whether a petitioner in a public action had locus
standi.There, the Court held that the person who would assail the validity of a statute
must have a personal and substantial interest in the case such that he has sustained,
or will sustain direct injury as a result. Vera was followed in Custodio v. President of
the Senate,[46] Manila Race Horse Trainers Association v. De la Fuente,[47] Anti-
Chinese League of the Philippines v. Felix,[48] and Pascual v. Secretary of Public
Works.[49]
Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its discretion. For
instance, in 1949, in Araneta v. Dinglasan,[50] the Court liberalized the approach when
the cases had transcendental importance. Some notable controversies
whose petitioners did not pass the direct injury test were allowed to be treated in the
same way as in Araneta v. Dinglasan.[51]
In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to
resolve the issues raised by the petition due to their far-reaching implications, even if
the petitioner had no personality to file the suit. The liberal approach of Aquino v.
Commission on Elections has been adopted in
several notable cases, permitting ordinary citizens,legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws,
regulations, and rulings.[53]
However, the assertion of a public right as a predicate for challenging a supposedly
illegal or unconstitutional executive or legislative action rests on the theory that the
petitioner represents the public in general. Although such petitioner may not be as
adversely affected by the action complained against as are others, it is enough that he
sufficiently demonstrates in his petition that he is entitled to protection or relief from the
Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to
gain locus standi. That is not surprising, for even if the issue may appear to concern
only the public in general, such capacities nonetheless equip the petitioner with
adequate interest to sue. In David v. Macapagal-Arroyo,[54] the Court aptly explains
why:
Case law in most jurisdictions now allows both citizen and taxpayer standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,[55] where it was held
that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens
suit. In the former, the plaintiff is affected by the expenditure of public funds,
while in the latter, he is but the mere instrument of the public concern. As held by
the New York Supreme Court in People ex rel Case v. Collins:[56] In matter of mere
public right, howeverthe people are the real partiesIt is at least the right, if not
the duty, of every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied. With respect to
taxpayers suits, Terr v. Jordan[57] held that the right of a citizen and a taxpayer to
36
maintain an action in courts to restrain the unlawful use of public funds to his
injury cannot be denied.[58]
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R.
No. 191149) all assert their right as citizens filing their petitions on behalf of the public
who are directly affected by the issue of the appointment of the next Chief Justice. De
Castro and Soriano further claim standing as taxpayers, with Soriano averring that he
is affected by the continuing proceedings in the JBC, which involve unnecessary, if not,
illegal disbursement of public funds.[59]
PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the
law for the purpose of defending, protecting, and preserving the Constitution and
promoting its growth and flowering. It also alleges that the Court has recognized its
legal standing to file cases on constitutional issues in several cases.[60]
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member
of the Philippine Bar engaged in the active practice of law, and a former Solicitor
General, former Minister of Justice, former Member of the Interim Batasang Pambansa
and the Regular Batasang Pambansa, and former member of the Faculty of the College
of Law of the University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the
Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have
the legal standing to enjoin the submission of the list of nominees by the JBC to the
President, for [a]n adjudication of the proper interpretation and application of the
constitutional ban on midnight appointments with regard to respondent JBCs function
in submitting the list of nominees is well within the concern of petitioners, who are duty
bound to ensure that obedience and respect for the Constitution is upheld, most
especially by government offices, such as respondent JBC, who are specifically tasked
to perform crucial functions in the whole scheme of our democratic institution. They
further allege that, reposed in them as members of the Bar, is a clear legal interest in
the process of selecting the members of the Supreme Court, and in the selection of the
Chief Justice, considering that the person appointed becomes a member of the body
that has constitutional supervision and authority over them and other members of the
legal profession.[61]
The Court rules that the petitioners have each demonstrated adequate interest in the
outcome of the controversy as to vest them with the requisite locus standi. The issues
before us are of transcendental importance to the people as a whole, and to the
petitioners in particular. Indeed, the issues affect everyone (including the petitioners),
regardless of ones personal interest in life, because they concern that great doubt
about the authority of the incumbent President to appoint not only the successor of the
retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which
already suffers from a far too great number of vacancies in the ranks of trial judges
throughout the country.
In any event, the Court retains the broad discretion to waive the requirement of legal
standing in favor of any petitioner when the matter involved has transcendental
importance, or otherwise requires a liberalization of the requirement.[62]
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt
now in order to remove any obstacle or obstruction to the resolution of the essential
issue squarely presented herein. We are not to shirk from discharging our solemn duty
by reason alone of an obstacle more technical than otherwise. In Agan, Jr. v.Philippine
International Air Terminals Co., Inc.,[63] we pointed out: Standing is a peculiar concept
in constitutional law because in some cases, suits are not brought by parties who have
been personally injured by the operation of a law or any other government act but by
concerned citizens, taxpayers or voters who actually sue in the public interest. But even
if, strictly speaking, the petitioners are not covered by the definition, it is still within the
wide discretion of the Court to waive the requirement and so remove the impediment
to its addressing and resolving the serious constitutional questions raised.[64]
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is
appropriate or ripe for adjudication, considering that although the selection process
commenced by the JBC is going on, there is yet no final list of nominees; hence, there
is no imminent controversy as to whether such list must be submitted to the incumbent
President, or reserved for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for
judicial determination, pointing out that petitioner De Castro has not even shown that
the JBC has already completed its selection process and is now ready to submit the
list to the incumbent President; and that petitioner De Castro is merely presenting a
hypothetical scenario that is clearly not sufficient for the Court to exercise its power of
judicial review.
Intervenors Corvera and Lim separately opine that De Castros petition rests on an
overbroad and vague allegation of political tension, which is insufficient basis for the
Court to exercise its power of judicial review.
37

Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory
opinion on what the JBC and the President should do, and are not invoking any issues
that are justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion
of opposite legal claims in any of the petitions; that PHILCONSA does not allege any
action taken by the JBC, but simply avers that the conditional manifestations of two
Members of the Court, accented by the divided opinions and interpretations of legal
experts, or associations of lawyers and law students on the issues published in the
daily newspapers are matters of paramount and transcendental importance to the
bench, bar and general public; that PHILCONSA fails not only to cite any legal duty or
allege any failure to perform the duty, but also to indicate what specific action should
be done by the JBC; that Mendoza does not even attempt to portray the matter as a
controversy or conflict of rights, but, instead, prays that the Court should rule for the
guidance of the JBC; that the fact that the Court supervises the JBC does not
automatically imply that the Court can rule on the issues presented in the Mendoza
petition, because supervision involves oversight, which means that the subordinate
officer or body must first act, and if such action is not in accordance with prescribed
rules, then, and only then, may the person exercising oversight order the action to be
redone to conform to the prescribed rules; that the Mendoza petition does not allege
that the JBC has performed a specific act susceptible to correction for being illegal or
unconstitutional; and that the Mendoza petition asks the Court to issue an advisory
ruling, not to exercise its power of supervision to correct a wrong act by the JBC, but
to declare the state of the law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy that is ripe for judicial
determination. The reality is that the JBC already commenced the proceedings for the
selection of the nominees to be included in a short list to be submitted to the President
for consideration of which of them will succeed Chief Justice Puno as the next Chief
Justice. Although the position is not yet vacant, the fact that the JBC began the process
of nomination pursuant to its rules and practices, although it has yet to decide whether
to submit the list of nominees to the incumbent outgoing President or to the next
President, makes the situation ripe for judicial determination, because the next steps
are the public interview of the candidates, the preparation of the short list of candidates,
and the interview of constitutional experts, as may be needed.
A part of the question to be reviewed by the Court is whether the JBC properly initiated
the process, there being an insistence from some of the oppositors-intervenors that the
JBC could only do so once the vacancy has occurred (that is, after May 17, 2010).
Another part is, of course, whether the JBC may resume its process until the short list
is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly
requires the President to appoint one from the short list to fill the vacancy in the
Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the
occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not be doubted. The
challenges to the authority of the JBC to open the process of nomination and to
continue the process until the submission of the list of nominees; the insistence of some
of the petitioners to compel the JBC through mandamus to submit the short list to the
incumbent President; the counter-insistence of the intervenors to prohibit the JBC from
submitting the short list to the incumbent President on the ground that said list should
be submitted instead to the next President; the strong position that the incumbent
President is already prohibited under Section 15, Article VII from making any
appointments, including those to the Judiciary, starting on May 10, 2010 until June 30,
2010; and the contrary position that the incumbent President is not so prohibited are
only some of the real issues for determination. All such issues establish the ripeness
of the controversy, considering that for some the short list must be submitted before the
vacancy actually occurs byMay 17, 2010. The outcome will not be an abstraction, or a
merely hypothetical exercise. The resolution of the controversy will surely settle with
finality the nagging questions that are preventing the JBC from moving on with the
process that it already began, or that are reasons persuading the JBC to desist from
the rest of the process.
We need not await the occurrence of the vacancy by May 17, 2010 in order for the
principal issue to ripe for judicial determination by the Court. It is enough that one
alleges conduct arguably affected with a constitutional interest, but seemingly
proscribed by the Constitution. A reasonable certainty of the occurrence of the
perceived threat to a constitutional interest is sufficient to afford a basis for bringing a
challenge, provided the Court has sufficient facts before it to enable it to intelligently
adjudicate the issues.[65]Herein, the facts are not in doubt, for only legal issues remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary
38
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential elections and up to
the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three, five, or
seven Members. Any vacancy shall be filled within ninety days from the occurrence
thereof.
In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino
and Inting, submit that the incumbent President can appoint the successor of Chief
Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition
against presidential appointments under Section 15, Article VII does not extend to
appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional Commission reveal that the
framers devoted time to meticulously drafting, styling, and arranging the Constitution.
Such meticulousness indicates that the organization and arrangement of the provisions
of the Constitution were not arbitrarily or whimsically done by the framers, but purposely
made to reflect their intention and manifest their vision of what the Constitution should
contain.
The Constitution consists of 18 Articles, three of which embody the allocation of the
awesome powers of government among the three great departments, the Legislative
(Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The
arrangement was a true recognition of the principle of separation of powers that
underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna
(later a worthy member of the Court) explained in his sponsorship speech:
We have in the political part of this Constitution opted for the separation of powers in
government because we believe that the only way to protect freedom and liberty is to
separate and divide the awesome powers of government. Hence, we return to the
separation of powers doctrine and the legislative, executive and judicial
departments.[66]
As can be seen, Article VII is devoted to the Executive Department, and, among others,
it lists the powers vested by the Constitution in the President. The presidential power
of appointment is dealt with in Sections 14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the duties and
qualifications of Members of the Supreme Court, among others. Section 4(1) and
Section 9 of this Article are the provisions specifically providing for the appointment of
Supreme Court Justices. In particular, Section 9 states that the appointment of
Supreme Court Justices can only be made by the President upon the submission of a
list of at least three nominees by the JBC; Section 4(1) of the Article mandates the
President to fill the vacancy within 90 days from the occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in Section 15, Article VII
to the appointment of Members of the Supreme Court, they could have explicitly done
so. They could not have ignored the meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in Section 15, Article VII as
being equally applicable to the appointment of Members of the Supreme Court in Article
VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done
only reveals that the prohibition against the President or Acting President making
appointments within two months before the next presidential elections and up to the
end of the Presidents or Acting Presidents term does not refer to the Members of the
Supreme Court.
Although Valenzuela[67] came to hold that the prohibition covered even judicial
appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on
the deliberations of the Constitutional Commission. Thereby, the confirmation made to
the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former
member of the Constitutional Commission, about the prohibition not being intended to
apply to the appointments to the Judiciary, which confirmation Valenzuela even
expressly mentioned, should prevail.
39

Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section
4 (1), Article VIII, viz:
V . Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution discloses that
the original proposal was to have an eleven-member Supreme Court. Commissioner
Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to
ensure that that number would not be reduced for any appreciable length of time (even
only temporarily), and to this end proposed that any vacancy must be filled within two
months from the date that the vacancy occurs. His proposal to have a 15-member
Court was not initially adopted. Persisting however in his desire to make certain that
the size of the Court would not be decreased for any substantial period as a result of
vacancies, Lerum proposed the insertion in the provision (anent the Courts
membership) of the same mandate that IN CASE OF ANY VACANCY, THE SAME
SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF. He
later agreed to suggestions to make the period three, instead of two, months. As thus
amended, the proposal was approved. As it turned out, however, the Commission
ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the
composition of the Supreme Court came to include a command to fill up any
vacancy therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that any vacancy shall
be filled within ninety days (in the last sentence of Section 4 (1) of Article VIII) contrasts
with the prohibition in Section 15, Article VII, which is couched in stronger negative
language - that a President or Acting President shall not make appointments
The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now
a Member of this Court) to add to what is now Section 9 of Article VIII, the following
paragraph: WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE
THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE
LIST (of nominees by the Judicial and Bar Council to the President). Davide stated that
his purpose was to provide a uniform rule for lower courts. According to him, the 90-
day period should be counted from submission of the list of nominees to the President
in view of the possibility that the President might reject the list submitted to him and the
JBC thus need more time to submit a new one.
On the other hand, Section 15, Article VII - which in effect deprives the President of his
appointing power two months immediately before the next presidential elections up to
the end ofhis term - was approved without discussion.[68]
However, the reference to the records of the Constitutional Commission did not
advance or support the result in Valenzuela. Far to the contrary, the records disclosed
the express intent of the framers to enshrine in the Constitution, upon the initiative
of Commissioner Eulogio Lerum, a command [to the President] to fill up any vacancy
therein within 90 days from its occurrence, which even Valenzuela conceded.[69] The
exchanges during deliberations of the Constitutional Commission on October 8,
1986 further show that the filling of a vacancy in the Supreme Court within the 90-day
period was a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the Supreme Court, together
with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection reads: Any
vacancy shall be filled within ninety days from the occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30
years, seldom has the Court had a complete complement.[70]
Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative,
operating to impose a duty that may be enforced[71] should not be disregarded.
Thereby, Sections 4(1) imposes on the President the imperative duty to make an
appointment of a Member of the Supreme Court within 90 days from the occurrence of
the vacancy. The failure by the President to do so will be a clear disobedience to the
Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the
vacancy in the Supreme Court was undoubtedly a special provision to establish
adefinite mandate for the President as the appointing power, and cannot be defeated
by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII
prevailed because it was couched in stronger negative language. Such interpretation
even turned out to be conjectural, in light of the records of the Constitutional
Commissions deliberations on Section 4 (1), Article VIII.
40

How Valenzuela justified its pronouncement and result is hardly warranted. According
to an authority on statutory construction:[72]
xxx the court should seek to avoid any conflict in the provisions of the statute by
endeavoring to harmonize and reconcile every part so that each shall be effective. It is
not easy to draft a statute, or any other writing for that matter, which may not in some
manner contain conflicting provisions. But what appears to the reader to be a conflict
may not have seemed so to the drafter. Undoubtedly, each provision was inserted for
a definite reason. Often by considering the enactment in its entirety, what appears to
be on its face a conflict may be cleared up and the provisions reconciled.
Consequently, that construction which will leave every word operative will be favored
over one which leaves some word or provision meaningless because of inconsistency.
But a word should not be given effect, if to do so gives the statute a meaning contrary
to the intent of the legislature. On the other hand, if full effect cannot be given to the
words of a statute, they must be made effective as far as possible. Nor should the
provisions of a statute which are inconsistent be harmonized at a sacrifice of the
legislative intention. It may be that two provisions are irreconcilable; if so, the one which
expresses the intent of the law-makers should control. And the arbitrary rule has been
frequently announced that where there is an irreconcilable conflict between the
different provisions of a statute, the provision last in order of position will prevail, since
it is the latest expression of the legislative will. Obviously, the rule is subject to deserved
criticism. It is seldom applied, and probably then only where an irreconcilable conflict
exists between different sections of the same act, and after all other means of
ascertaining the meaning of the legislature have been exhausted. Where the conflict is
between two statutes, more may be said in favor of the rules application, largely
because of the principle of implied repeal.
In this connection, PHILCONSAs urging of a revisit and a review of Valenzuela is timely
and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional
Commission to have Section 4 (1), Article VIII stand independently of any other
provision, least of all one found in Article VII. It further ignored that the two provisions
had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the
negative. As judges, we are not to unduly interpret, and should not accept an
interpretation that defeats the intent of the framers.[73]
Consequently, prohibiting the incumbent President from appointing a Chief Justice on
the premise that Section 15, Article VII extends to appointments in the Judiciary cannot
be sustained. A misinterpretation like Valenzuela should not be allowed to last after its
false premises have been exposed.[74] It will not do to merely
distinguish Valenzuela from these cases, for the result to be reached herein is entirely
incompatible with what Valenzuela decreed. Consequently, Valenzuela now deserves
to be quickly sent to the dustbin of the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other appointments in the
Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as
part of Article VII was to eliminate midnight appointments from being made by
anoutgoing Chief Executive in the mold of the appointments dealt with in the leading
case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed, stating that:
xxx it appears that Section 15, Article VII is directed against two types of appointments:
(1) those made for buying votes and (2) those made for partisan considerations. The
first refers to those appointments made within the two months preceding a Presidential
election and are similar to those which are declared election offenses in the Omnibus
Election Code, viz.:
xxx
The second type of appointments prohibited by Section 15, Article VII consists of the
so-called midnight appointments. In Aytona v. Castillo, it was held that after the
proclamation of Diosdado Macapagal as duly elected President, President Carlos P.
Garcia, who was defeated in his bid for reelection, became no more than a caretaker
administrator whose duty was to prepare for the orderly transfer of authority to the
incoming President. Said the Court:
The filling up of vacancies in important positions, if few, and so spaced as to
afford some assurance of deliberate action and careful consideration of the need
for the appointment and appointee's qualifications may undoubtedly be
permitted. But the issuance of 350 appointments in one night and the planned
induction of almost all of them in a few hours before the inauguration of the new
President may, with some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a mere partisan effort
to fill all vacant positions irrespective of fitness and other conditions, and
41
thereby to deprive the new administration of an opportunity to make the
corresponding appointments.
As indicated, the Court recognized that there may well be appointments to important
positions which have to be made even after the proclamation of the new
President. Such appointments, so long as they are few and so spaced as to afford
some assurance of deliberate action and careful consideration of the need for
the appointment and the appointees qualifications, can be made by the outgoing
President. Accordingly, several appointments made by President Garcia, which were
shown to have been well considered, were upheld.
Section 15, Article VII has a broader scope than the Aytona ruling. It may not
unreasonably be deemed to contemplate not only midnight appointments those
made obviously for partisan reasons as shown by their number and the time of
their making but also appointments presumed made for the purpose of
influencing the outcome of the Presidential election.
On the other hand, the exception in the same Section 15 of Article VII allowing
appointments to be made during the period of the ban therein provided is much
narrower than that recognized in Aytona. The exception allows only the making
of temporary appointments to executive positions when continued vacancies
will prejudice public service or endanger public safety. Obviously, the article greatly
restricts the appointing power of the President during the period of the ban.
Considering the respective reasons for the time frames for filling vacancies in the courts
and the restriction on the President's power of appointment, it is this Courts view that,
as a general proposition, in case of conflict, the former should yield to the latter. Surely,
the prevention of vote-buying and similar evils outweighs the need for avoiding delays
in filling up of court vacancies or the disposition of some cases. Temporary vacancies
can abide the period of the ban which, incidentally and as earlier pointed out, comes
to exist only once in every six years.Moreover, those occurring in the lower courts can
be filled temporarily by designation. But prohibited appointments are long-lasting and
permanent in their effects. They may, as earlier pointed out, in fact influence the results
of elections and, for that reason, their making is considered an election offense.[76]
Given the background and rationale for the prohibition in Section 15, Article VII, we
have no doubt that the Constitutional Commission confined the prohibition to
appointments made in the Executive Department. The framers did not need to extend
the prohibition to appointments in the Judiciary, because their establishment of the JBC
and their subjecting the nomination and screening of candidates for judicial positions
to the unhurried and deliberate prior process of the JBC ensured that there would no
longer bemidnight appointments to the Judiciary. If midnight appointments in the mold
of Aytona were made in haste and with irregularities, or made by an outgoing Chief
Executive in the last days of his administration out of a desire to subvert the policies of
the incoming President or for partisanship,[77] the appointments to the Judiciary made
after the establishment of the JBC would not be suffering from such defects because
of the JBCs prior processing of candidates. Indeed, it is axiomatic in statutory
construction that the ascertainment of the purpose of the enactment is a step in the
process of ascertaining the intent or meaning of the enactment, because the reason
for the enactment must necessarily shed considerable light on the law of the
statute, i.e., the intent; hence, the enactment should be construed with reference to its
intended scope and purpose, and the court should seek to carry out this purpose rather
than to defeat it.[78]
Also, the intervention of the JBC eliminates the danger that appointments to the
Judiciary can be made for the purpose of buying votes in a coming presidential election,
or of satisfying partisan considerations. The experience from the time of the
establishment of the JBC shows that even candidates for judicial positions at any level
backed by people influential with the President could not always be assured of being
recommended for the consideration of the President, because they first had to undergo
the vetting of the JBC and pass muster there. Indeed, the creation of the JBC
was precisely intended to de-politicize the Judiciary by doing away with the
intervention of the Commission on Appointments. This insulating process was absent
from the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments
in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC
itself when it met on March 9, 1998 to discuss the question raised by some sectors
about the constitutionality of xxx appointments to the Court of Appeals in light of the
forthcoming presidential elections. He assured that on the basis of the (Constitutional)
Commissions records, the election ban had no application to appointments to the Court
of Appeals.[79] This confirmation was accepted by the JBC, which then submitted to the
President for consideration the nominations for the eight vacancies in the Court of
Appeals.[80]
The fault of Valenzuela was that it accorded no weight and due consideration to the
confirmation of Justice Regalado. Valenzuela was weak, because it relied on
interpretation to determine the intent of the framers rather than on the deliberations of
the Constitutional Commission. Much of the unfounded doubt about the Presidents
42
power to appoint during the period of prohibition in Section 15, Article VII could have
been dispelled since its promulgation on November 9, 1998, had Valenzuela properly
acknowledged and relied on the confirmation of a distinguished member of the
Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section
16) concern the appointing powers of the President.
Section 14 speaks of the power of the succeeding President to revoke appointments
made by an Acting President,[81] and evidently refers only to appointments in the
Executive Department. It has no application to appointments in the Judiciary,
because temporary or acting appointments can only undermine the independence of
the Judiciary due to their being revocable at will.[82] The letter and spirit of the
Constitution safeguard that independence. Also, there is no law in the books that
authorizes the revocation of appointments in the Judiciary. Prior to their mandatory
retirement or resignation, judges of the first and second level courts and the Justices
of the third level courts may only be removed for cause, but the Members of the
Supreme Court may be removed only by impeachment.
Section 16 covers only the presidential appointments that require confirmation by the
Commission on Appointments. Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on Appointments after the requirement
was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the
restored requirement did not include appointments to the Judiciary.[83]
Section 14, Section 15, and Section 16 are obviously of the same character, in that
they affect the power of the President to appoint. The fact that Section 14 and Section
16 refer only to appointments within the Executive Department renders conclusive that
Section 15 also applies only to the Executive Department. This conclusion is consistent
with the rule that every part of the statute must be interpreted with reference to the
context, i.e. that every part must be considered together with the other parts, and kept
subservient to the general intent of the whole enactment.[84] It is absurd to assume that
the framers deliberately situated Section 15 between Section 14 and Section 16, if they
intended Section 15 to cover all kinds of presidential appointments. If that was their
intention in respect of appointments to the Judiciary, the framers, if only to be clear,
would have easily and surely inserted a similar prohibition in Article VIII, most likely
within Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments
to the Judiciary further undermines the intent of the Constitution of ensuring the
independence of the Judicial Department from the Executive and Legislative
Departments. Such a holding will tie the Judiciary and the Supreme Court to the
fortunes or misfortunes of political leaders vying for the Presidency in a presidential
election. Consequently, the wisdom of having the new President, instead of the current
incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure
judicial independence, because the appointee can also become beholden to the
appointing authority. In contrast, the appointment by the incumbent President does not
run the same risk of compromising judicial independence, precisely because her term
will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no need for the
incumbent President to appoint during the prohibition period the successor of Chief
Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will
still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.
The argument is flawed, because it is focused only on the coming vacancy occurring
from Chief Justice Punos retirement by May 17, 2010. It ignores the need to apply
Section 4(1) to every situation of a vacancy in the Supreme Court.
The argument also rests on the fallacious assumption that there will still be time
remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily
demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the second Monday
of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the
regular presidential elections are held on May 8, the period of the prohibition is 115
days. If such elections are held on May 14, the period of the prohibition is 109 days.
Either period of the prohibition is longer than the full mandatory 90-day period to fill the
vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e.,
the difference between the shortest possible period of the ban of 109 days and the 90-
day mandatory period for appointments) in which the outgoing President would be in
no position to comply with the constitutional duty to fill up a vacancy in the Supreme
Court. It is safe to assume that the framers of the Constitution could not have intended
such an absurdity. In fact, in their deliberations on the mandatory period for the
appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers
neither discussed, nor mentioned, nor referred to the ban against midnight
appointments under Section 15, Article VII, or its effects on the 90-day period, or vice
versa. They did not need to, because they never intended Section 15, Article VII to
apply to a vacancy in the Supreme Court, or in any of the lower courts.
43
Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether
a JBC list is necessary at all for the President any President to appoint a Chief Justice
if the appointee is to come from the ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be appointed by the President from
a list of at least three nominees prepared by the Judicial and Bar Council for any
vacancy. Such appointments need no confirmation.
xxx
The provision clearly refers to an appointee coming into the Supreme Court from the
outside, that is, a non-member of the Court aspiring to become one. It speaks of
candidates for the Supreme Court, not of those who are already members or sitting
justices of the Court, all of whom have previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices of the Court as
Chief Justice?
The question is not squarely before us at the moment, but it should lend itself to a
deeper analysis if and when circumstances permit. It should be a good issue for the
proposed Constitutional Convention to consider in the light of Senate President Juan
Ponce Enriles statement that the President can appoint the Chief Justice from among
the sitting justices of the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint the
successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still
address the situation of having the next President appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
Section 12. Vacancy in Office of Chief Justice. In case of a vacancy in the office of
Chief Justice of the Supreme Court or of his inability to perform the duties and powers
of his office, they shall devolve upon the Associate Justice who is first in precedence,
until such disability is removed, or another Chief Justice is appointed and duly qualified.
This provision shall apply to every Associate Justice who succeeds to the office of Chief
Justice.
The provision calls for an Acting Chief Justice in the event of a vacancy in the office of
the Chief Justice, or in the event that the Chief Justice is unable to perform his duties
and powers. In either of such circumstances, the duties and powers of the office of the
Chief Justice shall devolve upon the Associate Justice who is first in precedence until
a new Chief Justice is appointed or until the disability is removed.
Notwithstanding that there is no pressing need to dwell on this peripheral matter after
the Court has hereby resolved the question of consequence, we do not find it amiss to
confront the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is
composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by
the President from a list of at least three nominees prepared by the JBC for every
vacancy, which appointments require no confirmation by the Commission on
Appointments. With reference to the Chief Justice, he or she is appointed by the
President as Chief Justice, and the appointment is never in an acting capacity. The
express reference to a Chief Justice abhors the idea that the framers contemplated
an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they
would have simply written so in the Constitution. Consequently, to rely on Section 12
of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next
Chief Justice soonest is to defy the plain intent of the Constitution.
For sure, the framers intended the position of Chief Justice to be permanent, not one
to be occupied in an acting or temporary capacity. In relation to the scheme of things
under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds
to a rare situation in which the new Chief Justice is not yet appointed, or in which the
incumbent Chief Justice is unable to perform the duties and powers of the office. It
ought to be remembered, however, that it was enacted because the Chief Justice
appointed under the 1935 Constitution was subject to the confirmation of the
Commission on Appointments, and the confirmation process might take longer than
expected.
The appointment of the next Chief Justice by the incumbent President is preferable to
having the Associate Justice who is first in precedence take over. Under the
44
Constitution, the heads of the Legislative and Executive Departments are popularly
elected, and whoever are elected and proclaimed at once become the leaders of their
respective Departments. However, the lack of any appointed occupant of the office of
Chief Justice harms the independence of the Judiciary, because the Chief Justice is
the head of the entire Judiciary. The Chief Justice performs functions absolutely
significant to the life of the nation. With the entire Supreme Court being the Presidential
Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no
obstacle to the appointment of the next Chief Justice, aside from its being mandatory
for the incumbent President to make within the 90-day period from May 17, 2010, there
is no justification to insist that the successor of Chief Justice Puno be appointed by the
next President.
Historically, under the present Constitution, there has been no wide gap between the
retirement and the resignation of an incumbent Chief Justice, on one hand, and the
appointment to and assumption of office of his successor, on the other hand. As
summarized in the comment of the OSG, the chronology of succession is as follows:
1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice
Pedro Yap was appointed on the same day;
2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan
was appointed on the same day;
3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres
Narvasa was appointed the following day, December 8, 1991;
4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario
Davide, Jr. was sworn into office the following early morning of November 30, 1998;
5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio
Panganiban was appointed the next day, December 20, 2005; and
6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice
Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.[85]
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?
Mandamus shall issue when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act that the law specifically enjoins as a duty
resulting from an office, trust, or station.[86] It is proper when the act against which it is
directed is one addressed to the discretion of the tribunal or officer. Mandamus is not
available to direct the exercise of a judgment or discretion in a particular way.[87]
For mandamus to lie, the following requisites must be complied with: (a) the plaintiff
has a clear legal right to the act demanded; (b) it must be the duty of the defendant to
perform the act, because it is mandated by law; (c) the defendant unlawfully neglects
the performance of the duty enjoined by law; (d) the act to be performed is ministerial,
not discretionary; and (e) there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least
three nominees to the President for every vacancy in the Judiciary:
Section 8. xxx
(5) The Council shall have the principal function of recommending appointees to
the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from
the submission of the list.
However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in
the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from
the submission of the list, in the case of the lower courts. The 90-day period is directed at the
President, not at the JBC. Thus, the JBC should start the process of selecting the candidates
to fill the vacancy in the Supreme Court before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees
to fill a vacancy in the Supreme Court in order to enable the President to appoint one of
them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion
to submit the list to the President after the vacancy occurs, because that shortens the 90-day
period allowed by the Constitution for the President to make the appointment. For the JBC to
do so will be unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the ample time granted under the
45
Constitution to reflect on the qualifications of the nominees named in the list of the JBC before
making the appointment.
The duty of the JBC to submit a list of nominees before the start of the Presidents mandatory
90-day period to appoint is ministerial, but its selection of the candidates whose names will be
in the list to be submitted to the President lies within the discretion of the JBC. The object of the
petitions for mandamus herein should only refer to the duty to submit to the President the list of
nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of
duty, there must be an unjustified delay in performing that duty.[88] For mandamus to lie against
the JBC, therefore, there should be an unexplained delay on its part in recommending nominees
to the Judiciary, that is, in submitting the list to the President.
House of Representatives, thereby prejudicing the chances of some candidates for nomination
by raising the minimum number of votes required in accordance with the rules of the JBC, is not
based on the petitioners actual interest, because they have not alleged in their petition that they
were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners
lack locus standi on that issue.
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No.
191149, and the petition for mandamus in G.R. No. 191057 for being premature;

The distinction between a ministerial act and a discretionary one has been delineated in the 2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of
following manner: merit; and

The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state of
facts, in a prescribed manner, in obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the propriety or impropriety of the
act done. If thelaw imposes a duty upon a public officer and gives him the right to decide
how or when the duty shall be performed, such duty is discretionary and not ministerial.
The duty is ministerial only when the discharge of the same requires neither the exercise
of official discretion or judgment.[89]
Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a
writ of mandamus against the JBC. The actions for that purpose are premature, because it is
clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of
nominees to the President to fill the vacancy created by the compulsory retirement of Chief
Justice Puno.
IV
Writ of prohibition does not lie against the JBC
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar
Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created
by the compulsory retirement of Chief Justice Reynato S. Puno byMay 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the position of Chief
Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the
Judiciary and submit to the President the short list of nominees corresponding thereto in
accordance with this decision.
SO ORDERED.

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can
appoint the Chief Justice. Hence, Sorianos petition for prohibition in G.R. No. 191032, which
proposes to prevent the JBC from intervening in the process of nominating the successor of
Chief Justice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit.
The challenge mounted against the composition of the JBC based on the allegedly
unconstitutional allocation of a vote each to the ex officio members from the Senate and the

46
In Re Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City
and of Branch 24, Cabanatuan City, respectively.
DECISION
NARVASA, CJ.:
The question presented for resolution in the administrative matter at bar is whether,
during the period of the ban on appointments imposed by Section 15, Article VII of the
Constitution, the President is nonetheless required to fill vacancies in the judiciary, in
view of Sections 4(1) and 9 of Article VIII. A corollary question is whether he can make
appointments to the judiciary during the period of the ban in the interest of public
service.
Resolution of the issues is needful; it will preclude a recurrence of any conflict in the
matter of nominations and appointments to the Judiciary - as that here involved -
between the Chief Executive, on the one hand, and on the other, the Supreme Court
and the Judicial and Bar Council over which the Court exercises general supervision
and wields specific powers including the assignment to it of other functions and duties
in addition to its principal one of recommending appointees to the Judiciary, and the
determination of its Members' emoluments.[1]
I The Relevant Facts
The Resolution of the Court En Banc, handed down on May 14, 1998, sets out the
relevant facts and is for that reason hereunder reproduce in full.
Referred to the Court En Banc by the Chief Justice are the appointments signed by His
Excellency the President under the date of March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively. The
appointments were received at the Chief Justice's chambers on May 12, 1998. The
referral was made in view of the serious constitutional issue concerning said
appointments arising from the pertinent antecedents.
The issue was first ventilated at the meeting of the Judicial and Bar Council on March
9, 1998. The meeting had been called, according to the Chief Justice as Ex
Officio Chairman, to discuss the question raised by some sectors about the
"constitutionality of *** appointments" to the Court of Appeals, specifically, in light of
the forthcoming presidential elections. Attention was drawn to Section 15, Article VII of
the Constitution reading as follows:
"SEC 15. Two months immediately before the next presidential elections and up to the
end of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety."
On the other hand, appointments to fill vacancies in the Supreme court during the
period mentioned in the provision just quoted could seemingly be justified by another
provision of the same Constitution.Section 4(1) of Article VIII which states:
"SEC 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. ***. Any vacancy shall be filled within ninety days from the
occurrence thereof."
Also pertinent although not specifically discussed is Section 9 of the same Article VIII
which provides that for the lower courts, the President shall issue the appointments -
from a list of at least three nominees prepared by the Council for every vacancy - within
ninety days from the submission of the list.
The view was then expressed by Senior associate Justice Florenz D. Regalado,
Consultant of the Council, who had been a member of the Committee of the Executive
Department and of the Committee on the Judicial Department of the 1986
Constitutional Commission, that on the basis of the Commission's records, the election
ban had no application to appointments to the Court of Appeals. Without any extended
discussion or any prior research and study on the part of the other Members of the
JBC, this hypothesis was accepted, and was then submitted to the President for
consideration, together with the Council's nominations for eight (8) vacancies in the
Court of Appeals.
On April 6, 1998 the Chief Justice received an official communication from the
Executive Secretary transmitting the appointments of eight (8) Associate Justices of
the Court of Appeals all of which had been duly signed on March 11, 1998 by His
Excellency, the President. In view of the fact that all the appointments had been signed
on March 11, 1998 - the day immediately before the commencement of the ban on
appointments imposed by Section 15, Article VII of the Constitution - which impliedly
but no less clearly indicated that the President's Office did not agree with the hypothesis
that appointments to the Judiciary were not covered by said ban, the Chief Justice
resolved to defer consideration of nominations for the vacancy in the Supreme Court
created by the retirement of Associate Justice Ricardo J. Francisco, specially
considering that the Court had scheduled sessions in Baguio City in April, 1998, that
the legislature's representatives to the JBC were occupied with the forthcoming
elections, and that a member of the Council was going on a trip out of the country.
On May 4, 1998, the Chief Justice received a letter from the President, addressed to
the JBC requesting transmission of the "list of final nominees" for the vacancy "no later
than Wednesday, May 6, 1998," in view of the duty imposed on him by the Constitution
"to fill up the vacancy *** within ninety (90) days from February 13, 1998, the date the
present vacancy occurred."
On May 5, 1998, Secretary of Justice Silvestre Bello III requested the Chief Justice for
"guidance" respecting the expressed desire of the "regular members" of the JBC to
hold a meeting immediately to fill up the vacancy in the Court in line with the President's
47
letter of May 4. The Chief Justice advised Secretary Bello to await the reply that he
was drafting to the President's communication, a copy of which he would give to the
Secretary the following day.
On May 6, 1998 the Chief Justice sent his reply to the President. He began by stating
that no sessions had been scheduled for the Council after the May elections for the
reason that apparently the President's Office did not share the view posited by the JBC
that Section 15, Article VII of the Constitution had no application to JBC-recommended
appointments - the appointments to the Court of Appeals having been all uniformly
dated March 11, 1998, before the commencement of the prohibition in said provision -
thus giving rise to the "need to undertake further study of the matter," prescinding from
"the desire to avoid any constitutional issue regarding the appointment to the
mentioned vacancy" and the further fact that "certain senior members of the Court of
Appeals *** (had) asked the Council to reopen the question of their exclusion on
account of age from such (final) list." He closed with the assurance that the JBC
expected to deliberate on the nominations "forthwith upon the completion of the coming
elections." The letter was delivered to Malacaang at about 5 o'clock in the afternoon of
May 6, 1998, and a copy given to the Office of Justice Secretary Bello shortly before
that hour.
It would appear, however, that the Justice Secretary and the regular members of the
Council had already taken action without awaiting the Chief Justice's promised
response to the President's letter of May 4, 1998. On that day, May 6, 1998, they met
at some undisclosed place, deliberated, and came to an agreement on a resolution
which they caused to be reduced to writing and thereafter signed. In that two-page
Resolution they drew attention to Section 4 (1), Article VIII of the Constitution (omitting
any mention of Section 15, Article VII) as well as to the President's letter of May 4 in
which he "emphatically requested that the required list of final nominee be submitted
to him;" and pointing out that the "Council would be remiss in its duties" should it fail to
submit the nominations, closed with an appeal that the Chief Justice convene the
Council for the purpose "on May 7, 1998, at 2:00 o'clock in the afternoon." This
Resolution they transmitted to the Chief Justice together with their letter, also dated
May 6, in which they emphasized that "we are pressed for time" again drawing attention
to Section 4 (1). In Article VIII of the Constitution (and again omitting any reference to
Section 15, Article VII). They ended their letter with the following intriguing paragraph:
"Should the Chief Justice be not disposed to call for the meeting aforesaid, the
undersigned members constituting the majority will be constrained to convene the
Council for the purpose of complying with its Constitutional mandate."
It seems evident, as just intimated, that the resolution and the covering letter were
deliberated on, prepared and signed hours before delivery of the Chief Justice's letter
to the President and the Justice Secretary.
Since the Members of the Council appeared determined to hold a meeting regardless
of the Chief Justice's wishes, the latter convoked the Council to a meeting at 3 o'clock
in the afternoon of May 7, 1998.Present at the meeting were Chief Justice, Secretary
Bello, ex officio member and the regular members of the Council; Justice Regino
Hermosisima, Atty. Teresita Cruz Sison, Judge Cesar C. Peralejo. Also present on the
invitation of the Chief Justice, were Justices Hilario G. Davide, Jr., Flerida Ruth P.
Romero, Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Vicente V. Mendoza,
Artemio V. Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P.
Purisima. The Chief Justice reviewed the events leading to the session, and after
discussion, the body agreed to give the President time to answer the Chief Justice's
letter of May 6, 1998.
On May 7, 1998, the Chief Justice received a letter from His Excellency the President
in reply to his letter of May 6 (which the President said had been "received early this
morning"). The President expressed the view that "the election-ban provision (Article
VII, Sec. 15) *** applies only to executive appointments or appointments in the
executive branch of government," the whole article being "entitled 'EXECUTIVE
DEPARTMENT.'" He also observed that further proof of his theory "is the fact that
appointments to the judiciary have special, specific provisions applicable to them"
(citing Article VIII, Sec. 4 [1] and Article VIII, Section 9. In view thereof, he "firmly and
respectfully reiterate(d) *** (his) request for the Judicial and Bar Council to transmit ***
the final list of nominees for the lone Supreme Court vacancy."
The Chief Justice replied to the letter the following day, May 8, 1998. Since the Chief
Justice's letter explains the issue quite plainly, it is here quoted in full.
"Thank you for your letter of May 7, 1998, responding to my own communication of
May 6, 1998 which, I would like to say, reflects the collective sentiments of my
colleagues in the Supreme Court.Knowing how busy you are, I will deal straightaway
with the points set out in your letter.
The dating of the latest appointments to the Court of Appeals was adverted to merely
to explain how we in the Court and the JBC came to have the impression that you did
not share the view expressed in the JBC minutes of March 9, 1998 'that there is no
election ban with regard to the JBC appointments.' Be this as it may, the Court feels
that there is a serious question concerning the matter in light of the seemingly
inconsistent provisions of the Constitution. The first of these is Section 15, Article VII,
which reads:
'SEC. 15. Two months immediately before the next presidential elections and up to the
end of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety.'
The second is Section 4(1) of Article VIII which states:
48
'SEC 4(1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. ***. Any vacancy shall be filled within ninety days from the
occurrence thereof.'
As you can see, Your Excellency, Section 15 of Article VII imposes a direct prohibition
on the President: he "shall not make appointments" within the period mentioned, and
since there is no specification of which appointments are proscribed, the same may be
considered as applying to all appointments of any kind and nature. This is the general
rule then, the only exception being only as regards "executive positions" as to which
"temporary appointments" may be made within the interdicted period "when continued
vacancies therein will prejudice public service or endanger public safety." As the
exception makes reference only to "executive" positions, it would seem that "judicial"
positions are covered by the general rule.
On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the
Supreme Court "shall be filled within ninety days from the occurrence thereof." Unlike
Section 15, Article VII, the duty of filling the vacancy is not specifically imposed on the
President; hence, it may be inferred that it is a duty shared by the Judicial and Bar
council and the President.
Now, in view of the general prohibition in the first-quoted provision, how is the
requirement of filling vacancies in the Court within ninety days to be construed? One
interpretation that immediately suggests itself is that Section 4(1), Article VIII is a
general provision while Section 15, Article VII is a particular one; that is to say,
normally, when there are no presidential elections - which after all occur only every six
years - Section 4(1), Article VIII shall apply: vacancies in the Supreme Court shall be
filled within 90 days; but when (as now) there are presidential elections, the prohibition
in Section 15, Article VII comes into play: the President shall not make any
appointments. The reason for said prohibition, according to Fr. J. Bernas, S.J., an
authority on Constitutional Law and himself a member of the Constitutional
Commission, is "(I)n order not to tie the hands of the incoming President through
midnight appointments." Another interpretation is that put forth in the Minutes of the
JBC Meeting of March 9, 1998. I must emphasize that the validity of any appointment
to the Supreme Court at this time hinges on the correct interpretation of the foregoing
sections of the Constitution. On account of the importance of the question, I consulted
the Court about it but, as I stated in my letter of May 6, 1998, "it declined to take any
position, since obviously there had not been enough time to deliberate on the same ***
(although it) did agree that further study was necessary ***." Since the question has
actually come up, and its importance cannot be gainsaid, and it is the Court that is
empowered under the Constitution to make an authoritative interpretation of its
(provisions) or of those of any other law. I believe that the Court may now perhaps
consider the issue ripe for determination and come to grips with it, to avoid any possible
polemics concerning the matter. However the Court resolves the issue, no serious
prejudice will be done. Should the Court rule that the President is indeed prohibited to
make appointments in a presidential election year, then any appointment attempted
within the proscribed period would be void anyway. If the Court should adjudge that the
ban has no application to appointments to the Supreme Court, the JBC may submit
nominations and the President may make the appointment forthwith upon such
adjudgment.
The matter is a delicate one, quite obviously, and must thus be dealt with with utmost
circumspection, to avoid any question regarding the validity of an appointment to the
Court at this time, or any accusation of "midnight" appointments or rash, hasty action
on the part of the JBC or the President.
In view thereof, and upon the advice and consent of the Members of the Court, I am
requesting the regular Members of the Judicial and Bar Council to defer action on the
matter until further advice by the Court. I earnestly make the same request of you, Your
Excellency, I assure you, however, that as befits a matter in which the Chief Executive
has evinced much interest, my colleagues and I will give it preferential and expeditious
attention and consideration. To this end, I intend to convene the Court by next week,
at the latest."
On May 8, 1998, again on the insistence of the regular Members of the JBC, another
meeting was held at which were present the Chief Justice, the Secretary of Justice and
the three regular Members above mentioned, as well as Justices Hilario G. Davide, Jr.,
Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Santiago
M. Kapunan, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M. Martinez,
Leonardo A. Quisumbing and Fidel P. Purisima. The meeting closed with a resolution
that "the constitutional provisions *** (in question) be referred to the Supreme Court En
Banc for appropriate action, together with the request that the Supreme Court consider
that the ninety-day period stated in Section 4 (1), Article VIII be suspended or
interrupted in view of the peculiar circumstances ***."
On May 12, 1998, the Chief Justice received from Malacaang the appointments of two
(2) Judges of the Regional Trial Court mentioned above. This places on the Chief
Justice the obligation of acting thereon; i.e., transmitting the appointments to the
appointees so that they might take their oaths and assume their duties of their
office. The trouble is that in doing so, the Chief Justice runs the risk of acting in a
manner inconsistent with the Constitution, for these appointments appear prima facie,
at least, to be expressly prohibited by Section 15, Article VII of the charter. This
circumstance, and the referral of the constitutional question to the Court in virtue of the
Resolution of May 8, 1998, supra, operate to raise a justiciable issue before the Court,
an issue of sufficient importance to warrant consideration and adjudication on the
merits. Accordingly, the Court Resolved to (1) CONSIDER the case at bar an
administrative matter and cause it to be appropriately docketed; (2) to DIRECT the
Clerk of Court to immediately serve copies of this Resolution on (a) the Office of the
49
President, (b) the Office of the Solicitor General, (c) Hon. Mateo A. Valenzuela, and (d)
Hon. Placido B. Vallarta (at their addresses recorded in the Judicial and Bar Council);
and (3) to REQUIRE the Office of the President, the Office of the Solicitor General,
Hon. Mateo A. Valenzuela, and Hon. Placido B. Vallarta to file their comments on this
Resolution within fifteen (15) days from notice thereof.
The Court further Resolved that (1) pending the foregoing proceedings and the
deliberation by the Court on the matter, and until further orders, no action be taken on
the appointments of Hon. Valenzuela and Hon. Vallarta which in the meantime shall be
held in abeyance and not given any effect and said appointees shall refrain from taking
their oath of office; and that (2) exercising its power of supervision over the Judicial and
Bar Council, said Council and its ex officio and regular Members herein mentioned be
INSTRUCTED, as they are hereby INSTRUCTED, to defer all action on the matter of
nominations to fill up the lone vacancy in the Supreme Court or any other vacancy until
further orders.
SO ORDERED.
II The Relevant Pleadings
In compliance with the foregoing Resolution, the following pleadings and other
documents were filed, to wit:
1) the manifestation dated May 28, 1998 of Hon. Mateo A. Velenzuela in compliance
with the Resolution of May 14, 1998;
2) the letter dated June 1, 1998 of Hon. Placido B. Vallarta in compliance with the same
Resolution;
3) the "Comments" of Hon. Valenzuela dated May 25, 1998;
4) his "Addendum to Comments" dated June 8, 1998;
5) his "Explanation" dated June 8, 1998;
6) the letter of Hon. Vallarta dated June 8, 1998;
7) his letter dated June 16, 1998;
8) the "Explanation" of Hon. Valenzuela dated July 17, 1998; and
9) the "Comment" of the Office of the Solicitor General dated August 5, 1998.
A. Valenzuela's Assumption of Duty as Judge on May 14, 1998
In his Manifestation dated May 28, 1998, Judge Valenzuela alleged inter alia:
"***that on May 14, 1998, he took his Oath of Office as Judge, RTC Branch 62, Bago
City, before Hon. Anastacio C. Rufon, Judge RTC, Branch 52, Bacolod City, pursuant
to Appointment dated March 30, 1998, (and) he also reported for duty as such before
said RTC Branch 62, Bago City *** (and that he did so) "faultlessly," *** without
knowledge of the on-going deliberations on the matter."
At that time, the originals of the appointments of Messrs. Valenzuela and Vallarta,
dated March 30, 1998 - addressed to them "Thru: the Chief Justice, Supreme Court of
the Philippines, Manila." and which had been sent to and received by the Chief Justice
on May 12, 1998[2] -- were still in the latter's Office, and had not been transmitted to
them precisely because of the serious issue concerning the validity of their
appointments. Indeed, one of the directives in the Resolution of May 14, 1998 was that
"pending *** deliberation by the Court on the matter, and until further orders, no action
be taken on the appointments *** which in the meantime shall be held in abeyance and
not given any effect ***." For this reason, by Resolution dated June 23, 1998, the Court
required Valenzuela to EXPLAIN by what authority he had taken his oath on May 14,
1998 as Judge of Branch 62 of the RTC at Bago City. In his "Explanation" dated July
17, 1998. Valenzuela stated that he did so because on May 7, 1998 he "received from
Malacaang copy of his appointment ***" which contained the following direction: "By
virtue hereof, you may qualify and enter upon the performance of the duties of the
office***."
The Court then deliberated on the pleadings and documents above mentioned, in
relation to the facts and circumstances on record, and thereafter Resolved to
promulgate the following opinion.
III The Relevant Constitutional Provisions
The provision of the Constitution material to the inquiry at bar read as follows:[3]
Section 15, Article VII:
"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 execute positions when continued vacancies therein will
prejudice public service or endanger public safety."
Section 4 (1), Article VIII:
"The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Justices. It may sit en banc or in its discretion, in divisions of three, five, or seven
Members. Any vacancy shall be filled within ninety days from the occurrence thereof."
Section 9, Article VIII:
"The Members of the Supreme Court and judges in lower courts shall be appointed by
the President from the list of at least three nominees prepared by the Judicial and Bar
Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from
the submission of the list."
IV The Court's View
The Court's view is that during the period stated in Section 15, Article VII of the
Constitution - "(t)wo months immediately before the next presidential elections and up
to the end of his term" - the President is neither required to make appointments to the
courts nor allowed to do so; and that Sections 4(1) and 9 of Article VIII simply mean
that the President is required to fill vacancies in the courts within the time frames
provided therein unless prohibited by Section 15 of Article VII. It is noteworthy that the
prohibition on appointments comes into effect only once every six years.
V Intent of the Constitutional Commission
50
The journal of the Commission which drew up the present Constitution discloses that
the original proposal was to have an eleven-member Supreme Court. Commissioner
Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to
ensure that that number would not be reduced for any appreciable length of time (even
only temporarily), and to this end proposed that any vacancy "must be filled within two
months from the date that the vacancy occurs." His proposal to have a 15-member
Court was not initially adopted. Persisting however in his desire to make certain that
the size of the Court would not be decreased for any substantial period as a result of
vacancies, Lerum proposed the insertion in the provision (anent the Court's
membership) of the same mandate that "IN CASE OF ANY VACANCY, THE SAME
SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He
later agreed to suggestions to make the period three, instead of two, months. As thus
amended, the proposal was approved.[4] As it turned out, however, the Commission
ultimately agreed on a fifteen-member Court.[5] Thus it was that the section fixing the
composition of the Supreme Court came to include a command to fill up any vacancy
therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that any "vacancy shall
be filled within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts
with the prohibition in Section 15, Article VII, which is couched in stronger negative
language - that "a President or Acting President shall not make appointments"
The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now
a Member of this Court) to add to what is now Section 9 of Article VIII, the following
paragraph: "WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE
THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE
LIST" (of nominees by the Judicial and Bar Council to the President).[6] Davide stated
that his purpose was to provide a "uniform rule" for lower courts. According to him, the
90-day period should be counted from submission of the list of nominees to the
President in view of the possibility that the President might reject the list submitted to
him and the JBC thus need more time to submit a new one.[7]
On the other hand, Section 15, Article VII - which in effect deprives the President of his
appointing power "two months immediately before the next presidential elections up to
the end of his term" - was approved without discussion.
VI. Analysis of Provisions
Now, it appears that Section 15, Article VII is directed against two types of
appointments: (1) those made for buying votes and (2) those made for partisan
considerations. The first refers to those appointments made within the two months
preceding a Presidential election and are similar to those which are declared election
offenses in the Omnibus Election Code, viz.:[8]
SEC. 261. Prohibited Acts. - The following shall be guilty of an election offense:
(a) Vote buying and vote selling - (1) Any person who gives, offers or promises money
or anything of value, gives or promises any office or employment, franchise or grant,
public or private, or makes or offers to make an expenditure, directly or indirectly, or
cause an expenditure to be made to any person, association, corporation, entity, or
community in order to induce anyone or the public in general to vote for or against
any candidate or withhold his vote in the election, or to vote for or against any aspirant
for the nomination of choice of a candidate in a convention or similar selection process
of a political party.
.
(g) Appointment of new employees, creation of new position, promotion, or giving
salary increases. - During the period of forty five days before a regular election and
thirty days before a special election, (1) any head, official or appointing officer of a
government office, agency or instrumentality whether national or local, including
government-owned or controlled corporations, who appoints or hires any new
employee, whether provisional, temporary, or casual, or creates and fills any new
position, except upon prior authority of the Commission. The Commission shall not
grant the authority sought unless, it is satisfied that the position to be filled is essential
to the proper functioning of the office or agency concerned, and that the position shall
not be filled in a manner that may influence the election. The second type of
appointments prohibited by Section 15, Article VII consists of the so-called "midnight"
appointments. In Aytona v. Castillo,[9] it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was
defeated in his bid for reelection, became no more than a "caretaker" administrator
whose duty was to "prepare for the orderly transfer of authority to the incoming
President." Said the Court: "The filling up of vacancies in important positions, if few,
and so spaced as to afford some assurance of deliberate action and careful
consideration of the need for the appointment and appointee's qualifications may
undoubtedly be permitted. But the issuance of 350 appointments in one night and the
planned induction of almost all of them in a few hours before the inauguration of the
new President may, with some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill
all vacant positions irrespective of fitness and other conditions, and thereby to deprive
the new administration of an opportunity to make the corresponding appointments."
As indicated, the Court recognized that there may well be appointments to important
positions which have to be made even after the proclamation of the new
President. Such appointments, so long as they are "few and so spaced as to afford
some assurance of deliberate action and careful consideration of the need for the
appointment and the appointee's qualifications,"[10] can be made by the outgoing
President.Accordingly, several appointments made by President Garcia, which were
shown to have been well considered, were upheld.[11]
51
Section 15, Article VII has a broader scope than the Aytona ruling. It may not
unreasonably be deemed to contemplate not only "midnight" appointments - those
made obviously for partisan reasons as shown by their number and the time of their
making - but also appointments presumed made for the purpose of influencing the
outcome of the Presidential election.
On the other hand, the exception in the same Section 15 of Article VII - allowing
appointments to be made during the period of the ban therein provided - is much
narrower than that recognized in Aytona.The exception allows only the making
of temporary appointments to executive positions when continued vacancies
will prejudice public service or endanger public safety. Obviously, the article greatly
restricts the appointing power of the President during the period of the ban.
Considering the respective reasons for the time frames for filling vacancies in the courts
and the restriction on the President's power of appointment, it is this Court's view that,
as a general proposition, in case of conflict, the former should yield to the latter. Surely,
the prevention of vote-buying and similar evils outweighs the need for avoiding delays
in filling up of court vacancies or the disposition of some cases. Temporary vacancies
can abide the period of the ban which, incidentally and as earlier pointed out, comes
to exist only once in every six years. Moreover, those occurring in the lower courts can
be filled temporarily by designation. But prohibited appointments are long-lasting and
permanent in their effects. They may, as earlier pointed out, in fact influence the results
of elections and, for that reason, their making is considered an election offense.
To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article
VIII should prevail over Section 15 of Article VII, because they may be
considered later expressions of the peoplewhen they adopted the Constitution, it
suffices to point out that the Constitution must be construed in its entirety as one, single,
instrument. To be sure, instances may be conceived of the imperative need for an
appointment, during the period of the ban, not only in the executive but also in the
Supreme Court. This may be the case should the membership of the court be so
reduced that it will have no quorum or should the voting on a particularly important
question requiring expeditious resolution be evenly divided. Such a case, however, is
covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII.[12]
VII. A Last Word
A final word, concerning Valenzuela's oath-taking and "reporting for duty" as Presiding
Judge of RTC Branch 62, Bago City, on May 14, 1998.[13] Standing practice is for the
originals of all appointments to the Judiciary - from the highest to the lowest courts - to
be sent by the Office of the President to the Office of the Chief Justice, the
appointments being addressed to the appointees "Thru: the Chief Justice, Supreme
Court, Manila." It is a Clerk of Court of the Supreme Court, in the Chief Justice's behalf,
who thereafter advises the individual appointees of their appointments and also of the
date of commencement of the pre-requisite orientation seminar, to be conducted by
the Philippine Judicial Academy for new Judges. The rationale of this procedure is
salutary and readily perceived. The procedure ensures the authenticity of the
appointments, enables the Court, particularly of the Office of the Court Administrator,
to enter in the appropriate records all appointments to the Judiciary as well as other
relevant data such as the dates of qualification, the completion by the appointees of
their pre-requisite orientation seminars, their assumption of duty, etc.
The procedure also precludes the possibility, however remote, of Judges acting on
spurious or otherwise defective appointments. It is obviously not advisable, to say the
least, for a Judge to take his oath of office and enter upon the performance of his duties
on the basis alone of a document purporting to be a copy of his appointment coming
from Malacaang, the authenticity of which has not been verified from the latter of the
Office of the Court Administrator; or otherwise to begin performing his duties as Judge
without the Court Administrator knowing of that fact. The undesirability of such a
situation is illustrated by the case of Judge Valenzuela who acted, with no little
impatience or rashness, on a mere copy of his supposed appointment, without having
received any formal notice from this Court, and without verifying the authenticity of the
appointment or the propriety of taking oath on the basis thereof. Had he bothered to
inquire about his appointment from the Court Administrator's Office, he would have
been informed of the question concerning it and the Court's injunction.
VIII. Conclusion
The appointments of Messrs. Valenzuela and Vallarta on March 30, 1998 (transmitted
to the Office of the Chief Justice on May 14, 1998) were unquestionably made
during the period of the ban.Consequently, they come within the operation of the first
prohibition relating to appointments which are considered to be for the purpose of
buying votes or influencing the election. While the filling of vacancies in the judiciary is
undoubtedly in the public interest, there is no showing in this case of any compelling
reason to justify the making of the appointments during the period of the ban. On the
other hand, as already discussed, there is a strong public policy for the prohibition
against appointments made within the period of the ban. In view of the foregoing
considerations, the Court Resolved to DECLARE VOID the appointments signed by
His Excellency the President under date of March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively, and to order
them, forthwith on being served with notice of this decision, to forthwith CEASE AND
DESIST from discharging the office of Judge of the Courts to which they were
respectively appointed on March 30, 1998. This, without prejudice to their being
considered anew by the Judicial and Bar Council for re-nomination to the same
positions. IT IS SO ORDERED.
52
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,
vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF
CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE
DEPARTMENT OF BUDGET, respondents, COMMISSION ON
APPOINTMENTS, intervenor.
PADILLA, J.:
Once more the Court is called upon to delineate constitutional boundaries. In this
petition for prohibition, the petitioners, who are taxpayers, lawyers, members of the
Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin
the respondent Salvador Mison from performing the functions of the Office of
Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as
Secretary of the Department of Budget, from effecting disbursements in payment of
Mison's salaries and emoluments, on the ground that Mison's appointment as
Commissioner of the Bureau of Customs is unconstitutional by reason of its not having
been confirmed by the Commission on Appointments. The respondents, on the other
hand, maintain the constitutionality of respondent Mison's appointment without the
confirmation of the Commission on Appointments.
Because of the demands of public interest, including the need for stability in the public
service, the Court resolved to give due course to the petition and decide, setting aside
the finer procedural questions of whether prohibition is the proper remedy to test
respondent Mison's right to the Office of Commissioner of the Bureau of Customs and
of whether the petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the Commission on
Appointments to intervene and file a petition in intervention. Comment was required of
respondents on said petition. The comment was filed, followed by intervenor's reply
thereto. The parties were also heard in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a conflict
between two (2) great departments of government, the Executive and Legislative
Departments. It also occurs early in the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions
in the Constitution. In cases like this, we follow what the Court, speaking through Mr.
Justice (later, Chief Justice) Jose Abad Santos stated inGold Creek Mining Corp. vs.
Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give effect to the intent of
the framers of the organic law and of the people adopting it. The intention to which
force is to be given is that which is embodied and expressed in the constitutional
provisions themselves.
The Court will thus construe the applicable constitutional provisions, not in accordance
with how the executive or the legislative department may want them construed, but in
accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of the
departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
It is readily apparent that under the provisions of the 1987 Constitution, just quoted,
there are four (4) groups of officers whom the President shall appoint. These four (4)
groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in him in this Constitution; 2
Second, all other officers of the Government whose appointments are not otherwise
provided for by law; 3
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in
the President alone.
The first group of officers is clearly appointed with the consent of the Commission on
Appointments. Appointments of such officers are initiated by nomination and, if the
nomination is confirmed by the Commission on Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present bone of contention.
Should they be appointed by the President with or without the consent (confirmation)
of the Commission on Appointments? By following the accepted rule in constitutional
and statutory construction that an express enumeration of subjects excludes others not
enumerated, it would follow that only those appointments to positions expressly stated
in the first group require the consent (confirmation) of the Commission on
Appointments. But we need not rely solely on this basic rule of constitutional
construction. We can refer to historical background as well as to the records of the
1986 Constitutional Commission to determine, with more accuracy, if not precision, the
53
intention of the framers of the 1987 Constitution and the people adopting it, on whether
the appointments by the President, under the second, third and fourth groups, require
the consent (confirmation) of the Commission on Appointments. Again, in this task, the
following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos:
In deciding this point, it should be borne in mind that a constitutional provision must be
presumed to have been framed and adopted in the light and understanding of prior and
existing laws and with reference to them. "Courts are bound to presume that the people
adopting a constitution are familiar with the previous and existing laws upon the
subjects to which its provisions relate, and upon which they express their judgment and
opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided
that —
xxx xxx xxx
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the army from the rank of colonel, of the Navy and Air Forces from the rank
of captain or commander, and all other officers of the Government whose appointments
are not herein otherwise provided for, and those whom he may be authorized by law
to appoint; but the Congress may by law vest the appointment of inferior officers, in the
President alone, in the courts, or in the heads of departments.
(4) The President shall havethe power to make appointments during the recess of the
Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall appoint
ambassadors, other public ministers and consuls ...
Upon the other hand, the 1973 Constitution provides that-
Section 10. The President shall appoint the heads of bureaus and offices, the officers
of the Armed Forces of the Philippines from the rank of Brigadier General or
Commodore, and all other officers of The government whose appointments are not
herein otherwise provided for, and those whom he may be authorized by law to appoint.
However, the Batasang Pambansa may by law vest in the Prime Minister, members of
the Cabinet, the Executive Committee, Courts, Heads of Agencies, Commissions, and
Boards the power to appoint inferior officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential appointments required the
consent (confirmation) of the Commission on Appointments. It is now a sad part of our
political history that the power of confirmation by the Commission on Appointments,
under the 1935 Constitution, transformed that commission, many times, into a venue
of "horse-trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in
which it was molded and remolded by successive amendments, placed the absolute
power of appointment in the President with hardly any check on the part of the
legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the
1973 Constitution, it is not difficult for the Court to state that the framers of the 1987
Constitution and the people adopting it, struck a "middle ground" by requiring the
consent (confirmation) of the Commission on Appointments for the first group of
appointments and leaving to the President, without such confirmation, the appointment
of other officers, i.e., those in the second and third groups as well as those in the fourth
group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The
original text of Section 16, Article VII, as proposed by the Committee on the Executive
of the 1986 Constitutional Commission, read as follows:
Section 16. The president shall nominate and, with the consent of a Commission on
Appointment, shall appoint the heads of the executive departments and bureaus,
ambassadors, other public ministers and consuls, or officers of the armed forces from
the rank of colonel or naval captain and all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may by law vest the appointment of inferior
officers in the President alone, in the courts, or in the heads of
departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the 1935
Constitution. When the frames discussed on the floor of the Commission the proposed
text of Section 16, Article VII, a feeling was manifestly expressed to make the power of
the Commission on Appointments over presidential appointments more limited than
that held by the Commission in the 1935 Constitution. Thus-
Mr. Rama: ... May I ask that Commissioner Monsod be recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our time
to lay the basis for some of the amendments that I would like to propose to the
Committee this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the Commission on
Appointments be limited to the department heads, ambassadors, generals and so on
but not to the levels of bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2) major changes
proposed and approved by the Commission. These were (1) the exclusion of the
appointments of heads of bureaus from the requirement of confirmation by the
54
Commission on Appointments; and (2) the exclusion of appointments made under the
second sentence 9 of the section from the same requirement. The records of the
deliberations of the Constitutional Commission show the following:
MR. ROMULO: I ask that Commissioner Foz be recognized
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line
26 which is to delete the words "and bureaus," and on line 28 of the same page, to
change the phrase 'colonel or naval captain to MAJOR GENERAL OR REAR
ADMIRAL. This last amendment which is co-authored by Commissioner de Castro is
to put a period (.) after the word ADMIRAL, and on line 29 of the same page, start a
new sentence with: HE SHALL ALSO APPOINT, et cetera.
MR. REGALADO: May we have the amendments one by one. The first proposed
amendment is to delete the words "and bureaus" on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners, what would be the
justification of the proponent for such a deletion?
MR. FOZ: The position of bureau director is actually quite low in the executive
department, and to require further confirmation of presidential appointment of heads of
bureaus would subject them to political influence.
MR. REGALADO: The Commissioner's proposed amendment by deletion also includes
regional directors as distinguished from merely staff directors, because the regional
directors have quite a plenitude of powers within the regions as distinguished from staff
directors who only stay in the office.
MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff bureau
directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner
proposed an amendment to delete 'and bureaus on Section 16. Who will then appoint
the bureau directors if it is not the President?
MR. FOZ: It is still the President who will appoint them but their appointment shall no
longer be subject to confirmation by the Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner
de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of the Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that this matter should be
submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by one. We will first vote on the
deletion of the phrase 'and bureaus on line 26, such that appointments of bureau
directors no longer need confirmation by the Commission on Appointment.
Section 16, therefore, would read: 'The President shall nominate, and with the consent
of a Commission on Appointments, shall appoint the heads of the executive
departments, ambassadors. . . .
THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page
7, line 26? (Silence) The Chair hears none; the amendments is approved.
xxx xxx xxx
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28.
1 propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute
it with HE SHALL ALSO APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts the proposed amendment
because it makes it clear that those other officers mentioned therein do not have to be
confirmed by the Commission on Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment to his amendment, so
that after "captain" we insert the following words: AND OTHER OFFICERS WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided for in the Constitution whose
appointments are vested in the President, as a matter of fact like those of the different
constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive
list of those appointments which constitutionally require confirmation of the
Commission on Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed.
FR. BERNAS: Will Commissioner Davide restate his proposed amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION.
FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE APPOINTMENTS
REQUIRE CONFIRMATION UNDER THIS CONSTITUTION"?
MR. DAVIDE: Yes, Madam President, that is modified by the Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
55
MR. REGALADO: Just for the record, of course, that excludes those officers which the
Constitution does not require confirmation by the Commission on Appointments, like
the members of the judiciary and the Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the modification made by
Commissioner Bernas.
THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz
and Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed amendment of
Commissioners Foz and Davide as accepted by the Committee? (Silence) The Chair
hears none; the amendment, as amended, is approved 10 (Emphasis supplied).
It is, therefore, clear that appointments to the second and third groups of officers can
be made by the President without the consent (confirmation) of the Commission on
Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence
of Sec. 16, Article VII reading-
He (the President) shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law and those whom he may be
authorized by law to appoint . . . . (Emphasis supplied)
with particular reference to the word "also," implies that the President shall "in like
manner" appoint the officers mentioned in said second sentence. In other words, the
President shall appoint the officers mentioned in said second sentence in the same
manner as he appoints officers mentioned in the first sentence, that is, by nomination
and with the consent (confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not necessarily
supportive of the conclusion he arrives at. For, as the Solicitor General argues, the
word "also" could mean "in addition; as well; besides, too" (Webster's International
Dictionary, p. 62, 1981 edition) which meanings could, on the contrary, stress that the
word "also" in said second sentence means that the President, in addition to
nominating and, with the consent of the Commission on Appointments, appointing the
officers enumerated in the first sentence, can appoint (without such consent
(confirmation) the officers mentioned in the second sentence-
Rather than limit the area of consideration to the possible meanings of the word "also"
as used in the context of said second sentence, the Court has chosen to derive
significance from the fact that the first sentence speaks of nomination by the President
and appointment by the President with the consent of the Commission on
Appointments, whereas, the second sentence speaks only of appointment by the
President. And, this use of different language in two (2) sentences proximate to each
other underscores a difference in message conveyed and perceptions established, in
line with Judge Learned Hand's observation that "words are not pebbles in alien
juxtaposition" but, more so, because the recorded proceedings of the 1986
Constitutional Commission clearly and expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution,
there are officers whose appointments require no confirmation of the Commission on
Appointments, even if such officers may be higher in rank, compared to some officers
whose appointments have to be confirmed by the Commission on Appointments under
the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of
the Central Bank Governor requires no confirmation by the Commission on
Appointments, even if he is higher in rank than a colonel in the Armed Forces of the
Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive
intention and deliberate judgment of the framers of the 1987 Constitution that, except
as to those officers whose appointments require the consent of the Commission on
Appointments by express mandate of the first sentence in Sec. 16, Art. VII,
appointments of other officers are left to the President without need of confirmation by
the Commission on Appointments. This conclusion is inevitable, if we are to presume,
as we must, that the framers of the 1987 Constitution were knowledgeable of what they
were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character.
Limitations on or qualifications of such power should be strictly construed against them.
Such limitations or qualifications must be clearly stated in order to be recognized. But,
it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that
appointments by the President to the positions therein enumerated require the consent
of the Commission on Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor
Commission on Appointments underscores the third sentence in Sec. 16, Article VII of
the 1987 Constitution, which reads:
The Congress may, by law, vest the appointment of other officers lower in rank in the
Presidentalone, in the courts, or in the heads of departments, agencies, commissions,
or boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers
in the President alone, this implies that, in the absence of such a law, lower-ranked
officers have to be appointed by the President subject to confirmation by the
Commission on Appointments; and, if this is so, as to lower-ranked officers, it follows
that higher-ranked officers should be appointed by the President, subject also to
confirmation by the Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article
VII, abovequoted, merely declares that, as to lower-ranked officers, the Congress may
by law vest their appointment in the President, in the courts, or in the heads of the
56
various departments, agencies, commissions, or boards in the government. No reason
however is submitted for the use of the word "alone" in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion, after a
careful study of the deliberations of the 1986 Constitutional Commission, that the use
of the word alone" after the word "President" in said third sentence of Sec. 16, Article
VII is, more than anything else, a slip or lapsus in draftmanship. It will be recalled that,
in the 1935 Constitution, the following provision appears at the end of par. 3, section 1
0, Article VII thereof —
...; but the Congress may by law vest the appointment of inferior officers, in the
President alone, in the courts, or in the heads of departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the provision
which makes practically all presidential appointments subject to confirmation by the
Commission on Appointments, thus-
3. The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank
of captain or commander, and all other officers of the Government whose appointments
are not herein provided for, and those whom he may be authorized by law to appoint;In
other words, since the 1935 Constitution subjects, as a general rule, presidential appointments
to confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by
way of an exception to such rule, to provide that Congress may, however, by law vest the
appointment of inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987
Constitution) in the President alone, in the courts, or in the heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its
framers was to exclude presidential appointments from confirmation by the Commission on
Appointments, except appointments to offices expressly mentioned in the first sentence of Sec.
16, Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article
VII the word "alone" after the word "President" in providing that Congress may by law vest the
appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of
departments, because the power to appoint officers whom he (the President) may be authorized
by law to appoint is already vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case
of lower-ranked officers, the Congress may by law vest their appointment in the President, in
the courts, or in the heads of various departments of the government. In short, the word "alone"
in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the
last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in
the light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail
over the clear and positive intent of the framers of the 1987 Constitution that
presidential appointments, except those mentioned in the first sentence of Sec. 16,
Article VII, are not subject to confirmation by the Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the position of
Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first
group of appointments where the consent of the Commission on Appointments is required. As
a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus"
among those officers whose appointments need the consent of the Commission on
Appointments, the 1987 Constitution on the other hand, deliberately excluded the position of
"heads of bureaus" from appointments that need the consent (confirmation) of the Commission
on Appointments.
Moreover, the President is expressly authorized by law to appoint the Commissioner of the
Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known
as the Tariff and Customs Code of the Philippines, which was enacted by the Congress of the
Philippines on 22 June 1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one
assistant chief, to be known respectively as the Commissioner (hereinafter known as the
'Commissioner') and Assistant Commissioner of Customs, who shall each receive an annual
compensation in accordance with the rates prescribed by existing laws. The Assistant
Commissioner of Customs shall be appointed by the proper department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree
No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended,
now reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one
chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known
as Commissioner) and Deputy Commissioner of Customs, who shall each receive an annual
compensation in accordance with the rates prescribed by existing law. The Commissioner and
the Deputy Commissioner of Customs shall be appointed by the President of the
Philippines (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity
of the 1935 Constitution, under which the President may nominate and, with the consent of the
Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the
Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have
to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the
Commissioner of the Bureau of Customs is one that devolves on the President, as an
appointment he is authorizedby law to make, such appointment, however, no longer needs the
confirmation of the Commission on Appointments.
Consequently, we rule that the President of the Philippines acted within her constitutional
authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of
Customs, without submitting his nomination to the Commission on Appointments for
confirmation. He is thus entitled to exercise the full authority and functions of the office and to
receive all the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are, hereby
DISMISSED. Without costs.
SO ORDERED.
57
G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS
COMMITTEE ON JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS
AND HESIQUIO R. MALLILLIN, respondents.
Mary Concepcion Bautista for and in her own behalf.
Christine A.Tomas Espinosa for private respondent Hesiquio R. Mallillin
PADILLA, J.:
The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled
the question of which appointments by the President, under the 1987 Constitution, are
to be made with and without the review of the Commission on Appointments. The Mison
case was the first major case under the 1987 Constitution and in construing Sec. 16,
Art. VII of the 1987 Constitution which provides:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of the
departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
this Court, drawing extensively from the proceedings of the 1986 Constitutional
Commission and the country's experience under the 1935 and 1973 Constitutions, held
that only those appointments expressly mentioned in the first sentence of Sec. 16, Art.
VII are to be reviewed by the Commission on Appointments, namely, "the heads of the
executive department, ambassadors, other public ministers and consuls, or officers of
the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution." All other appointments by the
President are to be made without the participation of the Commission on Appointments.
Accordingly, in the Mison case, the appointment of therein respondent Salvador M.
Mison as head of the Bureau of Customs, without the confirmation of the Commission
on Appointments, was held valid and in accordance with the Constitution.
The Mison case doctrine did not foreclose contrary opinions. So with the very
provisions of Sec. 16, Art. VII as designed by the framers of the 1987 Constitution. But
the Constitution, as construed by this Court in appropriate cases, is the supreme law
of the land. And it cannot be over-stressed that the strength of the Constitution, with all
its imperfections, lies in the respect and obedience accorded to it by the people,
especially the officials of government, who are the subjects of its commands.
Barely a year after Mison, the Court is again confronted with a similar question, this
time, whether or not the appointment by the President of the Chairman of the
Commission on Human Rights (CHR), an "independent office" created by the 1987
Constitution, is to be made with or without the confirmation of the Commission on
Appointments (CA, for brevity). Once more, as in Mison, the Court will resolve the issue
irrespective of the parties involved in the litigation, mindful that what really matters are
the principles that will guide this Administration and others in the years to come.
Since the position of Chairman of the Commission on Human Rights is not among the
positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation of the Commission on
Appointments, it follows that the appointment by the President of the Chairman of the
(CHR), is to be made without the review or participation of the Commission on
Appointments.
To be more precise, the appointment of the Chairman and Members of the Commission
on Human Rights is not specifically provided for in the Constitution itself, unlike the
Chairmen and Members of the Civil Service Commission, the Commission on Elections
and the Commission on Audit, whose appointments are expressly vested by the
Constitution in the President with the consent of the Commission on Appointments. 2
The President appoints the Chairman and Members of the Commission on Human
Rights pursuant to the second sentence in Section 16, Art. VII, that is, without the
confirmation of the Commission on Appointments because they are among the officers
of government "whom he (the President) may be authorized by law to appoint." And
Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint
the Chairman and Members of the Commission on Human Rights. It provides:
(c) The Chairman and the Members of the Commission on Human Rights shall be
appointed by the President for a term of seven years without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the predecessor.
The above conclusions appear to be plainly evident and, therefore, irresistible.
However, the presence in this case of certain elements — absent in the Mison case —
makes necessary a closer scrutiny. The facts are therefore essential.
On 27 August 1987, the President of the Philippines designated herein petitioner Mary
Concepcion Bautista as"Acting Chairman, Commission on Human Rights." The letter
of designation reads:
27 August 1987
58
M a d a m: I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal,
You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN Makati, Metro Manila having been appointed to the position of CHAIRMAN of the
RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes. Commission on Human Rights, do solemnly swear that I will discharge to the best of
Very truly yours, my ability all the duties and responsibilities of the office to which I have been appointed;
CORAZON C. AQUINO uphold the Constitution of the Republic of the Philippines, and obey all the laws of the
HON. MARY CONCEPCION BAUTISTA 3 land without mental reservation or purpose of evasion.
Realizing perhaps the need for a permanent chairman and members of the SO HELP ME GOD.
Commission on Human Rights, befitting an independent office, as mandated by the MARY CONCEPCION BAUTISTA
Constitution, 4 the President of the Philippines on 17 December 1988 extended to SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of
petitioner Bautista a permanent appointment as Chairman of the Commission. The Our Lord, 1988 in Manila.
appointment letter is as follows: MARCELO B. FERNAN
17 December 1988 Chief Justice
The Honorable Supreme Court of the Philippines 6
The Chairman Immediately, after taking her oath of office as Chairman of the Commission on Human
Commission on Human Rights Rights, petitioner Bautista discharged the functions and duties of the Office of
Pasig, Metro Manila Chairman of the Commission on Human Rights which, as previously stated, she had
M a d a m: originally held merely in an acting capacity beginning 27 August 1987.
Pursuant to the provisions of existing laws, the following are hereby appointed to the On 9 January 1989, petitioner Bautista received a letter from the Secretary of the
positions indicated opposite their respective names in the Commission on Human Commission on Appointments requesting her to submit to the Commission certain
Rights: information and documents as required by its rules in connection with the confirmation
MARY CONCEPCION BAUTISTA — Chairman of her appointment as Chairman of the Commission on Human Rights. 7 On 10 January
ABELARDO L. APORTADERA, JR — Member 1989, the Commission on Appointments' Secretary again wrote petitioner Bautista
SAMUEL SORIANO — Member requesting her presence at a meeting of the Commission on Appointments Committee
HESIQUIO R. MALLILLIN — Member on Justice, Judicial and Bar Council and Human Rights set for 19 January 1989 at 9
NARCISO C. MONTEIRO — Member A.M. at the Conference Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay
By virtue hereof, they may qualify and enter upon the performance of the duties of the City that would deliberate on her appointment as Chairman of the Commission on
office furnishing this Office and the Civil Service Commission with copies of their oath Human Rights. 8
of office. On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on
Very truly yours, Appointments stating, for the reasons therein given, why she considered the
CORAZON C. AQUINO 5 Commission on Appointments as having no jurisdiction to review her appointment as
It is to be noted that by virtue of such appointment, petitioner Bautista was advised by Chairman of the Commission on Human Rights. The petitioner's letter to the
the President that she could qualify and enter upon the performance of the duties of Commission on Appointments' Chairman reads:
the office of Chairman of the Commission on Human Rights, requiring her to furnish January 13, 1 989
the office of the President and the Civil Service Commission with copies of her oath of SENATE PRESIDENT JOVITO R. SALONGA
office. Chairman
On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, Commission on Appointments
petitioner Bautista took her oath of office by virtue of her appointment as Chairman of Senate, Manila
the Commission on Human Rights. The full text of the oath of office is as follows: S i r:
OATH OF OFFICE We acknowledge receipt of the communication from the Commission on Appointments
requesting our appearance on January 19, 1989 for deliberation on our appointments.
59
We respectfully submit that the appointments of the Commission commissioners of the Bautista's "ad interim appointment' as Chairperson of the Commission on Human
Human Rights Commission are not subject to confirmation by the Commission on Rights in view of her refusal to submit to the jurisdiction of the Commission on
Appointments. Appointments. The letter reads:
The Constitution, in Article VII Section 16 which expressly vested on the President the 1 February 1989
appointing power, has expressly mentioned the government officials whose HON. CATALINO MACARAIG, JR.
appointments are subject to the confirmation of the Commission on Appointments of Executive Secretary
Congress. The Commissioners of the Commission on Human Rights are not included Malacanang, Manila
among those. S i r:
Where the confirmation of the Commission on Appointments is required, as in the case This refers to the ad interim appointment which Her Excellency extended to Atty. Mary
of the Constitutional Commissions such as the Commission on Audit, Civil Service Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on
Commission and the Commission on Elections, it was expressly provided that the Human Rights.
nominations will be subject to confirmation of Commission on Appointments. The As we conveyed to you in our letter of 25 January 1989, the Commission on
exclusion again of the Commission on Human Rights, a constitutional office, from this Appointments, assembled in plenary (session) on the same day, disapproved Atty.
enumeration is a clear denial of authority to the Commission on Appointments to review Bautista's ad interim appointment as Chairperson of the Commission on Human Rights
our appointments to the Commission on Human Rights. in view of her refusal to submit to the jurisdiction of the Commission on Appointments.
Furthermore, the Constitution specifically provides that this Commission is This is to inform you that the Commission on Appointments, likewise assembled in
an independent office which: plenary (session) earlier today, denied Senator Mamintal A. J. Tamano's motion for
a. must investigate all forms of human rights violations involving civil and political rights; reconsideration of the disapproval of Atty. Bautista's ad interim appointment as
b. shall monitor the government's compliance in all our treaty obligations on human Chairperson of the Commission on Human Rights.
rights. We submit that, the monitoring of all agencies of government, includes even Very truly yours,
Congress itself, in the performance of its functions which may affect human rights; RAOUL V. VICTORINO
c. may call on all agencies of government for the implementation of its mandate. Secretary 11
The powers of the Commission on Appointments is in fact a derogation of the Chief On the same date (1 February 1989), the Commission on Appointments' Secretary
Executive's appointing power and therefore the grant of that authority to review a valid informed petitioner Bautista that the motion for reconsideration of the disapproval of
exercise of the executive power can never be presumed. It must be expressly granted. her "ad interim appointment as Chairman of the Commission on Human Rights" was
The Commission on Appointments has no jurisdiction under the Constitution to review denied by the Commission on Appointments. The letter reads as follows:
appointments by the President of Commissioners of the Commission on Human Rights. 1 February 1989
In view of the foregoing considerations, as Chairman of an independent constitutional ATTY. MARY CONCEPCION BAUTISTA
office. I cannot submit myself to the Commission on Appointments for the purpose of Commission on Human Rights
confirming or rejecting my appointment. Integrated Bar of the Philippines
Very truly yours, Bldg. Pasig, Metro Manila
MARY CONCEPCION BAUTISTA Dear Atty. Bautista:
Chairman 9 Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments,
In respondent Commission's comment (in this case), dated 3 February 1989, there is the denial by the Commission on Appointments, assembled in plenary (session) earlier
attached as Annex 1 a letter of the Commission on Appointments' Secretary to the today, of Senator Mamintal A.J. Tamano's motion for reconsideration of the disapproval
Executive Secretary, Hon. Catalino Macaraig, Jr. making reference to the "ad of your ad interim appointment as Chairperson of the Commission on Human Rights is
interim appointment which Her Excellency extended to Atty. Mary Concepcion respectfully conveyed.
Bautista on 14 January 1989 as Chairperson of the Commission on Human Thank you for your attention.
Rights" 10 and informing Secretary Macaraig that, as previously conveyed to him in a Very truly yours,
letter of 25 January 1989, the Commission on Appointments disapproved petitioner
60
RAOUL V. VICTORINO
Secretary 12
In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a
news item appearing in the 3 February 1989 issue of the "Manila Standard" reporting
that the President had designated PCHR Commissioner Hesiquio R. Mallillin as "Acting
Chairman of the Commission" pending the resolution of Bautista's case which had been
elevated to the Supreme Court. The news item is here quoted in full, thus —
Aquino names replacement for MaryCon
President Aquino has named replacement for Presidential Commission on Human
Rights Chairman Mary Concepcion Bautista whose appointment was rejected anew by
the Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R. Mallillin as acting
chairman of the Commission pending the resolution of Bautista's case which had been
elevated to the Supreme Court.
The President's action followed after Congressional Commission on Appointments
Chairman, Senate President Jovito Salonga declared Bautista can no longer hold on
to her position after her appointment was not confirmed for the second time.
For all practical purposes, Salonga said Bautista can be accused of usurpation of
authority if she insists to stay on her office.
In effect, the President had asked Bautista to vacate her office and give way to Mallillin
(Mari Villa) 13
On 20 January 1989, or even before the respondent Commission on Appointments had
acted on her "ad interimappointment as Chairman of the Commission on Human
Rights" petitioner Bautista filed with this Court the present petition for certiorari with a
prayer for the immediate issuance of a restraining order, to declare "as unlawful and
unconstitutional and without any legal force and effect any action of the Commission
on Appointments as well as of the Committee on Justice, Judicial and Bar Council and
Human Rights, on the lawfully extended appointment of the petitioner as Chairman of
the Commission on Human Rights, on the ground that they have no lawful and
constitutional authority to confirm and to review her appointment." 14
The prayer for temporary restraining order was "to enjoin the respondent Commission
on Appointments not to proceed further with their deliberation and/or proceedings on
the appointment of the petitioner ... nor to enforce, implement or act on any order,
resolution, etc. issued in the course of their deliberations." 15
Respondents were required to file comment within ten (10) days. 16 On 7 February
1989, petitioner filed an amended petition, with urgent motion for restraining order,
impleading Commissioner Hesiquio R. Mallillin the designated acting chairman as party
respondent and praying for the nullification of his appointment. The succeeding day, a
supplemental urgent ex-parte motion was filed by petitioner seeking to restrain
respondent Mallillin from continuing to exercise the functions of chairman and to refrain
from demanding courtesy resignations from officers or separating or dismissing
employees of the Commission.
Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the
Court resolved to issue a temporary restraining order directing respondent Mallillin to
cease and desist from effecting the dismissal, courtesy resignation, i removal and
reorganization and other similar personnel actions. 17 Respondents were likewise
required to comment on said amended petition with allowance for petitioner to file a
reply within two (2) days from receipt of a copy thereof.
Respondents Senator Salonga, the Commission on Appointments the Committee on J
& BC and Human Rights filed a comment to the amended petition on 21 February
1989. 18 Petitioner filed her reply. 19 On 24 February 1989, respondent Mallillin filed a
separate comment. 20 The Court required petitioner to reply to respondent Mallillin's
comment . 21Petitioner filed her reply. 22
In deference to the Commission on Appointments, an instrumentality of a co-ordinate
and co-equal branch of government, the Court did not issue a temporary restraining
order directed against it. However, this does not mean that the issues raised by the
petition, as met by the respondents' comments, will not be resolved in this case. The
Court will not shirk from its duty as the final arbiter of constitutional issues, in the same
way that it did not in Mison.
As disclosed by the records, and as previously adverted to, it is clear that petitioner
Bautista was extended by Her Excellency, the President a permanent appointment as
Chairman of the Commission on Human Rights on 17 December 1988. Before this
date, she was merely the "Acting Chairman" of the Commission. Bautista's
appointment on 17 December 1988 is an appointment that was for the President solely
to make, i.e., not an appointment to be submitted for review and confirmation (or
rejection) by the Commission on Appointments. This is in accordance with Sec. 16, Art.
VII of the 1987 Constitution and the doctrine in Mison which is here reiterated.
The threshold question that has really come to the fore is whether the President,
subsequent to her act of 17 December 1988, and after petitioner Bautista had qualified
for the office to which she had been appointed, by taking the oath of office and actually
assuming and discharging the functions and duties thereof, could extend another
appointment to the petitioner on 14 January 1989, an "ad interim appointment" as
termed by the respondent Commission on Appointments or any other kind of
appointment to the same office of Chairman of the Commission on Human Rights that
called for confirmation by the Commission on Appointments.
The Court, with all due respect to both the Executive and Legislative Departments of
government, and after careful deliberation, is constrained to hold and rule in the
negative. When Her Excellency, the President converted petitioner Bautista's
designation as Acting Chairman to a permanent appointment as Chairman of the
Commission on Human Rights on 17 December 1988, significantly she advised
61
Bautista (in the same appointment letter) that, by virtue of such appointment, she could
qualify and enter upon the performance of the duties of the office (of Chairman of the
Commission on Human Rights). All that remained for Bautista to do was to reject or
accept the appointment. Obviously, she accepted the appointment by taking her oath
of office before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and
assuming immediately thereafter the functions and duties of the Chairman of the
Commission on Human Rights. Bautista's appointment therefore on 17 December
1988 as Chairman of the Commission on Human Rights was a completed act on the
part of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the
celebrated case of Marbury vs. Madison. 23 The answer to this question seems an
obvious one. The appointment being the sole act of the President, must be completely
evidenced, when it is shown that he has done everything to be performed by him. Some
point of time must be taken when the power of the executive over an officer, not
removable at his will must cease. That point of time must be when the constitutional
power of appointment has been exercised. And this power has been exercised when
the last act, required from the person possessing the power, has been performed. ....
But having once made the appointment, his (the President's) power over the office is
terminated in all cases, where by law the officer is not removable by him. The right to
the office is then in the person appointed, and he has the absolute, unconditional power
of accepting or rejecting it.
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989
It is respondent Commission's submission that the President, after the appointment of
17 December 1988 extended to petitioner Bautista, decided to extend another
appointment (14 January 1989) to petitioner Bautista, this time, submitting such
appointment (more accurately, nomination) to the Commission on Appointments for
confirmation. And yet, it seems obvious enough, both in logic and in fact, that no new
or further appointment could be made to a position already filled by a previously
completed appointment which had been accepted by the appointee, through a valid
qualification and assumption of its duties. Respondent Commission vigorously
contends that, granting that petitioner's appointment as Chairman of the Commission
on Human Rights is one that, under Sec. 16, Art. VII of the Constitution, as interpreted
in the Mison case, is solely for the President to make, yet, it is within the president's
prerogative to voluntarily submit such appointment to the Commission on Appointment
for confirmation. The mischief in this contention, as the Court perceives it, lies in the
suggestion that the President (with Congress agreeing) may, from time to time move
power boundaries, in the Constitution differently from where they are placed by the
Constitution. The Court really finds the above contention difficult of acceptance.
Constitutional Law, to begin with, is concerned with power not political convenience,
wisdom, exigency, or even necessity. Neither the Executive nor the Legislative
(Commission on Appointments) can create power where the Constitution confers none.
The evident constitutional intent is to strike a careful and delicate balance, in the matter
of appointments to public office, between the President and Congress (the latter acting
through the Commission on Appointments). To tilt one side or the other of the scale is
to disrupt or alter such balance of power. In other words, to the extent that the
Constitution has blocked off certain appointments for the President to make with the
participation of the Commission on Appointments, so also has the Constitution
mandated that the President can confer no power of participation in the Commission
on Appointments over other appointments exclusively reserved for her by the
Constitution. The exercise of political options that finds no support in the Constitution
cannot be sustained. Nor can the Commission on Appointments, by the actual exercise
of its constitutionally delimited power to review presidential appointments, create power
to confirm appointments that the Constitution has reserved to the President alone.
Stated differently, when the appointment is one that the Constitution mandates is for
the President to make without the participation of the Commission on Appointments,
the executive's voluntary act of submitting such appointment to the Commission on
Appointments and the latter's act of confirming or rejecting the same, are done without
or in excess of jurisdiction. EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT
TO THE COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT UNDER
THE CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO
VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14 JANUARY 1989
Under this heading, we will assume, ex gratia argumenti, that the Executive may
voluntarily allow the Commission on Appointments to exercise the power of review over
an appointment otherwise solely vested by the Constitution in the President. Yet, as
already noted, when the President appointed petitioner Bautista on 17 December 1988
to the position of Chairman of the Commission on Human Rights with the advice to her
that by virtue of such appointment (not, until confirmed by the Commission on
Appointments), she could qualify and enter upon the performance of her duties after
taking her oath of office, the presidential act of appointment to the subject position
which, under the Constitution, is to be made, in the first place, without the participation
of the Commission on Appointments, was then and there a complete and finished act,
which, upon the acceptance by Bautista, as shown by her taking of the oath of office
and actual assumption of the duties of said office, installed her, indubitably and
unequivocally, as the lawful Chairman of the Commission on Human Rights for a term
of seven (7) years. There was thus no vacancy in the subject office on 14 January 1989
to which an appointment could be validly made. In fact, there is no vacancy in said
office to this day. Nor can respondents impressively contend that the new appointment
or re-appointment on 14 January 1989 was anad interim appointment, because, under
the Constitutional design, ad interim appointments do not apply to appointments solely
for the President to make, i.e., without the participation of the Commission on
Appointments. Ad interim appointments, by their very nature under the 1987
62
Constitution, extend only to appointments where the review of the Commission on
Appointments is needed. That is why ad interim appointments are to remain valid until
disapproval by the Commission on Appointments or until the next adjournment of
Congress; but appointments that are for the President solely to make, that is, without
the participation of the Commission on Appointments, can not be ad
interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE
OF THE CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS
SHALL BE AT THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without confirmation by the Commission on
Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights,
can be removed from said office at anytime, at the pleasure of the President; and that
with the disapproval of Bautista's appointment (nomination) by the Commission on
Appointments, there was greater reason for her removal by the President and her
replacement with respondent Mallillin Thus, according to respondent Mallillin the
petition at bar has become moot and academic.
We do not agree that the petition has become moot and academic. To insist on such a
posture is akin to deluding oneself that day is night just because the drapes are drawn
and the lights are on. For, aside from the substantive questions of constitutional law
raised by petitioner, the records clearly show that petitioner came to this Court in timely
manner and has not shown any indication of abandoning her petition.
Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987,
full text of which is as follows:
WHEREAS, the Constitution does not prescribe the term of office of the Chairman and
Members of the Commission on Human Rights unlike those of other Constitutional
Commissions;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do
hereby order:
SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby
amended to read as follows:
The Chairman and Members of the Commission on Human Rights shall be appointed
by the President. Their tenure in office shall be at the pleasure of the President.
SEC. 2. This Executive Order shall take effect immediately. DONE in the City of Manila,
this 30th day of June, in the year of Our Lord, nineteen hundred and eighty-seven.
(Sgd.) CORAZON C. AQUINO
President of the Philippines
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary 24
Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No.
163 25 was issued by the President, Sec. 2(c) of which provides:
Sec. 2(c). The Chairman and the Members of the Commission on Human Rights shall
be appointed by the President for a term of seven years without reappointment.
Appointments to any vacancy shall be only for the unexpired term of the predecessor.
It is to be noted that, while the earlier executive order (No. 163) speaks of a term of
office of the Chairman and Members of the Commission on Human Rights — which is
seven (7) years without reappointment — the later executive order (163-A) speaks of
the tenure in office of the Chairman and Members of the Commission on Human
Rights, which is "at the pleasure of the President."
Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief
Justice) Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated:
The distinction between "term" and "tenure" is important, for, pursuant to the
Constitution, "no officer or employee in the Civil Service may be removed or suspended
except for cause, as provided by law" (Art. XII, section 4), and this fundamental
principle would be defeated if Congress could legally make the tenure of some officials
dependent upon the pleasure of the President, by clothing the latter with blanket
authority to replace a public officer before the expiration of his term. 27
When Executive Order No. 163 was issued, the evident purpose was to comply with
the constitutional provision that "the term of office and other qualifications and
disabilities of the Members of the Commission (on Human Rights) shall be provided by
law" (Sec. 17(2), Art. XIII, 1987 Constitution).
As the term of office of the Chairman (and Members) of the Commission on Human
Rights, is seven (7) years, without reappointment, as provided by Executive Order No.
163, and consistent with the constitutional design to give the Commission the needed
independence to perform and accomplish its functions and duties, the tenure in
office of said Chairman (and Members) cannot be later made dependent on the
pleasure of the President.
Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra,
because the power of the President, sustained therein, to replace a previously
appointed vice-mayor of Roxas City given the express provision in Sec. 8, Rep. Act
No. 603 (creating the City of Roxas) stating that the vice-mayor shall serve at the
pleasure of the President, can find no application to the Chairman of an INDEPENDENT
OFFICE, created not by statute but by the Constitution itself. Besides, unlike in the Alba case,
here the Constitution has decreed that the Chairman and Members of the Commission on
Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and
created by the Constitution to be independent as the Commission on Human Rights-and vested
with the delicate and vital functions of investigating violations of human rights, pinpointing
responsibility and recommending sanctions as well as remedial measures therefor, can truly
function with independence and effectiveness, when the tenure in office of its Chairman and
63
Members is made dependent on the pleasure of the President. Executive Order No. 163-A,
being antithetical to the constitutional mandate of independence for the Commission on Human
Rights has to be declared unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its
constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point
to its being plainly at war with the constitutional intent of independence for the Commission.
Thus —
MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this body to be
constitutionalized is the fact that regardless of who is the President or who holds the executive
power, the human rights issue is of such importance that it should be safeguarded and it should
be independent of political parties or powers that are actually holding the reins of government.
Our experience during the martial law period made us realize how precious those rights are
and, therefore, these must be safeguarded at all times.
MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the power of
the Commission on Human Rights to be coterminous with the president, because the
President's power is such that if he appoints a certain commissioner and that commissioner is
subject to the President, therefore, any human rights violations committed under the person's
administration will be subject to presidential pressure. That is what we would like to avoid — to
make the protection of human rights go beyond the fortunes of different political parties or
administrations in power. 28
MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable Chief
Justice Concepcion and retired Justice J.B.L. Reyes and they believe that there should be an
independent Commission on Human Rights free from executive influence because many of the
irregularities on human rights violations are committed by members of the armed forces and
members of the executive branch of the government. So as to insulate this body from political
interference, there is a need to constitutionalize it. 29
MR. SARMIENTO: On the inquiry on whether there is a need for this to be constitutionalized, I
would refer to a previous inquiry that there is still a need for making this a constitutional body
free or insulated from interference. I conferred with former Chief Justice Concepcion and the
acting chairman of the Presidential Committee on Human Rights, retired Justice J.B.L. Reyes,
and they are one in saying that this body should be constitutionalized so that it will be free from
executive control or interferences, since many of the abuses are committed by the members of
the military or the armed forces. 30
MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we leave it to
Congress, this commission will be within the reach of politicians and of public officers and that
to me is dangerous. We should insulate this body from political control and political interference
because of the nature of its functions to investigate all forms of human rights violations which
are principally committed by members of the military, by the Armed Forces of the Philippines. 31
MR. GARCIA. The critical factor here is political control, and normally, when a body is appointed
by Presidents who may change, the commission must remain above these changes in political
control. Secondly, the other important factor to consider are the armed forces, the police forces
which have tremendous power at their command and, therefore, we would need a commission
composed of men who also are beyond the reach of these forces and the changes in political
administration. 32
MR MONSOD. Yes, It is the committee's position that this proposed special body, in order to
function effectively, must be invested with an independence that is necessary not only for its
credibility but also for the effectiveness of its work. However, we want to make a distinction in
this Constitution. May be what happened was that it was referred to the wrong committee. In
the opinion of the committee, this need not be a commission that is similar to the three
constitutional commissions like the COA, the COMELEC, and the Civil Service. It need not be
in that article. 33
MR. COLAYCO. The Commissioners earlier objection was that the Office of the President is
not involved in the project. How sure are we that the next President of the Philippines will be
somebody we can trust? Remember, even now there is a growing concern about some of the
bodies, agencies and commission created by President Aquino. 34
.... Leaving to Congress the creation of the Commission on Human Rights is giving less
importance to a truly fundamental need to set up a body that will effectively enforce the rules
designed to uphold human rights. 35
PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE
To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of
Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the
President on 17 December 1988, and her acceptance thereof, is not to say that she cannot be
removed from office before the expiration of her seven (7) year term. She certainly can be
removed but her removal must be for cause and with her right to due process properly
safeguarded. In the case of NASECO vs. NLRC, 36 this Court held that before a rank-and-file
employee of the NASECO, a government-owned corporation, could be dismissed, she was
entitled to a hearing and due process. How much more, in the case of the Chairman of
a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights.
If there are charges against Bautista for misfeasance or malfeasance in office, charges may be
filed against her with the Ombudsman. If he finds a prima facie case against her, the
corresponding information or informations can be filed with the Sandiganbayan which may in
turn order her suspension from office while the case or cases against her are pending before
said court. 37 This is due process in action. This is the way of a government of laws and not of
men.
A FINAL WORD
It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista
had elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman
for the Commission on Human Rights (pending decision in this case) instead of appointing
another permanent Chairman. The latter course would have added only more legal difficulties
to an already difficult situation.
WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the
duly appointed Chairman of the Commission on Human Rights and the lawful incumbent
thereof, entitled to all the benefits, privileges and emoluments of said office. The temporary
restraining order heretofore issued by the Court against respondent Mallillin enjoining him from
dismissing or terminating personnel of the Commission on Human Rights is made permanent.
SO ORDERED.
64
 Executive Secretary
G.R. No. 83216 September 4, 1989 On April 18, 1988, the above-mentioned sectoral representatives were scheduled to
TERESITA QUINTOS-DELES, GLORIA T. ARAGON (M.D.), LOURDES V. take their oaths before Speaker Ramon V. Mitra, Jr. at the Session Hall of Congress
MASTURA, TRINIDAD A. GOMEZ, ADUL DE LEON, JOSEFINA AZARCON-DELA after the Order of Business. However, petitioner and the three other sectoral
CRUZ, TRINIDAD M. DOMINGO, MARIA MAYET T. LEDANO, LOLIT ANTONIO, ET representatives- appointees were not able to take their oaths and discharge their duties
AL., petitioners, as members of Congress due to the opposition of some congressmen-members of the
vs. Commission on Appointments, who insisted that sectoral representatives must first be
THE COMMISSION ON CONSTITUTIONAL COMMISSIONS, AND OFFICES (C.A.), confirmed by the respondent Commission before they could take their oaths and/or
COMMISSION ON APPOINTMENTS, THE SECRETARY GENERAL OF THE assume office as members of the House of Representatives. This opposition compelled
HOUSE OF REPRESENTATIVES, THE CHIEF ACCOUNTANT OF THE HOUSE OF Speaker Ramon V. Mitra, Jr. to suspend the oath-taking of the four sectoral
REPRESENTATIVES, ET AL., respondents. representatives.
In view of this development, Executive Secretary Catalino Macaraig, Jr. transmitted on
BIDIN, J.: April 25,1988, a letter dated April 11, 1988 of the President addressed to the
This is a special civil action for prohibition and mandamus with injunction seeking to Commission on Appointments submitting for confirmation the appointments of the four
compel respondent Commission on Appointments to allow petitioner Teresita Quintos- sectoral representatives as follows:
Deles to perform and discharge her duties as a member of the House of l1 April 1988
Representatives representing the Women's Sector and to restrain respondents from The Honorable
subjecting petitioner's appointment to the confirmation process. Jovito R. Salonga
The antecedent facts which gave rise to this petition are as follows: The Senate President and
On April 6, 1988, petitioner and three others were appointed Sectoral Representatives The Members of the Commission
by the President pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, on Appointments
Section 7 of the Constitution. Executive Secretary Catalino Macaraig, Jr. transmitted Congress of the Philippines
by letter, also dated April 6,1988 (Annex L) the appointment of the said sectoral Manila
representatives to Speaker Ramon Mitra, Jr. as follows: Gentlemen:
April 6, 1988 Pursuant to Article VII, Section 16, paragraph 2, and Article XVIII, Section 7, of the
Hon. Ramon V. Mitra, Jr. Constitution, I hereby submit, for confirmation, the appointments of the following
Speaker, House of Representatives persons as Members of the House of Representatives representing the sectors
Quezon City indicated opposite their respective names:
S i r: TERESITA QUINTOS-DELES — Women
Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of the AL IGNATIUS G. LOPEZ — Youth
Constitution, the President has appointed the following persons to the seats reserved BARTOLOME ARTECHE — Peasant
for sectoral representatives in paragraph (1), Section 5 of Article VI of the Constitution: REY MAGNO TEVES — Urban Poor
1. Teresita Quintos-Deles —-Women An early confirmation of their appointments will be appreciated.
2. Al Ignatius G. Lopez —Youth Very truly yours,
3. Bartolome Arteche —-Peasant (Sgd) Corazon C. Aquino
4. Rey Magno Teves —-Urban Poor Meanwhile, petitioner in a letter dated April 22, 1988 addressed to Speaker Ramon V.
Copies of their appointments are enclosed. Mitra, Jr. (Annex V) appealed to the House of Representatives alleging, among others,
With best wishes. that since 41 no attempt was made to subject the sectoral representatives* already
Very truly yours, sitting to the confirmation process, there is no necessity for such confirmation and
(SGD.) CATALINO MACARAIG JR subjection thereto of the present batch would certainly be discriminatory."
65
In reply, Speaker Mitra in a letter dated May 2, 1988 (Annex BB) informed petitioner
that since "President Corazon C. Aquino has submitted your appointment to the
Commission on Appointments for confirmation in a letter dated April 11, 1988, . . . the
Commission on Appointments now has sole jurisdiction over the matter."
On May 10, 1988, petitioner Deles received an invitation dated May 6, 1988 to attend
a Commission on Appointments Committee Meeting scheduled for May 12, 1988 for
the deliberation of her appointment as sectoral representative for women (Annex DD).
Petitioner sent a reply dated May 11, 1988 explaining her position and questioning the
jurisdiction of the Commission on Appointments over the appointment of sectoral
representatives (Annex EE).
In the May 12,1988 meeting of the Committee of the Constitutional Commissions and
Offices of the Commission on Appointments, chaired by Sen. Edgardo J. Angara, the
Committee ruled against the position of petitioner Deles.
Hence, this petition for prohibition and mandamus praying that respondent
Commission on Appointments be enjoined from subjecting to confirmation process the
petitioner's appointment as sectoral representative for the women's sector and as
member of Congress.
Petitions in intervention were likewise filed by Estefania Aldaba Lim, et al. (Rollo, p.
147); Ma. Iris Melizza, et al. (Rollo, p. 172); Margarita Gomez, et al. (Rollo, p. 186);
Hernani Panganiban, et al. (Rollo, p. 208); Presentacion Castro, et al. (Rollo, p. 215);
Sr. Teresa Dagdag, et al. (Rollo, p. 251); and Civil Liberties Union (Rollo, p. 274).
Petitioner Teresita Quintos-Deles contends that her appointment as Sectoral
Representative for Women by the President pursuant to Section 7, Article XVIII of the
Constitution, does not require confirmation by the Commission on Appointments to
qualify her to take her seat in the House of Representatives.
The opposite view is taken by the Solicitor General in his Statement of Position (In lieu
of Comment), dated July 15,1988 (Rollo, p. 206) in this wise: "In view of the President's
submission d the four sectoral representatives, the petitioner included, to the
Commission on Appointments by letter dated April 11, 1988, then confirmation by the
Commission on Appointments is required."
On August 15, 1988, respondent Commission on Appointments, in addition to adopting
the Statement of Position (in lieu of Comment) submitted by the Solicitor General,
likewise submitted its own Statement of Position (In lieu of Comment) and further
manifested that (1) the appointment of petitioner Deles was not acted upon by the
Commission on Appointments when Congress went into recess as required by the
Constitution; (2) the case of petitioner Deles for appointment as sectoral representative
to the House of Representatives has become moot and academic not having been
finally acted upon at the close of the session of Congress pursuant to See. 23 of the
Rules of the Commission (Rollo, pp. 233-234) which reads as follows:
Section 23. Suspension of Consideration of Nomination or Appointments to be
Returned to the President.- Nominations or appointments submitted by the President
of the Philippines which are not finally acted upon at the close of the session of
Congress shall be returned to the President, and unless resubmitted, shall not again
be considered by the Commission.
On January 31, 1989, the Court after noting the reply filed by the petitioner and the
rejoinder filed by respondents, resolved to give due course to the petition and the
parties were required to submit their respective memoranda (Rollo, p. 309). By way of
manifestation and motion dated March 9, 1989 (Rollo, p. 311), the Office of the Solicitor
General adopted its statement of position (in lieu of comment) and rejoinder as its
memorandum. Petitioners and intervenor Civil Liberties Union submitted their
memoranda on March 22, 1989 and March 30, 1989, respectively. A supplemental
statement of position (in lieu of memorandum) dated March 31, 1989 was filed by
respondent Commission.
The Constitution provides that the House of Representatives shall be composed of not
more than two hundred fifty (250) members, unless otherwise fixed by law, who shall
be elected from the legislative districts and those who as provided by law, shall be
elected thru a party-list system. The party-list representatives shall constitute 20% of
the total number of representatives or fifty (50) seats. One-half or twenty-five (25) of
the seats allocated to party-list representatives is reserved for sectoral representatives.
The reservation is limited to three consecutive terms after ratification of the 1987
Constitution. Thus, Section 5 (1) and (2), Article VI of the 1987 Constitution provides:
SEC. 5. (1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional, and sectoral parties
or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number
of representatives including those under the party-list. For three consecutive terms
after the ratification of this Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or election from the
labor, peasant, urban poor, indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious sector.
Under Section 7, Article XVIII of the Constitution, the appointment of sectoral
representatives is vested upon the President until otherwise provided by law, as
follows:
66
SEC. 7. Until a law is passed, the President may fill by appointment from a list of
nominees by the respective sectors the seats reserved for sectoral representation in
paragraph (1), Section 5 of Article VI of this Constitution.
The issue is, whether the Constitution requires the appointment of sectoral
representatives to the House of Representatives to be confirmed by the Commission
on Appointments. Section 16, Article VII of the Constitution enumerates among others,
the officers who may be appointed by the President with the consent of the Commission
on Appointments, as follows:
SEC. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
In Sarmiento vs. Mison, et al. (156 SCRA 549 [19871), we construed Section 16, Article
VII of the Constitution to mean that only appointments to offices mentioned in the first
sentence of the said Section 16, Article VII require confirmation by the Commission on
Appointments, as follows:
It is readily apparent that under the provisions of the 1987 Constitution, just quoted,
there are four (4) groups of officers whom the President shall appoint. These four (4)
groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers and
consuls officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution;
Second, all other officers of the Government whose appointments are not otherwise
provided for by law;
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank whose appointments the Congress may by law vest in the
President alone.
The first group of officers is clearly appointed with the consent of the Commission on
Appointments. Appointments of such officers are initiated by nomination and, if the
nomination is confirmed by the Commission on Appointments, the President appoints.
xxx xxx xxx
(T)he purposive intention and deliberate judgment of the framers of the 1987
Constitution (is) that, except as to those officers whose appointments require the
consent of the Commission on Appointments by express mandate of the first sentence
in Sec. 16, Art. VII, appointments of other officers are left to the President without need
of confirmation by the Commission on Appointments. This conclusion is inevitable, if
we are to presume, as we must, that the framers of the 1987 Constitution were
knowledgeable of what they were doing and of the foreseeable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character.
Limitations on or qualifications of such power should be strictly construed against them.
Such limitations or qualifications must be clearly stated in order to be recognized. But,
it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that
appointments by the President to the positions therein enumerated require the consent
of the Commission on Appointments.
Our ruling in Mison was reiterated in the recent case of Mary Concepcion Bautista vs.
Sen. Jovito Salonga, et al. (G.R. No. 86439, promulgated on April 13, 1989) wherein
the Court held:
The Mison case was the first major case under the 1987 Constitution and in
constructing Sec. 16, Art. VII of the 1987 Constitution, ... this Court, drawing extensively
from the proceedings of the 1986 Constitutional Commission and the country's
experience under the 1935 and 1973 Constitutions, held that only those appointments
expressly mentioned in the first sentence of See. 16, Art. VII are to be reviewed by the
Commission on Appointments, namely, 'the heads of the executive departments,
ambassadors, other public ministers and consuls or officers of the armed forces from
the rank of colonel or naval captain, and other officers whose appointments are vested
in him in this Constitution.' All other appointments by the President are to be made
without the participation of the Commission on Appointments.
Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI
may be filled by appointment by the President by express provision of Section 7, Art.
XVIII of the Constitution, it is undubitable that sectoral representatives to the House of
Representatives are among the "other officers whose appointments are vested in the
President in this Constitution," referred to in the first sentence of Section 16, Art. VII
whose appointments are subject to confirmation by the Commission on Appointments
(Sarmiento v. Mison, supra).
Nevertheless, there are appointments vested in the President in the Constitution which,
by express mandate of the Constitution, require no confirmation such as appointments
of members of the Supreme Court and judges of lower courts (Sec. 9, Art. VIII) and the
Ombudsman and his deputies (Sec. 9, Art. XI). No such exemption from confirmation
had been extended to appointments of sectoral representatives in the Constitution.
Petitioner was appointed on April 6, 1988 pursuant to Art. XVIII, Section 7 and Art. VII,
Section 16, paragraph 2 of the Constitution, to wit:
67
6 April 1988 the Rules of respondent Commission and "unless resubmitted shall not again be
Madam: considered by the Commission."
Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of the Petitioners further contend that nowhere in the Constitution nor in Executive Order No.
Constitution, you are hereby appointed MEMBER OF THE HOUSE OF 198 is mention made of the need for petitioner's appointment to be submitted to the
REPRESENTATIVES. Commission on Appointments for confirmation. Executive Order No. 198 promulgated
By virtue hereof, you may qualify to said position furnishing this office with copies of on June 18, 1687 before the convening of Congress, is denominated: "Providing for
your oath of office. the Manner of Nomination and Appointment of Sectoral Representatives to the House
Very truly yours, of Representatives." We agree with the submission of respondent Commission that the
(Sgd.) CORAZON C. AQUINO provisions of Executive Order No. 198 do not deal with the manner of appointment of
Hon. TERESITA QUINTOS-DELES sectoral representatives. Executive Order No. 1 98 confines itself to specifying the
(Annex "M", Petition, Rollo, p. 108.) sectors to be represented, their number, and the nomination of such sectoral
The invocation of Art. XVIII, Section 7 of the Constitution as authority for the representatives.
appointment of petitioner places said appointment within the ambit of the first sentence The power of the President to appoint sectoral representatives remains directly derived
of Section 16, Art. VII; hence, subject to confirmation by the Commission on from Section 7, Article XVIII of the Constitution which is quoted in the second "Whereas'
Appointments under the Mison doctrine. Petitioner's appointment was furthermore clause of Executive Order No. 198. Thus, appointments by the President of sectoral
made pursuant to Art. VII, Section 16, paragraph 2 which provides: representatives require the consent of the Commission on Appointments in accordance
SEC. 16. ... with the first sentence of Section 16, Art. VII of the Constitution. More to the point,
The President shall have the power to make appointments during the recess of the petitioner Deles' appointment was issued not by virtue of Executive Order No. 198 but
Congress, whether voluntary or compulsory, but such appointments shall be effective pursuant to Art. VII, Section 16, paragraph 2 and Art. XVIII, Section 7 of the Constitution
only until disapproval by the Commission on Appointments or until the next which require submission to the confirmation process.
adjournment of the Congress. WHEREFORE, the petition for prohibition and mandamus with preliminary injunction is
The reference to paragraph 2, Section 16 of Article VII as additional authority for the hereby DISMISSED for lack of merit. Without pronouncement as to costs.
appointment of petitioner is of vital significance to the case at bar. The records show SO ORDERED.
that petitioner's appointment was made on April 6, 1988 or while Congress was in
recess (March 26, 1988 to April 17, 1988); hence, the reference to the said paragraph
2 of Section 16, Art. VII in the appointment extended to her.
Implicit in the invocation of paragraph 2, Section 16, Art. VII as authority for the
appointment of petitioner is, the recognition by the President as appointing authority
that petitioner's appointment requires confirmation by the Commission on
Appointments. Under paragraph 2, Section 16, Art. VII, appointments made by the
President pursuant thereto "shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the Congress." If indeed
appointments of sectoral representatives need no confirmation, the President need not
make any reference to the constitutional provisions above-quoted in appointing the
petitioner, As a matter of fact, the President in a letter dated April 11, 1989 had
expressly submitted petitioner's appointment for confirmation by the Commission on
Appointments. Considering that Congress had adjourned without respondent
Commission on Appointments having acted on petitioner's appointment, said
appointment/nomination had become moot and academic pursuant to Section 23 of

68
G.R. No. 91636 April 23, 1992
PETER JOHN D. CALDERON, petitioner,
vs.
BARTOLOME CARALE, in his capacity as Chairman of the National Labor
Relations Commission, EDNA BONTO PEREZ, LOURDES C. JAVIER, ERNESTO
G. LADRIDO III, MUSIB M. BUAT, DOMINGO H. ZAPANTA, VICENTE S.E. VELOSO
III, IRENEO B. BERNARDO, IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO
B. PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN
and OSCAR N. ABELLA, in their capacity as Commissioners of the National
Labor Relations Commission, and GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, respondents.
PADILLA, J.:
Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which
provides:
Sec. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress. 1
The power of the Commission on Appointments (CA for brevity) to confirm
appointments, contained in the aforequoted paragraph 1 of Sec. 16, Art. VII, was first
construed in Sarmiento III vs. Mison 2 as follows:
. . . it is evident that the position of Commissioner of the Bureau of Customs (a bureau
head) is not one of those within the first group of appointments where the consent of
the Commission on Appointments is required. As a matter of fact, as already pointed
out, while the 1935 Constitution includes "heads of bureaus" among those officers
whose appointments need the consent of the Commission on Appointments, the 1987
Constitution, on the other hand, deliberately excluded the position of "heads of
bureaus" from appointments that need the consent (confirmation) of the Commission
on Appointments.
. . . Consequently, we rule that the President of the Philippines acted within her
constitutional authority and power in appointing respondent Salvador Mison,
Commissioner of the Bureau of Customs, without submitting his nomination to the
Commission on Appointments for confirmation. . . .
. . . In the 1987 Constitution, however, as already pointed out, the clear and expressed
intent of its framers was to exclude presidential appointments from confirmation by the
Commission on Appointments, except appointments to offices expressly mentioned in
the first sentence of Sec. 16, Art. VII. Consequently, there was no reason to use in the
third sentence of Sec. 16, Article VII the word "alone" after the word "President" in
providing that Congress may by law vest the appointment of lower-ranked officers in
the President alone, or in the courts, or in the heads of departments, because the power
to appoint officers whom he (the president) may be authorized by law to appoint is
already vested in the President, without need of confirmation by the Commission on
Appointments, in the second sentence of the same Sec. 16, Article VII." (emphasis
supplied)
Next came Mary Concepcion Bautista v. Salonga, 3 this time involving the appointment
of the Chairman of the Commission on Human Rights. Adhering to the doctrine
in Mison, the Court explained:
. . . Since the position of Chairman of the Commission on Human Rights is not among
the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987
Constitution, appointments to which are to be made with the confirmation of the
Commission on Appointments, it follows that the appointment by the President of the
Chairman of the CHR is to be made without the review or participation of the
Commission on Appointments. To be more precise, the appointment of the Chairman
and Members of the Commission on Human Rights is not specifically provided for in
the Constitution itself, unlike the Chairmen and Members of the Civil Service
Commission, the Commission on Elections and the Commission on Audit, whose
appointments are expressly vested by the Constitution in the president with the consent
of the Commission on Appointments. The president appoints the Chairman and
Members of The Commission on Human Rights pursuant to the second sentence in
Section 16, Art. VII, that is, without the confirmation of the Commission on
Appointments because they are among the officers of government "whom he (the
President) may be authorized by law to appoint." And Section 2(c), Executive Order
No. 163, 5 May 1987, authorizes the President to appoint the Chairman and Members
of the Commission on Human Rights.
Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, et
al. v. The Commission on Constitutional Commissions, et al., 4 the power of
confirmation of the Commission on Appointments over appointments by the President
of sectoral representatives in Congress was upheld because:
69
. . . Since the seats reserved for sectoral representatives in paragraph 2, Section 5,
Art. VI may be filled by appointment by the President by express provision of Section
7, Art. XVIII of the Constitution, it is indubitable that sectoral representatives to the
House of Representatives are among the "other officers whose appointments are
vested in the President in this Constitution," referred to in the first sentence of Section
16, Art. VII whose appointments are subject to confirmation by the Commission on
Appointments.
From the three (3) cases above-mentioned, these doctrines are deducible:
1. Confirmation by the Commission on Appointments is required only for presidential
appointees mentioned in the first sentence of Section 16, Article VII, including, those
officers whose appointments are expressly vested by the Constitution itself in the
president (like sectoral representatives to Congress and members of the constitutional
commissions of Audit, Civil Service and Election).
2. Confirmation is not required when the President appoints other government officers
whose appointments are not otherwise provided for by law or those officers whom he
may be authorized by law to appoint (like the Chairman and Members of the
Commission on Human Rights). Also, as observed in Mison, when Congress creates
inferior offices but omits to provide for appointment thereto, or provides in an
unconstitutional manner for such appointments, the officers are considered as among
those whose appointments are not otherwise provided for by law.
Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code
(PD 442) was approved. It provides in Section 13 thereof as follows:
xxx xxx xxx
The Chairman, the Division Presiding Commissioners and other Commissioners shall
all be appointed by the President, subject to confirmation by the Commission on
Appointments. Appointments to any vacancy shall come from the nominees of the
sector which nominated the predecessor. The Executive Labor Arbiters and Labor
Arbiters shall also be appointed by the President, upon recommendation of the
Secretary of Labor and Employment, and shall be subject to the Civil Service Law,
rules and regulations. 5
Pursuant to said law (RA 6715), President Aquino appointed the Chairman and
Commissioners of the NLRC representing the public, workers and employers sectors.
The appointments stated that the appointees may qualify and enter upon the
performance of the duties of the office. After said appointments, then Labor Secretary
Franklin Drilon issued Administrative Order No. 161, series of 1989, designating the
places of assignment of the newly appointed commissioners.
This petition for prohibition questions the constitutionality and legality of the permanent
appointments extended by the President of the Philippines to the respondents
Chairman and Members of the National Labor Relations Commission (NLRC), without
submitting the same to the Commission on Appointments for confirmation pursuant to
Art. 215 of the Labor Code as amended by said RA 6715.
Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the
presumption of validity. RA 6715 is not, according to petitioner, an encroachment on
the appointing power of the executive contained in Section 16, Art. VII, of the
Constitution, as Congress may, by law, require confirmation by the Commission on
Appointments of other officers appointed by the President additional to those
mentioned in the first sentence of Section 16 of Article VII of the Constitution. Petitioner
claims that the Mison and Bautista rulings are not decisive of the issue in this case for
in the case at bar, the President issued permanent appointments to the respondents
without submitting them to the CA for confirmation despite passage of a law (RA 6715)
which requires the confirmation by the Commission on Appointments of such
appointments.
The Solicitor General, on the other hand, contends that RA 6715 which amended the
Labor Code transgressesSection 16, Article VII by expanding the confirmation powers
of the Commission on Appointments without constitutional
basis. Mison and Bautista laid the issue to rest, says the Solicitor General, with the
following exposition:
As interpreted by this Honorable Court in the Mison case, confirmation by the
Commission on Appointments is required exclusively for the heads of executive
departments, ambassadors, public ministers, consuls, officers of the armed forces from
the rank of colonel or naval captain, and other officers whose appointments are vested
in the President by the Constitution, such as the members of the various Constitutional
Commissions. With respect to the other officers whose appointments are not otherwise
provided for by the law and to those whom the President may be authorized by law to
appoint, no confirmation by the Commission on Appointments is required.
Had it been the intention to allow Congress to expand the list of officers whose
appointments must be confirmed by the Commission on Appointments, the Constitution
would have said so by adding the phrase "and other officers required by law" at the
end of the first sentence, or the phrase, "with the consent of the Commission on
Appointments" at the end of the second sentence. Evidently, our Constitution has
significantly omitted to provide for such additions.
The original text of Section 16 of Article VII of the present Constitution as embodied in
Resolution No. 517 of the Constitutional Commission reads as follows:
"The President shall nominate and, with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
ambassadors, other public ministers and consuls, or officers of the armed forces from
the rank of captain or commander, and all other officers of the Government whose
appointments are not herein otherwise provided for by law, and those whom he may
70
be authorized by law to appoint. The Congress may by law vest the appointment of
inferior officers in the President alone, in the courts or in the heads of the department."
Three points should be noted regarding sub-section 3 of Section 10 of Article VII of the
1935 Constitution and in the original text of Section 16 of Article VII of the present
Constitution as proposed in Resolution No. 517.
First, in both of them, the appointments of heads of bureaus were required to be
confirmed by the Commission on Appointments.
Second, in both of them, the appointments of other officers, "whose appointments are
not otherwise provided for by law to appoint" are expressly made subject to
confirmation by the Commission on Appointments. However, in the final version of
Resolution No. 517, as embodied in Section 16 of Article VII of the present Constitution,
the appointment of the above mentioned officers (heads of bureaus; other officers
whose appointments are not provided for by law; and those whom he may be
authorized by law to appoint) are excluded from the list of those officers whose
appointments are to be confirmed by the Commission on Appointments. This
amendment, reflected in Section 16 of Article VII of the Constitution, clearly shows the
intent of the framers to exclude such appointments from the requirement of
confirmation by the Commission on Appointments.
Third, under the 1935 Constitution the word "nominate" qualifies the entire Subsection
3 of Section 10 of Article VII thereof.
Respondent reiterates that if confirmation is required, the three (3) stage process of
nomination, confirmation and appointment operates. This is only true of the first group
enumerated in Section 16, but the word nominate does not any more appear in the 2nd
and 3rd sentences. Therefore, the president's appointment pursuant to the 2nd and 3rd
sentences needs no confirmation. 6
The only issue to be resolved by the Court in the present case is whether or not
Congress may, by law, require confirmation by the Commission on Appointments of
appointments extended by the president to government officers additional to those
expressly mentioned in the first sentence of Sec. 16, Art. VII of the Constitution whose
appointments require confirmation by the Commission on Appointments.
To resolve the issue, we go back to Mison where the Court stated:
. . . there are four (4) groups of officers whom the President shall appoint. These four
(4) groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in him in this Constitution;
Second, all other officers of the Government whose appointments are not otherwise
provided for by law;
Third, those whom the president may be authorized by law to appoint;
Fourth, officers lower in rank whose appointments the Congress may by law vest in the
President alone. 7
Mison also opined:
In the course of the debates on the text of Section 16, there were two (2) major changes
proposed and approved by the Commission. These were (1) the exclusion of the
appointments of heads of bureaus from the requirement of confirmation by the
Commission on Appointments; and (2) the exclusion of appointments made under the
second sentence of the section from the same requirement. . . .
The second sentence of Sec. 16, Art. VII refers to all other officers of the government
whose appointments are not otherwise provided for by law and those whom the
President may be authorized by law to appoint.
Indubitably, the NLRC Chairman and Commissioners fall within the second sentence
of Section 16, Article VII of the Constitution, more specifically under the "third groups"
of appointees referred to in Mison, i.e. those whom the President may be authorized
by law to appoint. Undeniably, the Chairman and Members of the NLRC are not among
the officers mentioned in the first sentence of Section 16, Article VII whose
appointments requires confirmation by the Commission on Appointments. To the extent
that RA 6715 requires confirmation by the Commission on Appointments of the
appointments of respondents Chairman and Members of the National Labor Relations
Commission, it is unconstitutional because:
1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by
adding thereto appointments requiring confirmation by the Commission on
Appointments; and
2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution,
by imposing the confirmation of the Commission on Appointments on appointments
which are otherwise entrusted only with the President.
Deciding on what laws to pass is a legislative prerogative. Determining their
constitutionality is a judicial function. The Court respects the laudable intention of the
legislature. Regretfully, however, the constitutional infirmity of Sec. 13 of RA 6715
amending Art. 215 of the Labor Code, insofar as it requires confirmation of the
Commission on Appointments over appointments of the Chairman and Member of the
National Labor Relations Commission (NLRC) is, as we see it, beyond redemption if
we are to render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof.
Supreme Court decisions applying or interpreting the Constitution shall form part of the
legal system of the Philippines. 8 No doctrine or principle of law laid down by the Court
in a decision rendered en banc or in division may be modified or reversed except by
the Court sitting en banc. 9
. . . The interpretation upon a law by this Court constitutes, in a way, a part of the law
as of the date that law was originally passed, since this Court's construction merely
establishes the contemporaneous legislative intent that the law thus construed intends
71
to effectuate. The settled rule supported by numerous authorities is a restatement of
the legal maxim "legis interpretado legis vim obtinent" — the interpretation placed upon
the written law by a competent court has the force of law.10
The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16
consistently in one manner. Can legislation expand a constitutional provision after the
Supreme Court has interpreted it?
In Endencia and Jugo vs. David, 11 the Court held:
By legislative fiat as enunciated in Section 13, Republic Act No. 590, Congress says
that taxing the salary of a judicial officer is not a decrease of compensation. This is a
clear example of interpretation or ascertainment of the meaning of the phrase "which
shall not be diminished during their continuance in office," found in Section 9, Article
VIII of the Constitution, referring to the salaries of judicial officers.
xxx xxx xxx
The rule is recognized elsewhere that the legislature cannot pass any declaratory act,
or act declaratory of what the law was before its passage, so as to give it any binding
weight with the courts. A legislative definition of a word as used in a statute is not
conclusive of its meaning as used elsewhere; otherwise, the legislature would be
usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis supplied).
The legislature cannot, upon passing law which violates a constitutional provision,
validate it so as to prevent an attack thereon in the courts, by a declaration that it shall
be so construed as not to violate the constitutional inhibition. (11 Am., Jur., 919,
emphasis supplied).
We have already said that the Legislature under our form of government is assigned
the task and the power to make and enact laws, but not to interpret them. This is more
true with regard to the interpretation of the basic law, the Constitution, which is not
within the sphere of the Legislative department. If the Legislature may declare what a
law means, or what a specific portion of the Constitution means, especially after the
courts have in actual case ascertained its meaning by interpretation and applied it in a
decision, this would surely cause confusion and instability in judicial processes and
court decisions. Under such a system, a final court determination of a case based on
a judicial interpretation of the law or of the Constitution may be undermined or even
annulled by a subsequent and different interpretation of the law or of the Constitution
by the Legislative department that would be neither wise nor desirable, being clearly
violative of the fundamental principles of our constitutional system of government,
particularly those governing the separation of powers. 14(Emphasis supplied)
Congress, of course, must interpret the Constitution, must estimate the scope of its
constitutional powers when it sets out to enact legislation and it must take into account
the relevant constitutional prohibitions. 15
. . . The Constitution did not change with public opinion.
It is not only the same words, but the same in meaning . . . and as long as it it speaks
not only in the same words, but with the same meaning and intent with which it spoke
when it came from the hands of its framers, and was voted and adopted by the people
. . . 16
The function of the Court in passing upon an act of Congress is to "lay the article of the
Constitution which is invoked beside the statute which is challenged and to decide
whether the latter squares with the former" and to "announce its considered judgment
upon the question." 17
It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately,
not unconsciously, intended by the framers of the 1987 Constitution to be a departure
from the system embodied in the 1935 Constitution where the Commission on
Appointments exercised the power of confirmation over almost all presidential
appointments, leading to many cases of abuse of such power of confirmation.
Subsection 3, Section 10, Art. VII of the 1935 Constitution provided:
3. The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank
of captain or commander, and all other officers of the Government whose appointments
are not herein otherwise provided for, and those whom he may be authorized by law
to appoint; . . .
The deliberate limitation on the power of confirmation of the Commission on
Appointments over presidential appointments, embodied in Sec. 16, Art. VII of the 1987
Constitution, has undoubtedly evoked the displeasure and disapproval of members of
Congress. The solution to the apparent problem, if indeed a problem, is not judicial or
legislative but constitutional. A future constitutional convention or Congress sitting as
a constituent (constitutional) assembly may then consider either a return to the 1935
Constitutional provisions or the adoption of a hybrid system between the 1935 and
1987 constitutional provisions. Until then, it is the duty of the Court to apply the 1987
Constitution in accordance with what it says and not in accordance with how the
legislature or the executive would want it interpreted.
WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by
RA 6715 insofar as it requires the confirmation of the Commission on Appointments of
appointments of the Chairman and Members of the National Labor Relations
Commission (NLRC) is hereby declared unconstitutional and of no legal force and
effect.
SO ORDERED.
72
G.R. No. 111243 May 25, 1994
JESUS ARMANDO A.R. TARROSA, petitioner,
vs.
GABRIEL C. SINGSON and HON. SALVADOR M. ENRIQUEZ III, respondents
Marlon B. Llaunder for petitioner.
QUIASON, J.:
This is a petition for prohibition filed by petitioner as a "taxpayer," questioning the appointment
of respondent Gabriel Singson as Governor of the Bangko Sentral Ng Pilipinas for not having
been confirmed by the Commission on Appointments. The petition seeks to enjoin respondent
Singson from the performance of his functions as such official until his appointment is confirmed
by the Commission on Appointments and respondent Salvador M. Enriquez, Secretary of
Budget and Management, from disbursing public funds in payment of the salaries and
emoluments of respondent Singson.
I Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910, it was held that the question of
Respondent Singson was appointed Governor of the Bangko Sentral by President Fidel V.
Ramos on July 2, 1993, effective on July 6, 1993 (Rollo, p. 10).
Petitioner argues that respondent Singson's appointment is null and void since it was not
submitted for confirmation to the Commission on Appointments. The petition is anchored on the
provisions of Section 6 of R.A. No. 7653, which established the Bangko Sentral as the Central
Monetary Authority of the Philippines. Section 6, Article II of R.A. No. 7653 provides:
Sec. 6. Composition of the Monetary Board. The powers and functions of the Bangko Sentral
shall be exercised by the Bangko Sentral Monetary Board, hereafter referred to as the Monetary
Board, composed of seven (7) members appointed by the President of the Philippines for a term
of six (6) years.
The seven (7) members are:
(a) The Governor of the Bangko Sentral, who shall be the Chairman of the Monetary Board. The
Governor of the Bangko Sentral shall be head of a department and his appointment shall be
subject to confirmation by the Commission on Appointments. Whenever the Governor is unable
to attend a meeting of the Board, he shall designate a Deputy Governor to act as his alternate:
Provided, That in such event, the Monetary Board shall designate one of its members as acting
Chairman . . . (Emphasis supplied).
In their comment, respondents claim that Congress exceeded its legislative powers in requiring
the confirmation by the Commission on Appointments of the appointment of the Governor of the
Bangko Sentral. They contend that an appointment to the said position is not among the
appointments which have to be confirmed by the Commission on Appointments, citing Section
16 of Article VII of the Constitution which provides that:
Sec. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not otherwise provided for
by law, and those whom he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone, in the courts, or in
the heads of department, agencies, commissions, or boards . . . (Emphasis supplied).
Respondents also aver that the Bangko Sentral has its own budget and accordingly, its
budgetary requirements are not subject to the provisions of the General Appropriations Act.
We dismiss the petition.
II
The instant petition is in the nature of a quo warranto proceeding as it seeks the ouster of
respondent Singson and alleges that the latter is unlawfully holding or exercising the powers of
Governor of the Bangko Sentral (Cf. Castro v. Del Rosario, 19 SCRA 196 [1967]). Such a
special civil action can only be commenced by the Solicitor General or by a "person claiming to
be entitled to a public office or position unlawfully held or exercised by another" (Revised Rules
of Court, Rule 66, Sec. 6; Acosta v. Flor, 5 Phil. 18 [1905]).
In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we held that the petitioner therein, who
did not aver that he was entitled to the office of the City Engineer of Cabanatuan City, could not
bring the action for quo warranto to oust the respondent from said office as a mere usurper.
title to an office, which must be resolved in a quo warranto proceeding, may not be determined
in a suit to restrain the payment of salary to the person holding such office, brought by someone
who does not claim to be the one entitled to occupy the said office.
It is obvious that the instant action was improvidently brought by petitioner. To uphold the action
would encourage every disgruntled citizen to resort to the courts, thereby causing incalculable
mischief and hindrance to the efficient operation of the governmental machinery (See Roosevelt
v. Draper, 7 Abb. Pr. 108, 23 N.Y. 218).
Its capstone having been removed, the whole case of petitioner collapses. Hence, there is no
need to resolve the question of whether the disbursement of public funds to pay the salaries
and emoluments of respondent Singson can be enjoined. Likewise, the Court refrains from
passing upon the constitutionality of Section 6, R.A. No. 7653 in deference to the principle that
bars a judicial inquiry into a constitutional question unless the resolution thereof is indispensable
for the determination of the case (Fernandez v. Torres, 215 SCRA 489 [1992]).
However for the information of all concerned, we call attention to our decision in Calderon v.
Carale, 208 SCRA 254 (1992), with Justice Isagani A. Cruz dissenting, where we ruled that
Congress cannot by law expand the confirmation powers of the Commission on Appointments
and require confirmation of appointment of other government officials not expressly mentioned
in the first sentence of Section 16 of Article VII of the Constitution.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.
73
G.R. No. 112497 August 4, 1994
HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF
JUSTICE, petitioner,
vs.
MAYOR ALFREDO S. LIM, VICE-MAYOR JOSE L. ATIENZA, CITY TREASURER
ANTHONY ACEVEDO, SANGGUNIANG PANGLUNSOD AND THE CITY OF
MANILA, respondents.
CRUZ, J.:
The principal issue in this case is the constitutionality of Section 187 of the Local
Government Code reading as follows:
Procedure For Approval And Effectivity Of Tax Ordinances And Revenue Measures;
Mandatory Public Hearings. — The procedure for approval of local tax ordinances and
revenue measures shall be in accordance with the provisions of this Code: Provided,
That public hearings shall be conducted for the purpose prior to the enactment thereof;
Provided, further, That any question on the constitutionality or legality of tax ordinances
or revenue measures may be raised on appeal within thirty (30) days from the effectivity
thereof to the Secretary of Justice who shall render a decision within sixty (60) days
from the date of receipt of the appeal: Provided, however, That such appeal shall not
have the effect of suspending the effectivity of the ordinance and the accrual and
payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty
(30) days after receipt of the decision or the lapse of the sixty-day period without the
Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate
proceedings with a court of competent jurisdiction.
Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil companies
and a taxpayer, declared Ordinance No. 7794, otherwise known as the Manila Revenue
Code, null and void for non-compliance with the prescribed procedure in the enactment
of tax ordinances and for containing certain provisions contrary to law and public
policy. 1 In a petition for certiorari filed by the City of Manila, the Regional Trial Court of
Manila revoked the Secretary's resolution and sustained the ordinance, holding inter
alia that the procedural requirements had been observed. More importantly, it declared
Section 187 of the Local Government Code as unconstitutional because of its vesture
in the Secretary of Justice of the power of control over local governments in violation
of the policy of local autonomy mandated in the Constitution and of the specific
provision therein conferring on the President of the Philippines only the power of
supervision over local governments. 2 The present petition would have us reverse that
decision. The Secretary argues that the annulled Section 187 is constitutional and that
the procedural requirements for the enactment of tax ordinances as specified in the
Local Government Code had indeed not been observed.
Parenthetically, this petition was originally dismissed by the Court for non-compliance
with Circular 1-88, the Solicitor General having failed to submit a certified true copy of
the challenged decision. 3 However, on motion for reconsideration with the required
certified true copy of the decision attached, the petition was reinstated in view of the
importance of the issues raised therein.
We stress at the outset that the lower court had jurisdiction to consider the
constitutionality of Section 187, this authority being embraced in the general definition
of the judicial power to determine what are the valid and binding laws by the criterion
of their conformity to the fundamental law. Specifically, BP 129 vests in the regional
trial courts jurisdiction over all civil cases in which the subject of the litigation is
incapable of pecuniary estimation,4 even as the accused in a criminal action has the
right to question in his defense the constitutionality of a law he is charged with violating
and of the proceedings taken against him, particularly as they contravene the Bill of
Rights. Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme
Court appellate jurisdiction over final judgments and orders of lower courts in all cases
in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question. In the exercise of this jurisdiction, lower courts are advised to
act with the utmost circumspection, bearing in mind the consequences of a declaration
of unconstitutionality upon the stability of laws, no less than on the doctrine of
separation of powers. As the questioned act is usually the handiwork of the legislative
or the executive departments, or both, it will be prudent for such courts, if only out of a
becoming modesty, to defer to the higher judgment of this Court in the consideration
of its validity, which is better determined after a thorough deliberation by a collegiate
body and with the concurrence of the majority of those who participated in its
discussion. 5 It is also emphasized that every court, including this Court, is charged with
the duty of a purposeful hesitation before declaring a law unconstitutional, on the theory
that the measure was first carefully studied by the executive and the legislative
departments and determined by them to be in accordance with the fundamental law
before it was finally approved. To doubt is to sustain. The presumption of
constitutionality can be overcome only by the clearest showing that there was indeed
an infraction of the Constitution, and only when such a conclusion is reached by the
required majority may the Court pronounce, in the discharge of the duty it cannot escape, that
the challenged act must be struck down.
In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the Local Government
Code unconstitutional insofar as it empowered the Secretary of Justice to review tax ordinances
and, inferentially, to annul them. He cited the familiar distinction between control and
supervision, the first being "the power of an officer to alter or modify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of
the former for the latter," while the second is "the power of a superior officer to see to it that
lower officers perform their functions in accordance with law." 6 His conclusion was that the
challenged section gave to the Secretary the power of control and not of supervision only as
vested by the Constitution in the President of the Philippines. This was, in his view, a violation
74
not only of Article X, specifically Section 4 thereof, 7 and of Section 5 on the taxing powers of
local governments, 8 and the policy of local autonomy in general.
We do not share that view. The lower court was rather hasty in invalidating the provision.
Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of
the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he
alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own
judgment for the judgment of the local government that enacted the measure. Secretary Drilon
did set aside the Manila Revenue Code, but he did not replace it with his own version of what
the Code should be. He did not pronounce the ordinance unwise or unreasonable as a basis
for its annulment. He did not say that in his judgment it was a bad law. What he found only was
that it was illegal. All he did in reviewing the said measure was determine if the petitioners were
performing their functions in accordance with law, that is, with the prescribed procedure for the
enactment of tax ordinances and the grant of powers to the city government under the Local
Government Code. As we see it, that was an act not of control but of mere supervision.
An officer in control lays down the rules in the doing of an act. If they are not followed, he may,
in his discretion, order the act undone or re-done by his subordinate or he may even decide to
do it himself. Supervision does not cover such authority. The supervisor or superintendent
merely sees to it that the rules are followed, but he himself does not lay down such rules, nor
does he have the discretion to modify or replace them. If the rules are not observed, he may
order the work done or re-done but only to conform to the prescribed rules. He may not prescribe
his own manner for the doing of the act. He has no judgment on this matter except to see to it
that the rules are followed. In the opinion of the Court, Secretary Drilon did precisely this, and
no more nor less than this, and so performed an act not of control but of mere supervision.
The case of Taule v. Santos 9 cited in the decision has no application here because the
jurisdiction claimed by the Secretary of Local Governments over election contests in the
Katipunan ng Mga Barangay was held to belong to the Commission on Elections by
constitutional provision. The conflict was over jurisdiction, not supervision or control.
Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which provided
in its Section 2 as follows: A tax ordinance shall go into effect on the fifteenth day after its
passage, unless the ordinance shall provide otherwise: Provided, however, That the Secretary
of Finance shall have authority to suspend the effectivity of any ordinance within one hundred
and twenty days after receipt by him of a copy thereof, if, in his opinion, the tax or fee therein
levied or imposed is unjust, excessive, oppressive, or confiscatory, or when it is contrary to
declared national economy policy, and when the said Secretary exercises this authority the
effectivity of such ordinance shall be suspended, either in part or as a whole, for a period of
thirty days within which period the local legislative body may either modify the tax ordinance to
meet the objections thereto, or file an appeal with a court of competent jurisdiction; otherwise,
the tax ordinance or the part or parts thereof declared suspended, shall be considered as
revoked. Thereafter, the local legislative body may not reimpose the same tax or fee until such
time as the grounds for the suspension thereof shall have ceased to exist.
That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance if, in
his opinion, the tax or fee levied was unjust, excessive, oppressive or confiscatory.
Determination of these flaws would involve the exercise of judgment or discretion and not
merely an examination of whether or not the requirements or limitations of the law had been
observed; hence, it would smack of control rather than mere supervision. That power was never
questioned before this Court but, at any rate, the Secretary of Justice is not given the same
latitude under Section 187. All he is permitted to do is ascertain the constitutionality or legality
of the tax measure, without the right to declare that, in his opinion, it is unjust, excessive,
oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary Drilon set
aside the Manila Revenue Code only on two grounds, to with, the inclusion therein of
certain ultra vires provisions and non-compliance with the prescribed procedure in its
enactment. These grounds affected the legality, not the wisdom or reasonableness, of the tax
measure. The issue of non-compliance with the prescribed procedure in the enactment of the
Manila Revenue Code is another matter.
In his resolution, Secretary Drilon declared that there were no written notices of public hearings
on the proposed Manila Revenue Code that were sent to interested parties as required by Art.
276(b) of the Implementing Rules of the Local Government Code nor were copies of the
proposed ordinance published in three successive issues of a newspaper of general circulation
pursuant to Art. 276(a). No minutes were submitted to show that the obligatory public hearings
had been held. Neither were copies of the measure as approved posted in prominent places in
the city in accordance with Sec. 511(a) of the Local Government Code. Finally, the Manila
Revenue Code was not translated into Pilipino or Tagalog and disseminated among the people
for their information and guidance, conformably to Sec. 59(b) of the Code.
Judge Palattao found otherwise. He declared that all the procedural requirements had been
observed in the enactment of the Manila Revenue Code and that the City of Manila had not
been able to prove such compliance before the Secretary only because he had given it only five
days within which to gather and present to him all the evidence (consisting of 25 exhibits) later
submitted to the trial court. To get to the bottom of this question, the Court acceded to the motion
of the respondents and called for the elevation to it of the said exhibits. We have carefully
examined every one of these exhibits and agree with the trial court that the procedural
requirements have indeed been observed. Notices of the public hearings were sent to interested
parties as evidenced by Exhibits G-1 to 17. The minutes of the hearings are found in Exhibits
M, M-1, M-2, and M-3. Exhibits B and C show that the proposed ordinances were published in
the Balita and the Manila Standard on April 21 and 25, 1993, respectively, and the approved
ordinance was published in the July 3, 4, 5, 1993 issues of the Manila Standard and in the July
6, 1993 issue of Balita, as shown by Exhibits Q, Q-1, Q-2, and Q-3.
The only exceptions are the posting of the ordinance as approved but this omission does not
affect its validity, considering that its publication in three successive issues of a newspaper of
general circulation will satisfy due process. It has also not been shown that the text of the
ordinance has been translated and disseminated, but this requirement applies to the approval
of local development plans and public investment programs of the local government unit and
not to tax ordinances. We make no ruling on the substantive provisions of the Manila Revenue
Code as their validity has not been raised in issue in the present petition. WHEREFORE, the
judgment is hereby rendered REVERSING the challenged decision of the Regional Trial Court
insofar as it declared Section 187 of the Local Government Code unconstitutional but
AFFIRMING its finding that the procedural requirements in the enactment of the Manila
Revenue Code have been observed. No pronouncement as to costs.
SO ORDERED.
75

G.R. No. L-46570 April 21, 1939
JOSE D. VILLENA, petitioner,
vs.
THE SECRETARY OF THE INTERIOR, respondent.
Vicente del Rosario for petitioner.
Office of the Solicitor-General Ozaeta for respondent.
LAUREL, J.:
This is an original action of prohibition with prayer for preliminary injunction against the
Secretary of the Interior to restrain him and his agents from proceeding with the
investigation of the herein petitioner, Jose D. Villena, mayor of Makati, Rizal, which was
scheduled to take place on March 28, 1939, until this case is finally determined by this
court. The respondent was required to answer, but the petition for preliminary injunction
was denied.
It appears that the Division of Investigation of the Department of Justice, upon the
request of the Secretary of the Interior, conducted an inquiry into the conduct of the
petitioner, as a result of which the latter was found to have committed bribery, extortion,
malicious abuse of authority and unauthorized practice of the law profession. The
respondent, therefore, on February 8, 1939, recommended to the President of the
Philippines the suspension of the petitioner to prevent possible coercion of witnesses,
which recommendation was granted, according to the answer of the Solicitor-General
of March 20, 1939, verbally by the President on the same day. The Secretary of the
Interior suspended the petitioner from office on February 9, 1939, and then and
thereafter wired the Provincial Governor of Rizal with instruction that the petitioner be
advised accordingly. On February 13, 1939, the respondent wrote the petitioner a
letter, specifying the many charges against him and notifying him of the designation of
Emiliano Anonas as special investigator to investigate the charges. The special
investigator forthwith notified the petitioner that the formal investigation would be
commenced on February 17, 1939, at 9 a. m., but due to several incidents and
postponements, the same had to be set definitely for March 28, 1939. Hence, the
petition for preliminary injunction referred to in the beginning of this opinion.
The petitioner contends in his petition:
(1) That the Secretary of the Interior has no jurisdiction or authority to suspend and
much less to prefer by himself administrative charges against the petitioner and decide
also by himself the merits of the charges as the power to suspend municipal elective
officials and to try and punish them for misconduct in office or dereliction of duty is
lodged in some other agencies of the government;
(2) That the acts of the respondent in suspending the petitioner from office and in
preferring by himself charges against him and in designating a special investigator to
hear the charges specified in Exhibit A are null and void for the following reasons:
(a) Because the Secretary of the Interior, by suspending the petitioner, has exercised
control over local governments when that power has been taken away from the
President of the Philippines by the Constitution for the to abrogate and the power to
abrogate means the power to power to control has been interpreted to include the
power usurp and the power to usurp necessarily includes the power to destroy;
(b) Because even if the respondent Secretary of the Interior has power of supervision
over local governments, that power, according to the constitution, must be exercised
in accordance with the provisions of law and the provisions of law governing trials of
charges against elective municipal officials are those contained in section 2188 of the
Administrative Code as amended. In other words, the Secretary of the Interior must
exercise his supervision over local governments, if he has that power under existing
law, in accordance with section 2188 of the Administrative Code, as amended, as the
latter provision govern the procedure to be followed in suspending and punishing
elective local officials while section 79 (C) of the Administrative Code is the general law
which must yield to the special law;
(c) Because the respondent Secretary of the Interior is exercising an arbitrary power
by converting himself into a complainant and at the same time judge of the charges he
has preferred against the petitioner;
(d) Because the action of the respondent Secretary of the Interior is not based on any
sworn statement of any private person or citizen of this government when section 2188
of the Administrative Code requires the complaint against elective municipal officials to
be under oath in order to merit consideration by the authorities.
Petitioner prays this Honorable Court:
(a) To issue a writ of preliminary injunction against the respondent restraining him, his
agents, attorneys and all persons acting by virtue of his authority from further
proceeding against the petitioner until this case is finally determined by this court;
(b) To declare, after the hearing of this petition, that the respondent is without authority
or jurisdiction to suspend the petitioner from the office of mayor of Makati and to order
his immediate reinstatement in office;
(c) To declare that the respondent has no authority to prefer charges against the
petitioner and to investigate those charges for the grant him that power the respondent
would be acting as prosecutor and judge of the case of his own creation.
Upon the other hand, the Solicitor-General contends in his answer:
1. That section 79 (C) in relation with section 86 of the Revised Administrative Code
expressly empowers the respondent as Secretary of the Interior to "order the
investigation of any act or conduct of any person in the service of any bureau or office
under his department" and in connection therewith to "designate an official or person
who shall conduct such investigation"; (Par. 4.)
2. That although section 2188 of the Revised Administrative Code, invoked by the
petitioner, empowers the provincial governor to `receive and investigate complaints
76
made under oath against municipal officers for neglect of duty, oppression, corruption
or other form of maladministration of office', said section does not preclude the
respondent as Secretary of the Interior from exercising the power vested in him by
section 79 (C) in relation with section 86 of the Revised Administrative Code; and that,
moreover, said section 2188 must be read in relation with section 37 of Act No. 4007,
known as the Reorganization Law of 1932; (Par. 4 [b].)
3. That at the commencement of the investigation the petitioner did not question the
power or jurisdiction of the Department of the Interior to investigate the administrative
charges against him but merely contended that the filing of said charges was not in
accordance with law for the reason that they did not bear the oaths of the complainants;
(Par. 5.)
4. That the authority of a department head order the investigation of any act or conduct
of any person under his department necessarily carries with it by implication the
authority to take such measures as he may deem necessary to accomplish the purpose
of the investigation, such as by suspending the officer under investigation to prevent
coercion of witnesses; and that, furthermore, the suspension from office of the herein
petitioner by the respondent was authorized by the Chief Executive, who is empowered
by section 64 (B) of the Administrative Code to remove officials from office; (Par. 7.)
5. That the petition does not allege facts and circumstances that would warrant the
granting of the writ of preliminary injunction under section 164 of the Code of Civil
Procedure; (Par. 8.)
6. That it is a well-settled rule "that courts of equity have no power to restrain public
officers by injunction from performing any official act which they are by law required to
perform, or acts which are not in excess of the authority and discretion reposed in
them." (Par. 9)
The issues presented in this case may be reduced to an inquiry into the legal authority
of the Secretary of the Interior (a) to order an investigation, by a special investigation
appointed by him, of the charges of corruption and irregularity brought to his attention
against the mayor of the municipality of Makati, Province of Rizal, who is the petitioner
herein, and (b) to decree the suspension of the said mayor pending the investigation
of the charges.
Section 79 (C) of the Administrative Code provides as follows:
The Department Head shall have direct control, direction, and supervision over all
bureaus and offices under his jurisdiction and may, any provision of existing law to the
contrary notwithstanding, repeal or modify the decisions of the chiefs of said bureaus
of offices when advisable in the public interest.
The Department Head may order the investigation of any act conduct of any person in
the service of any bureau of office under his department and in connection therewith
may appoint a committee or designate an official or person who shall conduct such
investigations, and such committee, official, or person may summon, witness
by subpoena and subpoena duces tecum, administer oath and take testimony relevant
to the investigation.
The above section speaks, it is true, of direct control, direction, and supervision over
bureaus and offices under the jurisdiction of the Secretary of the Interior, but this
section should be interpreted in relation to section 86 of the same Code which grants
to the Department of the Interior "executive supervision over the administration of
provinces, municipalities, chartered cities and other local political subdivisions." In the
case of Planas vs. Gil (37 Off. Gaz., 1228), we observed that "Supervision is not a
meaningless thing. It is an active power. It is certainly not without limitation, but it at
least implies authority to inquire into facts and conditions in order to render the power
real and effective. If supervision is to be conscientious and rational, and not automatic
and brutal, it must be founded upon a knowledge of actual facts and conditions
disclosed after careful study and investigation." The principle there enunciated is
applicable with equal force to the present case.
We hold, therefore, that the Secretary of the Interior is invested with authority to order
the investigation of the charges against the petitioner and to appoint a special
investigator for that purpose.
As regards the challenged power of the Secretary of the Interior to decree the
suspension of the herein petitioner pending an administrative investigation of the
charges against him, the question, it may be admitted, is not free from difficulties. There
is no clear and express grant of power to the secretary to suspend a mayor of a
municipality who is under investigation. On the contrary, the power appears lodged in
the provincial governor by section 2188 of the Administrative Code which provides that
"The provincial governor shall receive and investigate complaints made under oath
against municipal officers for neglect of duty, oppression, corruption or other form of
maladministration of office, and conviction by final judgment of any crime involving
moral turpitude. For minor delinquency he may reprimand the offender; and if a more
severe punishment seems to be desirable he shall submit written charges touching the
matter to the provincial board, furnishing a copy of such charges to the accused either
personally or by registered mail, and he may in such case suspend the officer (not
being the municipal treasurer) pending action by the board, if in his opinion the charge
be one affecting the official integrity of the officer in question. Where suspension is thus
effected, the written charges against the officer shall be filed with the board within five
days." The fact, however, that the power of suspension is expressly granted by section
2188 of the Administrative Code to the provincial governor does not mean that the grant
is necessarily exclusive and precludes the Secretary of the Interior from exercising a
similar power. For instance, counsel for the petitioner admitted in the oral argument
that the President of the Philippines may himself suspend the petitioner from office in
virtue of his greater power of removal (sec. 2191, as amended, Administrative Code)
to be exercised conformably to law. Indeed, if the President could, in the manner
77
prescribed by law, remove a municipal official, it would be a legal incongruity if he were
to be devoid of the lesser power of suspension. And the incongruity would be more
patent if, possessed of the power both to suspend and to remove a provincial official
(sec. 2078, Administrative Code), the President were to be without the power to
suspend a municipal official. Here is, parenthetically, an instance where, as counsel for
petitioner admitted, the power to suspend a municipal official is not exclusive. Upon the
other hand, it may be argued with some degree of plausibility that, if the Secretary of
the Interior is, as we have hereinabove concluded, empowered to investigate the
charges against the petitioner and to appoint a special investigator for that purpose,
preventive suspension may be a means by which to carry into effect a fair and impartial
investigation. This is a point, however, which, for the reason hereinafter indicated, we
do not have to decide.
The Solicitor-General argues that section 37 of Act No. 4007, known as the
Reorganization Law of 1932, by providing, "the provisions of the existing law to the
contrary notwithstanding," that "whenever a specific power, authority, duty, function, or
activity is entrusted to a chief of bureau, office, division or service, the same shall be
understood as also conferred upon the proper Department Head who shall have
authority to act directly in pursuance thereof, or to review, modify or revoke any
decision or action of said chief of bureau, office, division or service", should be
interpreted to concede to the Secretary of the Interior the power to suspend a mayor
of a municipality. The argument is so generally sweeping that, unless distinctions are
made, the effect would be the complete abrogation at will of the powers of provincial
and municipal officials even in corporate affairs of local governments. Under the theory
suggested by the Solicitor-General, the Secretary of the Interior could, as observed by
able counsel for the petitioner, enter into a contract and sign a deed of conveyance of
real property in behalf of a municipality against the opposition of the mayor thereof who
is the local official authorized by law to do so (sec. 2196, Revised Administrative Code),
or in behalf of a province in lieu of the provincial governor thereof (sec 2068, Ibid.), and
otherwise exercise powers of corporate character mentioned in sections 2067 and
2175 of the Revised Administrative Code and which are lodged in the corresponding
provincial and municipal officials. And if the power of suspension of the Secretary of
the Interior is to be justified on the plea that the pretended power is governmental and
not corporate, the result would be more disastrous. Then and thereunder, the Secretary
of the Interior, in lieu of the mayor of the municipality, could directly veto municipal
ordinances and resolutions under section 2229 of the Revised Administrative Code; he
could, without any formality, elbow aside the municipal mayor and himself make
appointments to all non-elective positions in the municipal service, under section 2199
of the Revised Administrative Code; he could, instead of the provincial governor, fill a
temporary vacancy in any municipal office under subsection (a), section 2188, as
amended, of the said Code; he-could even directly appoint lieutenants of barrios and
wrest the authority given by section 2218 of the Revised Administrative Code to a
municipal councilor. Instances may be multiplied but it is unnecessary to go any further.
Prudence, then, dictates that we should hesitate to accept the suggestion urged upon
us by the Solicitor-General, especially where we find the path indicated by him neither
illuminated by the light of our own experience nor cemented by the virtuality of legal
principles but is, on the contrary, dimmed by the recognition however limited in our own
Constitution of the right of local self-government and by the actual operation and
enforcement of the laws governing provinces, chartered cities, municipalities and other
political subdivisions. It is not any question of wisdom of legislation but the existence
of any such destructive authority in the law invoked by the Government that we are
called upon to pass and determine here.
In the deliberation of this case it has also been suggested that, admitting that the
President of the Philippines is invested with the authority to suspend the petitioner, and
it appearing that he had verbally approved or at least acquiesced in the action taken
by the Secretary of the Interior, the suspension of the petitioner should be sustained
on the principle of approval or ratification of the act of the Secretary of the Interior by
the President of the Philippines. There is, to be sure, more weight in this argument than
in the suggested generalization of section 37 of Act No. 4007. Withal, at first blush, the
argument of ratification may seem plausible under the circumstances, it should be
observed that there are certain prerogative acts which, by their very nature, cannot be
validated by subsequent approval or ratification by the President. There are certain
constitutional power and prerogatives of the Chief Executive of the Nation which must
be exercised by him in person and no amount of approval or ratification will validate
the exercise of any of those powers by any other person. Such, for instance, is his
power to suspend the writ of habeas corpus and proclaim martial law (par. 3, sec. 11,
Art. VII) and the exercise by him of the benign prerogative of mercy (par. 6, sec.
11, idem). Upon the other hand, doubt is entertained by some members of the court
whether the statement made by the Secretary to the President in the latter's behalf and
by his authority that the President had no objection to the suspension of the petitioner
could be accepted as an affirmative exercise of the power of suspension in this case,
or that the verbal approval by the President of the suspension alleged in a pleading
presented in this case by the Solicitor-General could be considered as a sufficient
ratification in law.
After serious reflection, we have decided to sustain the contention of the government
in this case on the board proposition, albeit not suggested, that under the presidential
type of government which we have adopted and considering the departmental
organization established and continued in force by paragraph 1, section 12, Article VII,
of our Constitution, all executive and administrative organizations are adjuncts of the
Executive Department, the heads of the various executive departments are assistants
and agents of the Chief Executive, and except in cases where the Chief Executive is
78
required by the Constitution or the law to act in person or the exigencies of the situation field. If the President, then, is the authority in the Executive Department, he assumes
demand that he act personally, the multifarious executive and administrative functions the corresponding responsibility. The head of a department is a man of his confidence;
of the Chief Executive are performed by and through the executive departments, and he controls and directs his acts; he appoints him and can remove him at pleasure; he
the acts of the secretaries of such departments, performed and promulgated in the is the executive, not any of his secretaries. It is therefore logical that he, the President,
regular course of business, are, unless disapproved or reprobated by the Chief should be answerable for the acts of administration of the entire Executive Department
Executive, presumptively the acts of the Chief Executive. (Runkle vs. United States before his own conscience no less than before that undefined power of public opinion
[1887], 122 U. S., 543; 30 Law. ed., 1167: 7 Sup. Ct. Rep., 1141; see also U. which, in the language of Daniel Webster, is the last repository of popular government.
S. vs. Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones vs. U. S. [1890], 137 U. S., These are the necessary corollaries of the American presidential type of government,
202; 34 Law. ed., 691; 11 Sup. Ct., Rep., 80; Wolsey vs.Chapman [1880], 101 U. S., and if there is any defect, it is attributable to the system itself. We cannot modify the
755; 25 Law. ed., 915: Wilcox vs. Jackson [1836], 13 Pet., 498; 10 Law. ed., 264.) system unless we modify the Constitution, and we cannot modify the Constitution by
Fear is expressed by more than one member of this court that the acceptance of the any subtle process of judicial interpretation or constitution.
principle of qualified political agency in this and similar cases would result in the The petition is hereby dismissed, with costs against the petitioner. So ordered.
assumption of responsibility by the President of the Philippines for acts of any member Avanceña, C. J., Diaz, and Concepcion, JJ., concur.
of his cabinet, however illegal, irregular or improper may be these acts. The
implications, it is said, are serious. Fear, however, is no valid argument against the
system once adopted, established and operated. Familiarity with the essential
background of the type of government established under our Constitution, in the light
of certain well-known principles and practices that go with the system, should offer the
necessary explanation. With reference to the Executive Department of the government,
there is one purpose which is crystal-clear and is readily visible without the projection
of judicial searchlight, and that is, the establishment of a single, not plural, Executive.
The first section of Article VII of the Constitution, dealing with the Executive
Department, begins with the enunciation of the principles that "The executive power
shall be vested in a President of the Philippines." This means that the President of the
Philippines is the Executive of the Government of the Philippines, and no other. The
heads of the executive departments occupy political positions and hold office in an
advisory capacity, and, in the language of Thomas Jefferson, "should be of the
President's bosom confidence" (7 Writings, Ford ed., 498), and, in the language of
Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the direction
of the President." Without minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of that of the President.
Stated otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme
Court of the United States, "each head of a department is, and must be, the
President's alter ego in the matters of that department where the President is required
by law to exercise authority" (Myers vs. United States, 47 Sup. Ct. Rep., 21 at 30; 272
U. S., 52 at 133; 71 Law. ed., 160). Secretaries of departments, of course, exercise
certain powers under the law but the law cannot impair or in any way affect the
constitutional power of control and direction of the President. As a matter of executive
policy, they may be granted departmental autonomy as to certain matters but this is by
mere concession of the executive, in the absence of valid legislation in the particular
79
G.R. No. 78389 October 16, 1989
JOSE LUIS MARTIN C. GASCON, FAUSTINO "BONG" L. LAPIRA, and SPOUSES
ALBERTO and KARLA LIM,petitioners,
vs.
The Hon. JOKER T. ARROYO, in his official capacity as Executive Secretary to the
President, Hon. TEODORO C. BENIGNO, as Press Secretary, Hon. REINERIO REYES, as
the Secretary of Transportation and Communication, Hon. JOSE ALCUAZ, as Chairman
of the National Telecommunications Commission, Hon. CONRADO A. LIMCAOCO, JR.,
as the Officer-in-Charge of the People's Television 4, ABS-CBN BROADCASTING
CORPORATION, and MESSRS. VICENTE ABAD SANTOS, PASTOR DEL ROSARIO and
CATALINO MACARAIG, JR., in their respective capacities as Chairman and Members of
the "Arbitration Committee", respondents. In this petition for certiorari and prohibition, with
prayer for issuance of writ of preliminary injunction or temporary restraining order, petitioners
seek to annul and set aside the "Agreement to Arbitrate" entered into by and between the
Republic of the Philippines, represented by Executive Secretary Joker T. Arroyo, and ABS-CBN
Broadcasting Corporation, represented by its President, Eugenio Lopez, Jr., dated 6 January
1987, to settle the claims of ABS-CBN for the return of radio and television stations (TV Station
Channel 4), and to enjoin the Arbitration Committee created under the aforesaid agreement
from adjudicating the claims of ABS-CBN. The record discloses the following facts: The Lopez
family is the owner of two (2) television stations, namely: Channels 2 and 4 which they have
operated through the ABS-CBN Broadcasting Corporation. When martial law was declared on
21 September 1972, TV Channel 4 was closed by the military; thereafter, its facilities were taken
over by the Kanlaon Broadcasting System which operated it as a commercial TV station.
In 1978, the said TV station and its facilities were taken over by the National Media Production
Center (NMPC), which operated it as the Maharlika Broadcasting System TV 4 (MBS-4).
After the February 1986 EDSA revolution, the Presidential Commission on Good Government
(PCGG) sequestered the aforementioned TV Stations, and, thereafter, the Office of Media
Affairs took over the operation of TV Channel 4.
On 17 April 1986, the Lopez family, through counsel, ex-Senator Lorenzo Tanada, requested
President Aquino to order the return to the Lopez family of TV Stations 2 and 4. 1
On 13 June 1986, the Lopez family made a written request to the PCGG for the return of TV
Station Channel 2. On 18 June 1986, the PCGG approved the return of TV Station Channel 2
to the Lopez family. 2 The return was made on 18 October 1986.
Thereafter, the Lopez family requested for the return of TV Station Channel 4. Acting upon the
request, respondent Executive Secretary, by authority of the President, entered into with the
ABS-CBN Broadcasting Corporation, represented by its President, Eugenio Lopez, Jr., an
"Agreement to Arbitrate", 3 pursuant to which an Arbitration Committee was created, composed
of Atty. Catalino Macaraig, Jr., for the Republic of the Philippines, Atty. Pastor del Rosario, for
ABS-CBN, and retired Justice Vicente Abad Santos, as Chairman. Thereupon, petitioners,as
taxpayers, filed the instant petition. Before discussing the issues raised in the present petition,
the Court will first resolve the question of whether or not the herein petitioners have the legal
personality or standing to the the instant case.
There have been several cases wherein the Court recognized the right of a taxpayer to file an
action questioning the validity or constitutionality of a statute or law, on the theory that the
expenditure of public funds by an officer of the government for the purpose of administering or
implementing an unconstitutional or invalid law, constitutes a misapplication of such funds. 4
The present case, however, is not an action to question the constitutionality or validity of a
statute or law. It is an action to annul and set aside the "Agreement to Arbitrate", which, as
between the parties, is contractual in character. Petitioners have not shown that they have a
legal interest in TV Station Channel 4 and that they will be adversely affected if and when the
said television station is returned to the Lopez family. Petitioners, therefore, have no legal
standing to file the present petition.,In addition, the petition is devoid of merit. Under the
Provisional Constitution of the Republic of the Philippines also known as the Freedom
Constitution), which was in force and effect when the "Agreement to Arbitrate" was signed by
the parties thereto on 6 January 1987, the President exercised both the legislative and executive
powers of the Government. As Chief Executive, the President was (and even now) "assisted by
a Cabinet" composed of Ministers (now Secretaries), who were appointed by and accountable
to the President. 5 In other words, the Members of the cabinet, as heads of the various
departments, are the assistants and agents of the Chief Executive, and, except in cases where
the Chief Executive is required by the Constitution or the law to act in person, or where the
exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive
departments, and the acts of the heads of such departments performed in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts
of the Chief Executive. 6 Respondent Executive Secretary had, therefore, the power and
authority to enter into the "Agreement to Arbitrate" with the ABS- CBN Broadcasting
Corporation, as he acted for and in behalf of the President when he signed it; hence, the
aforesaid agreement is valid and binding upon the Republic of the Philippines, as a party
thereto. Moreover, the settlement of controversies is not vested in the courts of justice alone to
the exclusion of other agencies or bodies. Whenever a controversy arises, either or both parties
to the controversy may file the proper action in court. However, the parties may also resort to
arbitration under RA 876 which is a much faster way of settling their controversy, compared to
how long it would take if they were to go to court. In entering into the "Agreement to Arbitrate",
the Executive branch of the government merely opted to avail itself of an alternative mode of
settling the claim of the private respondent ABS-CBN Broadcasting Corporation for the return
of TV Station Channel 4. Court held that where the government takes property from a private
landowner for public use without going through the legal process of expropriation or negotiated
sale, the aggrieved party may properly maintain a suit against the government without thereby
violating the doctrine of governmental immunity from suit without its consent. That is, as it should
be, for the doctrine of governmental immunity from suit cannot serve as an instrument for
perpetrating an injustice to a citizen. 8 Finally, neither the "convening of Congress" nor the
"recent declaration of the President that PTV-4 shall remain as the information arm of the
government" can render "ineffective and unenforceable" the "Agreement to Arbitrate" because
at the time of the signing of the said agreement, the President was exercising both the legislative
and executive powers of the Government, and since the "Agreement to Arbitrate" is valid, it is
"enforceable and irrevocable, save upon such grounds as exist at law for the revocation of any
contract." 9
WHEREFORE, the petition is DISMISSED. SO ORDERED.
80
G.R. No. L-17169 November 30, 1963
ISIDRO C. ANG-ANGCO, petitioner,
vs.
HON. NATALIO P. CASTILLO, ET AL., respondents.
Juan T. David for petitioner.
Office of the Solicitor General for respondents.
BAUTISTA ANGELO, J.:
On October 8, 1956, the Pepsi-Cola Far East Trade Development Co., Inc. wrote a
letter to the Secretary of Commerce and Industry requesting for special permit to
withdraw certain commodities from the customs house which were imported without
any dollar allocation or remittance of foreign exchange. Said commodities consisted of
1,188 units of pepsi-cola concentrates which were not covered by any Central Bank
release certificate. On the same date, the company addressed an identical request to
the Secretary of Finance who was also the Chairman of the Monetary Board of the
Central Bank. Senator Pedro Sabido, in behalf of the company, likewise wrote said
official urging that authority be given to withdraw the abovementioned concentrates.
Not content with this step, he also wrote to Dr. Andres Castillo, Acting Governor of the
Central Bank, urging, the same matter. Then Secretary Hernandez wrote another letter
to Dr. Castillo stating, "Senator Sabido is taking this to you personally. Unless we have
legal objection, I would like to authorize the withdrawal of the concentrates upon
payment of all charges in pesos. Please expedite action."
Almost at the same time, the Import-Export Committee of the Central Bank, thru Mr.
Gregorio Licaros, submitted to the Monetary Board a memorandum on the joint petition
of the company and Sabido Law Office for authority to withdraw the concentrates from
the customs house stating therein that it sees no objection to the proposal. The
Monetary Board, however, failed to take up the matter in its meeting of October 12,
1956 for the reason that the transaction did not involve any dollar allocation or foreign
exchange, and of this decision Mr. Licaros was informed.
Having failed to secure the necessary authority from the Central Bank, on October 13,
1956, the counsel of the Pepsi-Cola Far East Trade Development Co., Inc.,
approached Collector of Customs Isidro Ang-Angco in an attempt to secure from him
the immediate release of the concentrates, but this official seeing perhaps that the
importation did not carry any release certificate from the Central Bank advised the
counsel to try to secure the necessary release certificate from the No-Dollar Import
Office that had jurisdiction over the case. In the morning of the same day, Mr. Aquiles
J. Lopez, of said Office, wrote a letter addressed to the Collector of Customs stating,
among other things, that his office had no objection to the release of the 1,188 units of
concentrates but that it could not take action on the request as "the same is not within
the jurisdiction of the No-Dollar Import Office within the contemplation of R.A. No.
1410." The counsel already referred to above showed the letter to Collector of Customs
Ang-Angco who upon perusing it still hesitated to grant the release. Instead he
suggested that the letter be amended in order to remove the ambiguity appearing
therein, but Mr. Lopez refused to amend the letter stating that the same was neither a
permit nor a release. Secretary of Finance Hernandez having been contacted by
telephone, Collector of Customs Ang-Angco read to him the letter after which the
Secretary verbally expressed his approval of the release on the basis of said certificate.
Collector Ang-Angco, while still in doubt as to the propriety of the action suggested,
finally authorized the release of the concentrates upon payment of the corresponding
duties, customs charges, fees and taxes.
When Commissioner of Customs Manuel P. Manahan learned of the release of the
concentrates in question he immediately ordered their seizure but only a negligible
portion thereof remained in the warehouse. Whereupon, he filed an administrative
complaint against Collector of Customs Ang-Angco charging him with having
committed a grave neglect of duty and observed a conduct prejudicial to the best
interest of the customs service. On the strength of this complaint President Ramon
Magsaysay constituted an investigating committee to investigate Ang-Angco
composed of former Solicitor General Ambrosio Padilla, as Chairman, and Atty. Arturo
A. Alafriz and Lt. Col. Angel A. Salcedo, as members. Together with Collector Ang-
Angco, Mr. Aquiles J. Lopez, was also investigated by the same Committee, who was
also charged in a separate complaint with serious misconduct in office or conduct
prejudicial to the best interest of the State. As a result, Collector Ang-Angco was
suspended from office in the latter part of December, 1956.
After the investigation, the committee submitted to President Magsaysay its report
recommending that a suspension of 15 days, without pay, be imposed upon Ang-Angco
chargeable against the period of his suspension. On April 1, 1957, Collector Ang-Angco
was reinstated to his office by Secretary Hernandez, but the decision on the
administrative case against him remained pending until the death of President
Magsaysay. After around three years from the termination of the investigation during
which period Ang-Angco had been discharging the duties of his office, Executive
Secretary Natalio P. Castillo, by authority of the President, rendered a decision on the
case on February 12, 1960 finding Ang-Angco "guilty of conduct prejudicial to the best
interest of the service", and considering him resigned effective from the date of notice,
with prejudice to reinstatement in the Bureau of Customs.
Upon learning said decision from the newspapers, Collector Ang-Angco wrote a letter
to President Carlos P. Garcia calling attention to the fact that the action taken by
Secretary Castillo in removing him from office had the effect of depriving him of his
statutory right to have his case originally decided by the Commissioner of Civil Service,
as well as of his right of appeal to the Civil Service Board of Appeals, whose decision
under Republic Act No. 2260 is final, besides the fact that such decision is in violation
81
of the guaranty vouchsafed by the Constitution to officers or employees in the civil
service against removal or suspension except for cause in the manner provided by law.
In a letter dated February 16, 1960, Secretary Castillo, also by authority of the
President, denied the request for reconsideration. Not satisfied with this resolution,
Collector Ang-Angco sent a memorandum to President Garcia reiterating once more
the same grounds on which he predicated his request for reconsideration. Again
Secretary Castillo, also by authority of the President, in letter dated July 1, 1960, denied
the appeal. In this instance, Secretary Castillo asserted that the President virtue of his
power of control over all executive departments, bureaus and offices, can take direct
action and dispose of the administrative case in question inasmuch as the provisions
of law that would seem to vest final authority in subordinate officers of the executive
branch of the government over administrative matters falling under their jurisdiction
cannot divest the President of his power of control nor diminish the same.
Hence, after exhausting all the administrative remedies available to him to secure his
reinstatement to the office from which he was removed without any valid cause or in
violation of his right to due process of law, Collector Ang-Angco filed before this Court
the present petition for certiorari, prohibition and mandamus with a petition for the
issuance of a preliminary mandatory injunction. The Court gave due course to the
petition, but denied the request for injunction.
The main theme of petitioner is that respondent Executive Secretary Natalio P. Castillo
in acting on his case by authority of the President in the sense of considering him as
resigned from notice thereof, violated the guaranty vouchsafed by the Constitution to
officers and employees in the classified service in that he acted in violation of Section
16 (i) of the Civil Service Act of 1959 which vests in the Commissioner of Civil Service
the original and exclusive jurisdiction to decide administrative cases against officers
and employees in the classified service, deprived him of his right of appeal under
Section 18 (b) of the same Act to the Civil Service Board of Appeals whose decision
on the matter is final, and removed him from the service without due process in violation
of Section 32 of the same Act which expressly provides that the removal or suspension
of any officer or employee from the civil service shall be accomplished only after due
process, and of Section 4, Article XII of our Constitution which provides that "No officer
or employee in the civil service shall be removed except for cause as provided for by
law." Since petitioner is an officer who belongs to the classified civil service and is not
a presidential appointee, but one appointed by the Secretary of Finance under the
Revised Administrative Code, he cannot be removed from the service by the President
in utter disregard of the provisions of the Civil Service Act of 1959.
Respondents, on their part, do not agree with this theory entertained by petitioner. They
admit that if the theory is to be considered in the light of the provisions of the Civil
Service Act of 1959, the same may be correct, for indeed the Civil Service Law as it
now stands provides that all officers and employees who belong to the classified
service come under the exclusive jurisdiction of the Commissioner of Civil Service and
as such all administrative cases against them shall be indorsed to said official whose
decision may be appealed to the Civil Service Board of Appeals from whose decision
no further appeal can be taken. They also admit that petitioner belongs to the classified
civil service. But it is their theory that the pertinent provisions of the Civil Service Law
applicable to employees in the classified service do not apply to the particular case of
petitioner since to hold otherwise would be to deprive the President of his power of
control over the officers and employees of the executive branch of the government. In
other words, respondents contend that, whether the officers or employees concerned
are presidential appointees or belong to the classified service, if they are all officers
and employees in the executive department, they all come under the control of the
President and, therefore, his power of removal may be exercised over them directly
without distinction. Indeed, respondents contend that, if, as held in the case ofNegado
v. Castro, 55 O.G., 10534, the President may modify or set aside a decision of the Civil
Service Board of Appeals at the instance of the office concerned, or the respondent
employee, or may even do so motu propio, there would be in the final analysis no
logical difference between removing petitioner by direct action of the President and
separating him from the service by ultimate action by the President should an appeal
be taken from the decision of the Civil Service Board of Appeals to him, or if in his
discretion he may motu proprio consider it necessary to review the Board's decision. It
is contended that this ruling still holds true in spite of the new provision wrought into
the law by Republic Act 2260 which eliminated the power of review given to the
President because the power of control given by the Constitution to the President over
officers and employees in the executive department can only be limited by the
Constitution and not by Congress, for to permit Congress to do so would be to diminish
the authority conferred on the President by the Constitution which is tantamount to
amending the Constitution itself (Hebron v. Reyes, L- 9124, July 28, 1958). Indeed this
is the argument invoked by respondent Castillo in taking direct action against petitioner
instead of following the procedure outlined in the Civil Service Act of 1959 as may be
seen from the following portion of his decision.
In connection with the second ground advanced in support of your petition, it is
contended that in deciding the case directly, instead of transmitting it to the
Commissioner of Civil Service for original decision, his Office deprived the respondent
of his right to appeal to the Civil Service Board of Appeals. This contention overlooks
the principle that the President may modify or set aside a decision of the Civil Service
Board of Appeals at the instance of either the office concerned or the respondent
employee, or may even do so motu proprio (Negado vs. Castro, 55 O.G, No. 51, p.
10534, Dec. 21, 1959). There would therefore be no difference in effect between direct
action by the President and ultimate action by him should an appeal be taken from the
decision of the Commissioner of Civil Service or the Civil Service Board of Appeals.
82
The result is that the President's direct action would be the final decision that would be
reached in case an appeal takes its due course.
Thus, we see that the main issue involved herein is whether the President has the
power to take direct action on the case of petitioner even if he belongs to the classified
service in spite of the provisions now in force in the Civil Service Act of 1959. Petitioner
sustains the negative contending that the contrary view would deprive him of his office
without due process of law while respondents sustain the affirmative invoking the power
of control given to the President by the Constitution over all officers and employees,
belonging to the executive department.
To begin with, we may state that under Section 16 (i) of the Civil Service Act of 1959 it
is the Commissioner of Civil Service who has original and exclusive jurisdiction to
decide administrative cases of all officers and employees in the classified service for
in said section the following is provided: "Except as otherwise provided by law, (the
Commissioner shall) have final authority to pass upon the removal, separation and
suspension of all permanent officers and employees in the competitive or classified
service and upon all matters relating to the employees." The only limitation to this power
is that the decision of the Commissioner may be appealed to the Civil Service Board of
Appeals, in which case said Board shall decide the appeal within a period of 90 days
after the same has been submitted for decision, whose decision in such case shall be
final (Section 18, Republic Act 2260). It should be noted that the law as it now stands
does not provide for any appeal to the President, nor is he given the power to review
the decision motu proprio, unlike the provision of the previous law, Commonwealth Act
No. 598, which was expressly repealed by the Civil Service Act of 1959 (Rep. Act
2260), which provides that the decision of the Civil Service Board of Appeals may be
reversed or modified motu proprio by the President. It is, therefore, clear that under the
present provision of the Civil Service Act of 1959, the case of petitioner comes under
the exclusive jurisdiction of the Commissioner of Civil Service, and having been
deprived of the procedure laid down therein in connection with the investigation and
disposition of his case, it may be said that he has been deprived of due process as
guaranteed by said law.
It must, however, be noted that the removal, separation and suspension of the officers
and employees of the classified service are subject to the saving clause "Except as
otherwise provided by law" (Section 16 [i], Republic Act No. 2260). The question then
may be asked: Is the President empowered by any other law to remove officers and
employees in the classified civil service?
The only law that we can recall on the point is Section 64 (b) of the Revised
Administrative Code, the pertinent portion of which we quote:
(b) To remove officials from office conformably to law and to declare vacant the offices
held by such removed officials. For disloyalty to the (United States) Republic of the
Philippines, the (Governor-General) President of the Philippines may at any time
remove a person from any position of trust or authority under the Government of the
(Philippine Islands) Philippines.
The phrase "conformably to law" is significant. It shows that the President does not
have blanket authority move any officer or employee of the government but his power
must still be subject to the law that passed by the legislative body particularly with
regard the procedure, cause and finality of the removal of persons who may be the
subject of disciplinary action. Here, as above stated we have such law which governs
action to be taken against officers and employees in classified civil service. This law is
binding upon President.
Another provision that may be mentioned is Section (D) of the Revised Administrative
Code, which provides:
Power to appoint and remove. — The Department Head, the recommendation of the
chief of the Bureau or office concerned, shall appoint all subordinate officers and
employees appointment is not expressly vested by law in the (Governor-General)
President of the Philippines, and may remove or punish them, except as especially
provided otherwise, in accordance the Civil Service Law.
The phrase "in accordance with the Civil Service is also significant. So we may say that
even granting for administrative purposes, the President of the Philippines is
considered as the Department Head of the Civil Service Commission, his power to
remove is still subject to the Civil Service Act of 1959, and we already know with regard
to officers and employees who belong to classified service the finality of the action is
given to the Commissioner of Civil Service or the Civil Board of Appeals.
Let us now take up the power of control given to President by the Constitution over all
officers and employees in the executive department which is now in by respondents as
justification to override the specific visions of the Civil Service Act. This power of control
couched in general terms for it does not set in specific manner its extent and scope.
Yes, this Court in the case of Hebron v. Reyes, supra, had already occasion to interpret
the extent of such power to mean "the power of an officer to alter or modify or nullify or
set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter,"1 to distinguish it from the
power of general supervision over municipal government, but the decision does not go
to the extent of including the power to remove an officer or employee in the executive
department. Apparently, the power merely applies to the exercise of control over the
acts of the subordinate and not over the actor or agent himself of the act. It only means
that the President may set aside the judgment or action taken by a subordinate in the
performance of his duties.
That meaning is also the meaning given to the word "control" as used in administrative
law. Thus, the Department Head pursuant to Section 79(C) is given direct control of all
bureaus and offices under his department by virtue of which he may "repeal or modify
decisions of the chiefs of said bureaus or offices", and under Section 74 of the same
83
Code, the President's control over the executive department only refers to matters We have no doubt that when Congress, by law, vests the appointment of inferior
of general policy. The term "policy" means a settled or definite course or method officers in the heads of departments it may limit and restrict power of removal as it
adopted and followed by a government, body, or individual,2 and it cannot be said that seem best for the public interest. The constitutional authority in Congress to thus vest
the removal of an inferior officer comes within the meaning of control over a specific the appointment implies authority to limit, restrict, and regulate the removal by such
policy of government. laws as Congress may enact in relation to the officers so appointed. The head of a
But the strongest argument against the theory of respondents is that it would entirely department has no constitutional prerogative of appointment to officers independently
nullify and set at naught the beneficient purpose of the whole civil service system of legislation of Congress, and by such legislation he must be governed, not only in
implanted in this jurisdiction, which is to give stability to the tenure of office of those making appointments but in all that is incident thereto. (U.S. v. Perkins, 116 U.S. 483)
who belong to the classified service, in derogation of the provisions of our Constitution In resume, we may conclude that the action taken by respondent Executive Secretary,
which provides that "No officer or employee in the civil service shall be removed or even with the authority of the President, in taking direct action on the administrative
suspended except for cause as provided by law" (Section 4, Article XII, case of petitioner, without submitting the same to the Commissioner of Civil Service, is
Constitution).Here, we have two provisions of our Constitution which are apparently in contrary to law and should be set aside.
conflict, the power of control by the President embodied in Section 10 (1), Article VII, WHEREFORE, it is hereby ordered that petitioner be immediately reinstated to his
and the protection extended to those who are in the civil service of our government office as Collector of Customs for the Port of Manila, without prejudice of submitting his
embodied in Section 4, Article XII. It is our duty to reconcile and harmonize these case to the Commissioner of Civil Service to be dealt with in accordance with law. No
conflicting provisions in a manner that may give to both full force and effect and the costs.
only logical, practical and rational way is to interpret them in the manner we do it in this
decision. As this Court has aptly said in the case of Lacson v. Romero:
... To hold that civil service officials hold their office at the will of the appointing power
subject to removal or forced transfer at any time, would demoralize and undermine and
eventually destroy the whole Civil Service System and structure. The country would
then go back to the days of the old Jacksonian Spoils System under which a victorious
Chief Executive, after the elections could if so minded, sweep out of office, civil service
employees differing in Political color or affiliation from him, and sweep in his Political
followers and adherents, especially those who have given him help, political or
otherwise. (Lacson v. Romero, 84 Phil. 740, 754)
There is some point in the argument that the Power of control of the President may
extend to the Power to investigate, suspend or remove officers and employees who
belong to the executive department if they are presidential appointees or do not belong
to the classified service for such can be justified under the principle that the power to
remove is inherent in the power to appoint (Lacson V. Romero, supra), but not with
regard to those officers or employees who belong to the classified service for as to
them that inherent power cannot be exercised. This is in line with the provision of our
Constitution which says that "the Congress may by law vest the appointment of the
inferior officers, in the President alone, in the courts, or in heads of department" (Article
VII, Section 10 [3], Constitution). With regard to these officers whose appointments are
vested on heads of departments, Congress has provided by law for a procedure for
their removal precisely in view of this constitutional authority. One such law is the Civil
Service Act of 1959.

84
PROF. RANDOLF S. DAVID, LORENZO TA„ADA G.R. No. 171396 MARCOS, RENATO B. MAGTUBO, JUSTIN
III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., MARC SB. CHIPECO, ROILO GOLEZ, DARLENE
JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY Present: ANTONINO-CUSTODIO, LORETTA ANN P.
S. MALLARI, ROMEL REGALADO ROSALES, JOSEL G. VIRADOR, RAFAEL V.
BAGARES, CHRISTOPHER F.C. BOLASTIG, PANGANIBAN, C.J., MARIANO, GILBERT C. REMULLA, FLORENCIO
Petitioners, *PUNO, G. NOEL, ANA THERESIA HONTIVEROS-
QUISUMBING, BARAQUEL, IMELDA C. NICOLAS, MARVIC
- versus - YNARES-SANTIAGO, M.V.F. LEONEN, NERI JAVIER COLMENARES,
SANDOVAL-GUTIERREZ, MOVEMENT OF CONCERNED CITIZENS FOR
CARPIO, CIVIL LIBERTIES REPRESENTED BY AMADO
GLORIA MACAPAGAL-ARROYO, AS AUSTRIA-MARTINEZ, GAT INCIONG,
PRESIDENT AND COMMANDER-IN-CHIEF, CORONA, Petitioners,
EXECUTIVE SECRETARY EDUARDO ERMITA, CARPIO MORALES,
HON. AVELINO CRUZ II, SECRETARY OF CALLEJO, SR., - versus -
NATIONAL DEFENSE, GENERAL GENEROSO AZCUNA,
SENGA, CHIEF OF STAFF, ARMED FORCES OF TINGA,
THE PHILIPPINES, DIRECTOR GENERAL CHICO-NAZARIO, EDUARDO R. ERMITA, EXECUTIVE
ARTURO LOMIBAO, CHIEF, PHILIPPINE GARCIA, and SECRETARY, AVELINO J. CRUZ, JR.,
NATIONAL POLICE, VELASCO, JJ. SECRETARY, DND RONALDO V. PUNO,
Respondents. SECRETARY, DILG, GENEROSO SENGA, AFP
x-------------------------------------------------x Promulgated: CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
NI„EZ CACHO-OLIVARES AND TRIBUNE PNP,
PUBLISHING CO., INC., May 3, 2006 Respondents.
Petitioners, x-------------------------------------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS
G.R. No. 171409 CHAIRPERSON ELMER C. LABOG AND
- versus - SECRETARY GENERAL JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS Ð
KILUSANG MAYO UNO (NAFLU-KMU),
HONORABLE SECRETARY EDUARDO ERMITA REPRESENTED BY ITS NATIONAL PRESIDENT,
AND HONORABLE DIRECTOR GENERAL JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
ARTURO C. LOMIBAO, SALVADOR T. CARRANZA, EMILIA P.
Respondents. DAPULANG, MARTIN CUSTODIO, JR., AND
x-------------------------------------------------x ROQUE M. TAN,
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. Petitioners, G.R. No. 171483
SANTIAGO, TEODORO A. CASINO, AGAPITO A.
AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV S. HATAMAN, JUAN EDGARDO ANGARA,
TEOFISTO DL. GUINGONA III, EMMANUEL G.R. No. 171485
JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. - versus -
85
 Respondents.
x-------------------------------------------------x G.R. No. 171489
LOREN B. LEGARDA,
Petitioner,
HER EXCELLENCY, PRESIDENT GLORIA
MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, - versus -
THE CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, GENEROSO SENGA, AND
THE PNP DIRECTOR GENERAL, ARTURO GLORIA MACAPAGAL-ARROYO, IN HER
LOMIBAO, CAPACITY AS PRESIDENT AND COMMANDER-
Respondents. IN-CHIEF; ARTURO LOMIBAO, IN HIS
x-------------------------------------------------x CAPACITY AS DIRECTOR-GENERAL OF THE
ALTERNATIVE LAW GROUPS, INC. (ALG), PHILIPPINE NATIONAL POLICE (PNP);
Petitioner, GENEROSO SENGA, IN HIS CAPACITY AS
- versus - CHIEF OF STAFF OF THE ARMED FORCES OF
THE PHILIPPINES (AFP); AND EDUARDO
ERMITA, IN HIS CAPACITY AS EXECUTIVE
EXECUTIVE SECRETARY EDUARDO R. SECRETARY,
ERMITA, LT. GEN. GENEROSO SENGA, AND Respondents.
DIRECTOR GENERAL ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
JOSE ANSELMO I. CADIZ, FELICIANO M.
BAUTISTA, ROMULO R. RIVERA, JOSE AMOR G.R. No. 171424
M. AMORADO, ALICIA A. RISOS-VIDAL, G.R. No. 171400
FELIMON C. ABELITA III, MANUEL P. LEGASPI,
J.B. JOVY C. BERNABE, BERNARD L. x---------------------------------------------------------------------------------------------x
DAGCUTA, ROGELIO V. GARCIA AND
INTEGRATED BAR OF THE PHILIPPINES (IBP),
Petitioners,
DECISION
- versus -

SANDOVAL-GUTIERREZ, J.:
HON. EXECUTIVE SECRETARY EDUARDO
ERMITA, GENERAL GENEROSO SENGA, IN HIS
CAPACITY AS AFP CHIEF OF STAFF, AND All powers need some restraint; practical adjustments rather than rigid formula are
DIRECTOR GENERAL ARTURO LOMIBAO, IN necessary.[1] Superior strength Ð the use of force Ð cannot make wrongs into rights. In
HIS CAPACITY AS PNP CHIEF,
86
this regard, the courts should be vigilant in safeguarding the constitutional rights of the
citizens, specifically their liberty.
Chief Justice Artemio V. PanganibanÕs philosophy of liberty is thus most relevant. He
said: ÒIn cases involving liberty, the scales of justice should weigh heavily
against government and in favor of the poor, the oppressed, the marginalized,
the dispossessed and the weak.Ó Laws and actions that restrict fundamental rights
come to the courts Òwith a heavy presumption against their constitutional validity.Ó[2]
These seven (7) consolidated petitions for certiorari and prohibition allege that in
issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O.
No. 5), President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the Government, in their
professed efforts to defend and preserve democratic institutions, are actually trampling
upon the very freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree of liberty,
without which, law becomes tyranny, with the degree of law, without which, liberty
becomes license?[3]
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa
People Power I, President Arroyo issued PP 1017 declaring a state of national
emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the
Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue
of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution
which states that: ÒThe President. . . whenever it becomes necessary, . . . may call
out (the) armed forces to prevent or suppress. . .rebellion. . .,Ó and in my capacity as
their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction; and as provided
in Section 17, Article 12 of the Constitution do hereby declare a State of National
Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left represented by the NDF-CPP-
NPA and the extreme Right, represented by military adventurists Ð the historical
enemies of the democratic Philippine State Ð who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State Ð by obstructing
governance including hindering the growth of the economy and sabotaging the
peopleÕs confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute a clear and present danger to the safety and the integrity
of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA
and the extreme Right, represented by military adventurists - the historical enemies of
the democratic Philippine State Ð and who are now in a tactical alliance and engaged
in a concerted and systematic conspiracy, over a broad front, to bring down the duly-
constituted Government elected in May 2004;
87
 WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing
governance, including hindering the growth of the economy and sabotaging the
peopleÕs confidence in the government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the democratic
Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute a clear and present danger to the safety and the integrity of
the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a
State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers
vested in me under the Constitution as President of the Republic of the Philippines,
and Commander-in-Chief of the Republic of the Philippines, and pursuant to
Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent
and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well
as the officers and men of the AFP and PNP, to immediately carry out the necessary
and appropriate actions and measures to suppress and prevent acts of terrorism
and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP
1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a
state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24,
2006, which were issued on the basis of Proclamation No. 1017, the Armed Forces of
the Philippines (AFP) and the Philippine National Police (PNP), were directed to
maintain law and order throughout the Philippines, prevent and suppress all form of
lawless violence as well as any act of rebellion and to undertake such action as may
be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and
quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by law, hereby declare
that the state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents
stated that the proximate cause behind the executive issuances was the conspiracy
among some military officers, leftist insurgents of the New PeopleÕs Army (NPA), and
some members of the political opposition in a plot to unseat or assassinate President
Arroyo.[4] They considered the aim to oust or assassinate the President and take-over
the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the
facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there
was no refutation from petitionersÕ counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling out
the armed forces. He emphasized that none of the petitioners has shown that PP
1017 was without factual bases. While he explained that it is not respondentsÕ task
to state the facts behind the questioned Proclamation, however, they are presenting
the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants
Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the
Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort
88
Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to
elude arrest at all costs. They called upon the people to Òshow and proclaim our
displeasure at the sham regime. Let us demonstrate our disgust, not only by going to
the streets in protest, but also by wearing red bands on our left arms.Ó [5]
On February 17, 2006, the authorities got hold of a document entitled ÒOplan Hackle
I Ó which detailed plans for bombings and attacks during the Philippine Military
Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected
targets including some cabinet members and President Arroyo herself.[6] Upon the
advice of her security, President Arroyo decided not to attend the Alumni
Homecoming. The next day, at the height of the celebration, a bomb was found and
detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing
minutes of the meetings between members of the Magdalo Group and the National
PeopleÕs Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and
copies of subversive documents.[7] Prior to his arrest, Lt. San Juan announced
through DZRH that the ÒMagdaloÕs D-Day would be on February 24, 2006, the
20th Anniversary of Edsa I.Ó
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr.
to ÒdisavowÓ any defection. The latter promptly obeyed and issued a public
statement: ÒAll SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty.Ó
On the same day, at the house of former Congressman Peping Cojuangco, President
Cory AquinoÕs brother, businessmen and mid-level government officials plotted
moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine
reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official
about his groupÕs plans if President Arroyo is ousted. Saycon also phoned a man
code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the
ArmyÕs elite Scout Ranger. Lim said Òit was all systems go for the planned movement
against Arroyo.Ó[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a
huge number of soldiers would join the rallies to provide a critical mass and armed
component to the Anti-Arroyo protests to be held on February 24, 2005. According to
these two (2) officers, there was no way they could possibly stop the soldiers because
they too, were breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his Commander-in-Chief
and to the chain of command. He immediately took custody of B/Gen. Lim and directed
Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within
the military and the police establishments in order to forge alliances with its members
and key officials. NPA spokesman Gregorio ÒKa RogerÓ Rosal declared: ÒThe
Communist Party and revolutionary movement and the entire people look forward to
the possibility in the coming year of accomplishing its immediate task of bringing down
the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much
longer to end it.Ó[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF)
at North Central Mindanao, publicly announced: ÒAnti-Arroyo groups within the military
and police are growing rapidly, hastened by the economic difficulties suffered by the
families of AFP officers and enlisted personnel who undertake counter-insurgency
operations in the field.Ó He claimed that with the forces of the national democratic
movement, the anti-Arroyo conservative political parties, coalitions, plus the groups
that have been reinforcing since June 2005, it is probable that the PresidentÕs ouster
is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell
sites in Bulacan and Bataan was also considered as additional factual basis for the
issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of the Communist
Party of the Philippines ordering its front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass protests.[10]
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account for all their men and
ensure that the chain of command remains solid and undivided. To protect the young
students from any possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP
1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs
and activities related to the 20th anniversary celebration of Edsa People Power I; and
revoked the permits to hold rallies issued earlier by the local governments. Justice
Secretary Raul Gonzales stated that political rallies, which to the PresidentÕs mind
were organized for purposes of destabilization, are cancelled. Presidential Chief of
Staff Michael Defensor announced that Òwarrantless arrests and take-over of facilities,
including media, can already be implemented.Ó[11]
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National
89
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various
parts of Metro Manila with the intention of converging at the EDSA shrine. Those who
were already near the EDSA site were violently dispersed by huge clusters of anti-riot
police. The well-trained policemen used truncheons, big fiber glass shields, water
cannons, and tear gas to stop and break up the marching groups, and scatter the
massed participants. The same police action was used against the protesters marching
forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That
same evening, hundreds of riot policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for
the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and
newspaper columnist. Also arrested was his companion, Ronald Llamas, president of
party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and
G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated
news stories by reporters, documents, pictures, and mock-ups of the Saturday
issue. Policemen from Camp Crame in Quezon City were stationed inside the editorial
and business offices of the newspaper; while policemen from the Manila Police District
were stationed outside the building.[13]
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is Òmeant to show
a Ôstrong presence,Õ to tell media outlets not to connive or do anything that would
help the rebels in bringing down this government.Ó The PNP warned that it would
take over any media organization that would not follow Òstandards set by the
government during the state of national emergency.Ó Director General Lomibao
stated that Òif they do not follow the standards Ð and the standards are - if they would
contribute to instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 Ð we will recommend a
Ôtakeover.ÕÓ National TelecommunicationsÕ Commissioner Ronald Solis urged
television and radio networks to ÒcooperateÓ with the government for the duration of
the state of national emergency. He asked for Òbalanced reportingÓ from
broadcasters when covering the events surrounding the coup attempt foiled by the
government. He warned that his agency will not hesitate to recommend the closure of
any broadcast outfit that violates rules set out for media coverage when the national
security is threatened.[14]
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while
leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated
1985. BeltranÕs lawyer explained that the warrant, which stemmed from a case of
inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran,
however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told
they could not be admitted because of PP 1017 and G.O. No. 5. Two members were
arrested and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after
him during a public forum at the Sulo Hotel in Quezon City. But his two drivers,
identified as Roel and Art, were taken into custody.
Retired Major General Ramon Monta–o, former head of the Philippine Constabulary,
was arrested while with his wife and golfmates at the Orchard Golf and Country Club
in Dasmari–as, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casi–o and
Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was
arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the
custody of the House of Representatives where the ÒBatasan 5Ó decided to stay
indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives
Beltran, Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and
G.O. No. 5 were filed with this Court against the above-named respondents. Three (3)
of these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the
grounds that (1) it encroaches on the emergency powers of Congress; (2) it is a
subterfuge to avoid the constitutional requirements for the imposition of martial law;
and (3) it violates the constitutional guarantees of freedom of the press, of speech and
of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing
Co., Inc. challenged the CIDGÕs act of raiding the Daily Tribune offices as a clear case
of ÒcensorshipÓ or Òprior restraint.Ó They also claimed that the term ÒemergencyÓ
refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is
Òabsolutely no emergencyÓ that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of Representatives,
90
including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casi–o, Liza
Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute
Òusurpation of legislative powersÓ; Òviolation of freedom of expressionÓ and Òa
declaration of martial law.Ó They alleged that President Arroyo Ògravely abused her
discretion in calling out the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is necessity to do so.Ó
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred
that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto
President Arroyo the power to enact laws and decrees; (2) their issuance was without
factual basis; and (3) they violate freedom of expression and the right of the people to
peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP
1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of
Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article
VI, and (d) Section 17[20] of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is
an Òarbitrary and unlawful exercise by the President of her Martial Law powers.Ó And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued
that Òit amounts to an exercise by the President of emergency powers without
congressional approval.Ó In addition, petitioners asserted that PP 1017 Ògoes
beyond the nature and function of a proclamation as defined under the Revised
Administrative Code.Ó
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017
and G.O. No. 5 are Òunconstitutional for being violative of the freedom of expression,
including its cognate rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under Article III, Section 4 of
the 1987 Constitution.Ó In this regard, she stated that these issuances prevented her
from fully prosecuting her election protest pending before the Presidential Electoral
Tribunal.
In respondentsÕ Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being moot; second, petitioners
in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485
(Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not
necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017
has constitutional and legal basis; and fifth, PP 1017 does not violate the peopleÕs
right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on
the above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda)
have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.[21] This concept rests on
the extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the ultimate
source of all political authority. It confers limited powers on the national government. x
x x If the government consciously or unconsciously oversteps these limitations
there must be some authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve inviolate the will of
the people as expressed in the Constitution. This power the courts exercise. This
is the beginning and the end of the theory of judicial review.[22]
But the power of judicial review does not repose upon the courts a Òself-starting
capacity.Ó[23] Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to
raise a question of constitutionality; third, the constitutional question must be raised at
the earliest opportunity; and fourth, the decision of the constitutional question must be
necessary to the determination of the case itself.[24]
Respondents maintain that the first and second requisites are absent, hence, we shall
limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is Òdefinite and concrete, touching the legal
relations of parties having adverse legal interest;Ó a real and substantial controversy
admitting of specific relief.[25] The Solicitor General refutes the existence of such actual
case or controversy, contending that the present petitions were rendered Òmoot and
academicÓ by President ArroyoÕs issuance of PP 1021.
Such contention lacks merit.
91
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events,[26] so that a declaration thereon would be of no practical
use or value.[27] Generally, courts decline jurisdiction over such case[28] or dismiss it on
ground of mootness.[29]
The Court holds that President ArroyoÕs issuance of PP 1021 did not render the
present petitions moot and academic. During the eight (8) days that PP 1017 was
operative, the police officers, according to petitioners, committed illegal acts in
implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they
justify these alleged illegal acts? These are the vital issues that must be resolved
in the present petitions. It must be stressed that Òan unconstitutional act is not a
law, it confers no rights, it imposes no duties, it affords no protection; it is in
legal contemplation, inoperative.Ó[30]
The Òmoot and academicÓ principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution;[31] second, the
exceptional character of the situation and the paramount public interest is
involved;[32] third,when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public;[33] and fourth, the case is capable
of repetition yet evading review.[34]
All the foregoing exceptions are present here and justify this CourtÕs assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017
and G.O. No. 5 violates the Constitution. There is no question that the issues being
raised affect the publicÕs interest, involving as they do the peopleÕs basic rights to
freedom of expression, of assembly and of the press. Moreover, the Court has the
duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It
has the symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given by
constitutional guarantees.[35] And lastly, respondentsÕ contested actions are capable
of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. PanganibanÕs Separate Opinion in Sanlakas v. Executive
Secretary.[36] However, they failed to take into account the Chief JusticeÕs very
statement that an otherwise ÒmootÓ case may still be decided Òprovided the party
raising it in a proper case has been and/or continues to be prejudiced or damaged as
a direct result of its issuance.Ó The present case falls right within this exception to
the mootness rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as Òa right of appearance in a court of justice on a given
question.Ó[37] In private suits, standing is governed by the Òreal-parties-in interestÓ
rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as
amended. It provides that Òevery action must be prosecuted or defended in the
name of the real party in interest.Ó Accordingly, the Òreal-party-in interestÓ is Òthe
party who stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit.Ó[38] Succinctly put, the plaintiffÕs standing is
based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a Òpublic rightÓ in assailing an allegedly illegal official action, does
so as a representative of the general public. He may be a person who is affected no
differently from any other person. He could be suing as a Òstranger,Ó or in the
category of a Òcitizen,Ó or Ôtaxpayer.Ó In either case, he has to adequately show
that he is entitled to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing of relief as a
ÒcitizenÓ or Òtaxpayer.
Case law in most jurisdictions now allows both ÒcitizenÓ and ÒtaxpayerÓ
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,[39] where it was held that the plaintiff in a taxpayerÕs suit is in a different category
from the plaintiff in a citizenÕs suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere instrument of
the public concern. As held by the New York Supreme Court in People ex rel Case
v. Collins:[40] ÒIn matter of mere public right, howeverÉthe people are the real
partiesÉIt is at least the right, if not the duty, of every citizen to interfere and see
that a public offence be properly pursued and punished, and that a public
grievance be remedied.Ó With respect to taxpayerÕs suits, Terr v. Jordan[41] held
that Òthe right of a citizen and a taxpayer to maintain an action in courts to
restrain the unlawful use of public funds to his injury cannot be denied.Ó
However, to prevent just about any person from seeking judicial interference in
any official policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United State Supreme Court laid
down the more stringent Òdirect injuryÓ test in Ex Parte Levitt,[42] later reaffirmed
inTileston v. Ullman.[43] The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative action, he must
show that he has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of the public.
This Court adopted the Òdirect injuryÓ test in our jurisdiction. In People v.
Vera,[44] it held that the person who impugns the validity of a statute must have Òa
92
personal and substantial interest in the case such that he has sustained, or will
sustain direct injury as a result.Ó The Vera doctrine was upheld in a litany of cases,
such as, Custodio v. President of the Senate,[45] Manila Race Horse TrainersÕ
Association v. De la Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-
Chinese League of the Philippines v. Felix.[48]
However, being a mere procedural technicality, the requirement of locus standi may be
waived by the Court in the exercise of its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v. Dinglasan,[49] where the Òtranscendental
importanceÓ of the cases prompted the Court to act liberally. Such liberality was
neither a rarity nor accidental. In Aquino v. Comelec,[50] this Court resolved to pass
upon the issues raised due to the Òfar-reaching implicationsÓ of the petition
notwithstanding its categorical statement that petitioner therein had no personality to
file the suit. Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws, regulations and
rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners have failed to
show direct injury, they have been allowed to sue under the principle of
Òtranscendental importance.Ó Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the enforcement
of the constitutional right to information and the equitable diffusion of natural
resources are matters of transcendental importance which clothe the petitioner
with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that Ògiven
the transcendental importance of the issues involved, the Court may relax the
standing requirements and allow the suit to prosper despite the lack of direct
injury to the parties seeking judicial reviewÓ of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not
file suit in their capacity as taxpayers absent a showing that ÒBalikatan 02-01Ó
involves the exercise of CongressÕ taxing or spending powers, it reiterated
its ruling in Bagong Alyansang Makabayan v. Zamora,[55] that in cases of
transcendental importance, the cases must be settled promptly and definitely
and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded
standing to sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of
the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained
of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the CourtÕs attitude toward
legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as
a peopleÕs organization does not give it the requisite personality to question the
validity of the on-line lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that
public funds are being misused. Nor can it sue as a concerned citizen as it does not
allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,[57] the Court reiterated the Òdirect injuryÓ test with respect to concerned
citizensÕ cases involving constitutional issues. It held that Òthere must be a showing
that the citizen personally suffered some actual or threatened injury arising from the
alleged illegal official act.Ó
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated
any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the PresidentÕs
declaration of a state of rebellion is a usurpation of the emergency powers of
Congress, thus impairing their legislative powers. As to petitioners Sanlakas,
Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid
of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-
Olivares and Tribune Publishing Co. Inc. They alleged Òdirect injuryÓ resulting from
Òillegal arrestÓ and Òunlawful searchÓ committed by police operatives pursuant to
PP 1017. Rightly so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation
of legislative powers. They also raised the issue of whether or not the concurrence of
Congress is necessary whenever the alarming powers incident to Martial Law are
used. Moreover, it is in the interest of justice that those affected by PP 1017 can be
93
represented by their Congressmen in bringing to the attention of the Court the alleged
violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,[61] Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform,[62] Basco v. Philippine Amusement and Gaming
Corporation,[63] and Ta–ada v. Tuvera,[64] that when the issue concerns a public right,
it is sufficient that the petitioner is a citizen and has an interest in the execution of the
laws.
In G.R. No. 171483, KMUÕs assertion that PP 1017 and G.O. No. 5 violated its right
to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights of their
members.[65] We take judicial notice of the announcement by the Office of the
President banning all rallies and canceling all permits for public assemblies following
the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated
Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or
potential injury which the IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the
Philippines v. Zamora,[66] the Court held that the mere invocation by the IBP of its duty
to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient
to clothe it with standing in this case. This is too general an interest which is shared
by other groups and the whole citizenry. However, in view of the transcendental
importance of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant
petition as there are no allegations of illegal disbursement of public funds. The fact
that she is a former Senator is of no consequence. She can no longer sue as a
legislator on the allegation that her prerogatives as a lawmaker have been impaired by
PP 1017 and G.O. No. 5. Her claim that she is a media personality will not likewise
aid her because there was no showing that the enforcement of these issuances
prevented her from pursuing her occupation. Her submission that she has pending
electoral protest before the Presidential Electoral Tribunal is likewise of no
relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or
result of her case. But considering once more the transcendental importance of the
issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the
bigger question of proper exercise of judicial power. This is the underlying legal tenet
of the Òliberality doctrineÓ on legal standing. It cannot be doubted that the validity of
PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance
to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society
now waits with bated breath the ruling of this Court on this very critical matter. The
petitions thus call for the application of the Òtranscendental importanceÓ doctrine, a
relaxation of the standing requirements for the petitioners in the ÒPP 1017 cases.Ó
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the
doctrine that the President, during his tenure of office or actual incumbency,[67] may not
be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations while serving as
such. Furthermore, it is important that he be freed from any form of harassment,
hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes
the executive branch and anything which impairs his usefulness in the discharge of the
many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government. However, this does not mean that the
President is not accountable to anyone. Like any other official, he remains accountable
to the people[68] but he may be removed from office only in the mode provided by law
and that is by impeachment.[69]
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
ÒnecessaryÓ for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the PresidentÕs
exercise of his Commander-in-Chief power has reached its distilled point - from the
indulgent days of Barcelon v. Baker[70] and Montenegro v.
Castaneda to the volatile era of Lansang v.
[71] Garcia,[72] Aquino, Jr. v.
Enrile, and Garcia-Padilla v. Enrile. The tug-of-war always cuts across the line
[73] [74]
defining Òpolitical questions,Ó particularly those questions Òin regard to which full
discretionary authority has been delegated to the legislative or executive branch of the
government.Ó[75] Barcelon and Montenegro were in unison in declaring that
the authority to decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the courts. Lansang took
the opposite view. There, the members of the Court were unanimous in the conviction
that the Court has the authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of separation of
powers, it shifted the focus to the system of checks and balances, Òunder which
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the President is supreme, x x x only if and when he acts within the sphere
allotted to him by the Basic Law, and the authority to determine whether
or not he has so acted is vested in the Judicial Department,which in this
respect, is, in turn, constitutionally supreme.Ó[76] In 1973, the
unanimous Court of Lansang was divided in Aquino v. Enrile.[77] There, the Court
was almost evenly divided on the issue of whether the validity of
the imposition of Martial Law is a political or justiciable
question.[78] Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It
declared that there is a need to re-examine the latter case, ratiocinating that Òin times
of war or national emergency, the President must be given absolute control for
the very life of the nation and the government is in great peril. The President, it
intoned, is answerable only to his conscience, the People, and God.Ó[79]
The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most pertinent to
these cases at bar -- echoed a principle similar to Lansang. While the Court
considered the PresidentÕs Òcalling-outÓ power as a discretionary power solely
vested in his wisdom, it stressed that Òthis 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.Ó This ruling is mainly a result of the CourtÕs reliance on Section 1,
Article VIII of 1987 Constitution which fortifies the authority of the courts to determine
in an appropriate action the validity of the acts of the political departments. Under the
new definition of judicial power, the courts are authorized not only Òto settle actual
controversies involving rights which are legally demandable and enforceable,Ó but also
Òto 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.Ó The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before
a forbidden territory, to wit, the discretion of the political departments of the
government.[81] It speaks of judicial prerogative not only in terms of power but also
of duty.[82]
As to how the Court may inquire into the PresidentÕs exercise of
power, Lansang adopted the test that Òjudicial inquiry can go no further than to satisfy
the Court not that the PresidentÕs decision is correct,Ó but that Òthe President did not
act arbitrarily.Ó Thus, the standard laid down is not correctness, but
arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled that Òit is
incumbent upon the petitioner to show that the PresidentÕs decision is totally
bereft of factual basisÓ and that if he fails, by way of proof, to support his assertion,
then Òthis Court cannot undertake an independent investigation beyond the
pleadings.Ó
Petitioners failed to show that President ArroyoÕs exercise of the calling-out power, by
issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor GeneralÕs
Consolidated Comment and Memorandum shows a detailed narration of the events
leading to the issuance of PP 1017, with supporting reports forming part of the
records. Mentioned are the escape of the Magdalo Group, their audacious threat of
the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines,
and the reproving statements from the communist leaders. There was also the Minutes
of the Intelligence Report and Security Group of the Philippine Army showing the
growing alliance between the NPA and the military. Petitioners presented nothing to
refute such events. Thus, absent any contrary allegations, the Court is convinced that
the President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to
simply fold her arms and do nothing to prevent or suppress what she believed was
lawless violence, invasion or rebellion. However, the exercise of such power or duty
must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides
an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English
doctrine of prerogative to cope with the problem of emergency. In times of danger to
the nation, positive law enacted by the legislature might be inadequate or even a fatal
obstacle to the promptness of action necessary to avert catastrophe. In these
situations, the Crown retained a prerogative Òpower to act according to discretion
for the public good, without the proscription of the law and sometimes even
against it.Ó[84] But Locke recognized that this moral restraint might not suffice to avoid
abuse of prerogative powers. Who shall judge the need for resorting to the
95
prerogative and how may its abuse be avoided? Here, Locke readily admitted
defeat, suggesting that Òthe people have no other remedy in this, as in all other
cases where they have no judge on earth, but to appeal to Heaven.Ó[85]
Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them bring
about, at a time of crisis, the ruin of the StateÉ
It is wrong therefore to wish to make political institutions as strong as to render it
impossible to suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the
laws and suspend for a moment the sovereign authority. In such a case, there is no
doubt about the general will, and it clear that the peopleÕs first intention is that the
State shall not perish.[86]
Rosseau did not fear the abuse of the emergency dictatorship or Òsupreme
magistracyÓ as he termed it. For him, it would more likely be cheapened by
Òindiscreet use.Ó He was unwilling to rely upon an Òappeal to heaven.Ó Instead,
he relied upon a tenure of office of prescribed duration to avoid perpetuation of the
dictatorship.[87]
John Stuart Mill concluded his ardent defense of representative government: ÒI am far
from condemning, in cases of extreme necessity, the assumption of absolute
power in the form of a temporary dictatorship.Ó[88]
Nicollo MachiavelliÕs view of emergency powers, as one element in the whole scheme
of limited government, furnished an ironic contrast to the Lockean theory of
prerogative. He recognized and attempted to bridge this chasm in democratic political
theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra
Ðconstitutional measures; for although they may for a time be beneficial, yet the
precedent is pernicious, for if the practice is once established for good objects, they
will in a little while be disregarded under that pretext but for evil purposes. Thus, no
republic will ever be perfect if she has not by law provided for everything, having a
remedy for every emergency and fixed rules for applying it.[89]
Machiavelli Ð in contrast to Locke, Rosseau and Mill Ð sought to incorporate into
the constitution a regularized system of standby emergency powers to be invoked with
suitable checks and controls in time of national danger. He attempted forthrightly to
meet the problem of combining a capacious reserve of power and speed and vigor in
its application in time of emergency, with effective constitutional restraints.[90]
Contemporary political theorists, addressing themselves to the problem of response to
emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.[91] Frederick M. Watkins saw Òno reason why absolutism should not
be used as a means for the defense of liberal institutions,Ó provided it Òserves
to protect established institutions from the danger of permanent injury in a
period of temporary emergency and is followed by a prompt return to the
previous forms of political life.Ó[92] He recognized the two (2) key elements of the
problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same
time Òimposing limitation upon that power.Ó[93] Watkins placed his real faith in a
scheme of constitutional dictatorship. These are the conditions of success of such a
dictatorship: ÒThe period of dictatorship must be relatively shortÉDictatorship
should always be strictly legitimate in characterÉFinal authority to determine the
need for dictatorship in any given case must never rest with the dictator
himselfÉÓ[94] and the objective of such an emergency dictatorship should be Òstrict
political conservatism.Ó
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95] ÒIt is a
problem of concentrating power Ð in a government where power has consciously been
divided Ð to cope withÉ situations of unprecedented magnitude and gravity. There
must be a broad grant of powers, subject to equally strong limitations as to who shall
exercise such powers, when, for how long, and to what end.Ó[96] Friedrich, too, offered
criteria for judging the adequacy of any of scheme of emergency powers, to wit: ÒThe
emergency executive must be appointed by constitutional means Ð i.e., he must
be legitimate; he should not enjoy power to determine the existence of an
emergency; emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be the defense of the
constitutional order.Ó[97]
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Clinton L. Rossiter, after surveying the history of the employment of emergency powers
in Great Britain, France, Weimar, Germany and the United States, reverted to a
description of a scheme of Òconstitutional dictatorshipÓ as solution to the vexing
problems presented by emergency.[98] Like Watkins and Friedrich, he stated a
priori the conditions of success of the Òconstitutional dictatorship,Ó thus:
1) No general regime or particular institution of constitutional dictatorship should be
initiated unless it is necessary or even indispensable to the preservation of the State
and its constitutional orderÉ
2) Éthe decision to institute a constitutional dictatorship should never be in the hands
of the man or men who will constitute the dictatorÉ
3) No government should initiate a constitutional dictatorship without making specific
provisions for its terminationÉ
4) Éall uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirementsÉ
5) É no dictatorial institution should be adopted, no right invaded, no regular
procedure altered any more than is absolutely necessary for the conquest of the
particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship should
never be permanent in character or effectÉ
7) The dictatorship should be carried on by persons representative of every part of
the citizenry interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a
constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to institute
one should never be in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis for
which it was institutedÉ
11) Éthe termination of the crisis must be followed by a complete return as possible to
the political and governmental conditions existing prior to the initiation of the
constitutional dictatorshipÉ[99]
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final responsibility
for declaring the existence or termination of an emergency, and he places great faith
in the effectiveness of congressional investigating committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light of recent
experience, were one in saying that, Òthe suggestion that democracies surrender
the control of government to an authoritarian ruler in time of grave danger to the
nation is not based upon sound constitutional theory.Ó To appraise emergency
power in terms of constitutional dictatorship serves merely to distort the problem and
hinder realistic analysis. It matters not whether the term ÒdictatorÓ is used in its
normal sense (as applied to authoritarian rulers) or is employed to embrace all chief
executives administering emergency powers. However used, Òconstitutional
dictatorshipÓ cannot be divorced from the implication of suspension of the processes
of constitutionalism. Thus, they favored instead the Òconcept of constitutionalismÓ
articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of
emergency powers, and which is consistent with the findings of this study, is that
formulated by Charles H. McIlwain. While it does not by any means necessarily exclude
some indeterminate limitations upon the substantive powers of government, full
emphasis is placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in government. And
in discussing the meaning of constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of adequate processes for
keeping government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of powers and
substantive limitations on governmental power. He found that the really effective
checks on despotism have consisted not in the weakening of government but, but
rather in the limiting of it; between which there is a great and very significant
difference. In associating constitutionalism with ÒlimitedÓ as distinguished from
ÒweakÓ government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force. The two fundamental
correlative elements of constitutionalism for which all lovers of liberty must yet
fight are the legal limits to arbitrary power and a complete political responsibility
of government to the governed.[101]
In the final analysis, the various approaches to emergency of the above political
theorists Ð- from LockÕs Òtheory of prerogative,Ó to WatkinsÕ doctrine of
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Òconstitutional dictatorshipÓ and, eventually, to McIlwainÕs Òprinciple of
constitutionalismÓ --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the
Chief Executive, while insuring that such powers will be exercised with a sense
of political responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice JacksonÕs
Òbalanced power structure.Ó[102] Executive, legislative, and judicial powers are
dispersed to the President, the Congress, and the Supreme Court, respectively. Each
is supreme within its own sphere. But none has the monopoly of power in times of
emergency. Each branch is given a role to serve as limitation or check upon the
other. This system does not weaken the President, it just limits his power,
using the language of McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain amount of faith in the basic
integrity and wisdom of the Chief Executive but, at the same time, it obliges him to
operate within carefully prescribed procedural limitations.
a. ÒFacial ChallengeÓ
Petitioners contend that PP 1017 is void on its face because of its Òoverbreadth.Ó
They claim that its enforcement encroached on both unprotected and protected rights
under Section 4, Article III of the Constitution and sent a Òchilling effectÓ to the
citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing
Òon their facesÓ statutes in free speech cases, also known under the American Law
as First Amendment cases.[103]
A plain reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or suppress all
forms of lawless violence. In United States v. Salerno,[104] the US Supreme Court
held that Òwe have not recognized an ÔoverbreadthÕ doctrine outside the limited
context of the First AmendmentÓ (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
Òreflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct.Ó Undoubtedly, lawless violence, insurrection and
rebellion are considered ÒharmfulÓ and Òconstitutionally unprotected conduct.Ó
In Broadrick v. Oklahoma,[105] it was held:
It remains a Ômatter of no little difficultyÕ to determine when a law may properly be
held void on its face and when Ôsuch summary actionÕ is inappropriate. But the
plain import of our cases is, at the very least, that facial overbreadth
adjudication is an exception to our traditional rules of practice and that its
function, a limited one at the outset, attenuates as the otherwise unprotected
behavior that it forbids the State to sanction moves from Ôpure speechÕ toward
conduct and that conduct Ðeven if expressive Ð falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes
which, by their terms, seek to regulate only Òspoken wordsÓ and again, that
Òoverbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct.Ó[106] Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as Òmanifestly strong
medicine,Ó to be used Òsparingly and only as a last resort,Ó and is Ògenerally
disfavored;Ó[107] The reason for this is obvious. Embedded in the traditional rules
governing constitutional adjudication is the principle that a person to whom a law may
be applied will not be heard to challenge a law on the ground that it may conceivably
be applied unconstitutionally to others, i.e., in other situations not before the
Court.[108] A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or
her; if the litigant prevails, the courts carve away the unconstitutional aspects of
the law by invalidating its improper applications on a case to case
98
basis. Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis, those
rules give way; challenges are permitted to raise the rights of third parties; and
the court invalidates the entire statute Òon its face,Ó not merely Òas applied forÓ so
that the overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the Òchilling;Ó deterrent effect of the overbroad
statute on third parties not courageous enough to bring suit. The Court assumes that
an overbroad lawÕs Òvery existence may cause others not before the court to refrain
from constitutionally protected speech or expression.Ó An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.
tool for testing Òon their facesÓ statutes in free speech cases. And like overbreadth,
it is said that a litigant may challenge a statute on its face only if it is vague in all its
possible applications. Again, petitioners did not even attempt to show that PP
1017 is vague in all its application. They also failed to establish that men of common
intelligence cannot understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:
In other words, a facial challenge using the overbreadth doctrine will require the Court
to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual First provision:
operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech
or expression. In Younger v. Harris,[109] it was held that: Òby virtue of the power vested upon me by Section 18, Artilce VII É do hereby
command the Armed Forces of the Philippines, to maintain law and order throughout
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring the Philippines, prevent or suppress all forms of lawless violence as well any act of
correction of these deficiencies before the statute is put into effect, is rarely if ever an insurrection or rebellionÓ
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above Second provision:
all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they might be
decided.
Òand to enforce obedience to all the laws and to all decrees, orders and regulations
And third, a facial challenge on the ground of overbreadth is the most difficult challenge promulgated by me personally or upon my direction;Ó
to mount successfully, since the challenger must establish that there can be no
instance when the assailed law may be valid. Here, petitioners did not even attempt
to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of Third provision:
vagueness. This, too, is unwarranted.

Related to the ÒoverbreadthÓ doctrine is the Òvoid for vagueness doctrineÓ which
holds that Òa law is facially invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its application.Ó[110] It is subject Òas provided in Section 17, Article XII of the Constitution do hereby declare a State of
to the same principles governing overbreadth doctrine. For one, it is also an analytical National Emergency.Ó
99
First Provision: Calling-out Power

The first provision pertains to the PresidentÕs calling-out power. In

100
Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga,
held that Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours
following such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual bases of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must promulgate
its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in or directly connected
with invasion.
During the suspension of the privilege of the writ, any person
thus arrested or detained shall be judicially charged within three days, otherwise he
shall be released.
grants the President, as Commander-in-Chief, a ÒsequenceÓ of graduated
powers. From the most to the least benign, these are: the calling-out power, the power
to suspend the privilege of the writ of habeas corpus, and the power to declare Martial
Law. Citing Integrated Bar of the Philippines v. Zamora,[112] the Court ruled that the
only criterion for the exercise of the calling-out power is that Òwhenever it becomes
necessary,Ó the President may call the armed forces Òto prevent or suppress
lawless violence, invasion or rebellion.Ó Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her OfficeÕs vast intelligence
network, she is in the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid
him in suppressing lawless violence, invasion and rebellion. This involves ordinary
police action. But every act that goes beyond the PresidentÕs calling-out power is
considered illegal or ultra vires. For this reason, a President must be careful in the
exercise of his powers. He cannot invoke a greater power when he wishes to act
under a lesser power. There lies the wisdom of our Constitution, the greater the power,
the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the
PresidentÕs authority to declare a Òstate of rebellionÓ (in Sanlakas) and the authority
to proclaim a state of national emergency. While President ArroyoÕs authority to
declare a Òstate of rebellionÓ emanates from her powers as Chief Executive, the
statutory authority cited inSanlakas was Section 4, Chapter 2, Book II of the Revised
Administrative Code of 1987, which provides:
SEC. 4. Ð Proclamations. Ð Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of which the
operation of a specific law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.
President ArroyoÕs declaration of a Òstate of rebellionÓ was merely an act
declaring a status or condition of public moment or interest, a declaration allowed under
Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without
legal significance, and deemed not written. In these cases, PP 1017 is more than
that. In declaring a state of national emergency, President Arroyo did not only rely on
Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article
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XII, a provision on the StateÕs extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017 calls for the
exercise of an awesome power. Obviously, such Proclamation cannot be deemed
harmless, without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP 1017 are its
wordings. It is plain therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a Òwarn[ing] to citizens that the military power
has been called upon by the executive to assist in the maintenance of law and order,
and that, while the emergency lasts, they must, upon pain of arrest and punishment,
not commit any acts which will in any way render more difficult the restoration of order
and the enforcement of law.Ó[113]
In his ÒStatement before the Senate Committee on JusticeÓ on March 13, 2006, Mr.
Justice Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three
powers of the President as Commander-in-Chief, the power to declare Martial Law
poses the most severe threat to civil liberties. It is a strong medicine which should not
be resorted to lightly. It cannot be used to stifle or persecute critics of the
government. It is placed in the keeping of the President for the purpose of enabling
him to secure the people from harm and to restore order so that they can enjoy their
individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians where civil courts are able
to function, nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It
is no more than a call by the President to the armed forces to prevent or suppress
lawless violence. As such, it cannot be used to justify acts that only under a valid
declaration of Martial Law can be done. Its use for any other purpose is a perversion
of its nature and scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without
judicial warrants; (b) ban on public assemblies; (c) take-over of news media and
agencies and press censorship; and (d) issuance of Presidential Decrees, are powers
which can be exercised by the President as Commander-in-Chief only where there is
a valid declaration of Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial
Law. It is merely an exercise of President ArroyoÕs calling-out power for the
armed forces to assist her in preventing or suppressing lawless violence.
Second Provision: ÒTake CareÓ Power
The second provision pertains to the power of the President to ensure that the laws be
faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,[115] the primary function of
the President is to enforce the laws as well as to formulate policies to be embodied in
existing laws. He sees to it that all laws are enforced by the officials and employees of
his department. Before assuming office, he is required to take an oath or affirmation
to the effect that as President of the Philippines, he will, among others, Òexecute its
laws.Ó[116] In the exercise of such function, the President, if needed, may employ the
powers attached to his office as the Commander-in-Chief of all the armed forces of the
country,[117] including the Philippine National Police[118] under the Department of Interior
and Local Government.[119]
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo,
Rafael Mariano, Teodoro Casi–o, Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the power to enact laws and
decrees in violation of Section 1, Article VI of the Constitution, which vests the power
to enact laws in Congress. They assail the clause Òto enforce obedience to all the
laws and to all decrees, orders and regulations promulgated by me personally or
upon my direction.Ó
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\ of governmental operations in pursuance of his duties as administrative head shall be
PetitionersÕ contention is understandable. A reading of PP 1017 operative clause
shows that it was lifted[120] from Former President MarcosÕ Proclamation No. 1081,
which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by
virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of
the Constitution under martial law and, in my capacity as their Commander-in-Chief, do
hereby command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience to all the
laws and decrees, orders and regulations promulgated by me personally or upon
my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its
enabling clause states: Òto enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or upon my direction.Ó Upon the
other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction.Ó
Is it within the domain of President Arroyo to promulgate ÒdecreesÓ?
PP 1017 states in part: Òto enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction.Ó
The President is granted an Ordinance Power under Chapter 2, Book III of Executive
Order No. 292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. Ñ Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Ñ Acts of the President which relate to particular aspect
promulgated in administrative orders.
Sec. 4. Proclamations. Ñ Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Ñ Acts of the President on matters of administrative
detail or of subordinate or temporary interest which only concern a particular officer or
office of the Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Ñ Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of
the departments, agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Ñ Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued
as general or special orders.
President ArroyoÕs ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP
1081. Presidential Decrees are laws which are of the same category and binding force
as statutes because they were issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973 Constitution.[121]
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate Òdecrees.Ó Legislative power is
peculiarly within the province of the Legislature. Section 1, Article VI categorically
states that Ò[t]he legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives.Ó To
be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify
President ArroyoÕs exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the
military?
As this Court stated earlier, President Arroyo has no authority to enact decrees.
It follows that these decrees are void and, therefore, cannot be enforced. With respect
to Òlaws,Ó she cannot call the military to enforce or implement certain laws, such as
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customs laws, laws governing family and property relations, laws on obligations and
contracts and the like. She can only order the military, under PP 1017, to enforce laws
pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17,
Article XII of the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience Òto all
the laws and to all decrees x x xÓ but also to act pursuant to the provision of Section
17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the
State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately-owned public utility or
business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when
she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP
1017 purports to grant the President, without any authority or delegation from
Congress, to take over or direct the operation of any privately-owned public utility or
business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the Òmartial
lawÓ thinking of the 1971 Constitutional Convention.[122] In effect at the time of its
approval was President MarcosÕ Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over Òthe management, control
and operation of the Manila Electric Company, the Philippine Long Distance
Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient
Airways . . . for the successful prosecution by the Government of its effort to contain,
solve and end the present national emergency.Ó
Petitioners, particularly the members of the House of Representatives, claim that
President ArroyoÕs inclusion of Section 17, Article XII in PP 1017 is an encroachment
on the legislatureÕs emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the PresidentÕs authority to declare Òa
state of national emergencyÓ and to exercise emergency powers. To the first,
as elucidated by the Court, Section 18, Article VII grants the President such power,
hence, no legitimate constitutional objection can be raised. But to the second, manifold
constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of
a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize
the President, for a limited period and subject to such restrictions as it may prescribe,
to exercise powers necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall cease upon the
next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not
only to war but also to Òother national emergency.Ó If the intention of the Framers
of our Constitution was to withhold from the President the authority to declare a Òstate
of national emergencyÓ pursuant to Section 18, Article VII (calling-out power) and grant
it to Congress (like the declaration of the existence of a state of war), then the Framers
could have provided so. Clearly, they did not intend that Congress should first
authorize the President before he can declare a Òstate of national emergency.Ó The
logical conclusion then is that President Arroyo could validly declare the existence of a
state of national emergency even in the absence of a Congressional enactment.
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But the exercise of emergency powers, such as the taking over of privately owned
public utility or business affected with public interest, is a

105
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be construed
together. Otherwise stated, different clauses, sections, and provisions of a constitution
which relate to the same subject matter will be construed together and considered in
the light of each other.[123] Considering that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national emergencies, they must be read
together to determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the
tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power not reposed upon
it. However, knowing that during grave emergencies, it may not be possible or
practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may
prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared
by Congress.[124]
Section 17, Article XII must be understood as an aspect of the emergency powers
clause. The taking over of private business affected with public interest is just another
facet of the emergency powers generally reposed upon Congress. Thus, when Section
17 states that the Òthe State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest,Ó it refers
to Congress, not the President. Now, whether or not the President may exercise such
power is dependent on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v.
Sawyer,[125] held:
It is clear that if the President had authority to issue the order he did, it must be found
in some provision of the Constitution. And it is not claimed that express constitutional
language grants this power to the President. The contention is that presidential power
should be implied from the aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that ÒThe executive Power shall
be vested in a President . . . .;Ó that Òhe shall take Care that the Laws be faithfully
executed;Ó and that he Òshall be Commander-in-Chief of the Army and Navy of the
United States.
The order cannot properly be sustained as an exercise of the PresidentÕs military
power as Commander-in-Chief of the Armed Forces. The Government attempts to do
so by citing a number of cases upholding broad powers in military commanders
engaged in day-to-day fighting in a theater of war. Such cases need not concern us
here. Even though Òtheater of warÓ be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-in-Chief of
the Armed Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping production. This is a job
for the nationÕs lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of our
Constitution, the PresidentÕs power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The Constitution limits his functions
in the lawmaking process to the recommending of laws he thinks wise and the
vetoing of laws he thinks bad. And the Constitution is neither silent nor
equivocal about who shall make laws which the President is to execute. The first
section of the first article says that ÒAll legislative Powers herein granted shall
be vested in a Congress of the United States. . .Ó[126]
Petitioner Cacho-Olivares, et al. contends that the term ÒemergencyÓ under Section
17, Article XII refers to Òtsunami,Ó Òtyphoon,Ó ÒhurricaneÓ and Òsimilar
occurrences.Ó This is a limited view of Òemergency.Ó
Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the elements of intensity, variety,
106
and perception.[127] Emergencies, as perceived by legislature or executive in the
United Sates since 1933, have been occasioned by a wide range of situations,
classifiable under three (3) principal heads: a) economic,[128] b) natural
disaster,[129] and c) national security.[130]
ÒEmergency,Ó as contemplated in our Constitution, is of the same breadth. It may
include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other
similar catastrophe of nationwide proportions or effect.[131] This is evident in the
Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the CommitteeÕs definition of Ònational emergencyÓ
which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about
strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term Ònational
emergency.Ó
MR. BENGZON. Unless they are of such proportions such that they would paralyze
government service.[132]
x x x x x x
MR. TINGSON. May I ask the committee if Ònational emergencyÓ refers to military
national emergency or could this be economic emergency?Ó
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.[133]
It may be argued that when there is national emergency, Congress may not be
able to convene and, therefore, unable to delegate to the President the power to take
over privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through
which extraordinary measures are exercised, remains in Congress even in times of
crisis.
Òx x x
After all the criticisms that have been made against the efficiency of the system
of the separation of powers, the fact remains that the Constitution has set up this form
of government, with all its defects and shortcomings, in preference to the commingling
of powers in one man or group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of other democracy-loving
peoples in this system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all the time, not
excepting periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours, have
specific functions of the legislative branch of enacting laws been surrendered to
another department Ð unless we regard as legislating the carrying out of a legislative
policy according to prescribed standards; no, not even when that Republic was fighting
a total war, or when it was engaged in a life-and-death struggle to preserve the
Union. The truth is that under our concept of constitutional government, in times of
extreme perils more than in normal circumstances Ôthe various branches, executive,
legislative, and judicial,Õ given the ability to act, are called upon Ôto perform the duties
and discharge the responsibilities committed to them respectively.Ó
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her during
the emergency to temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privately-
owned public utility or business affected with public interest. The President cannot
decide whether exceptional circumstances exist warranting the take over of
privately-owned public utility or business affected with public interest. Nor can
he determine when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of businesses affected
with public interest that should be taken over. In short, the President has no absolute
authority to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.
c. ÒAS APPLIED CHALLENGEÓ
107

One of the misfortunes of an emergency, particularly, that which pertains to security, is
that military necessity and the guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of conflict, many rights are curtailed
and trampled upon. Here, the right against unreasonable search and seizure; the
right against warrantless arrest; and the freedom of speech, of expression, of the
press, and of assembly under the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate Òdirect injury.Ó
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006,
they were arrested without warrants on their way to EDSA to celebrate the
20thAnniversary of People Power I. The arresting officers cited PP 1017 as basis of
the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc.
claimed that on February 25, 2006, the CIDG operatives Òraided and ransacked
without warrantÓ their office. Three policemen were assigned to guard their office as
a possible Òsource of destabilization.Ó Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were Òturned away and dispersedÓ when they went to EDSA and later, to
Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the Òdirect injuriesÓ allegedly suffered by the said petitioners
shows that they resulted from the implementation, pursuant to G.O. No. 5, of PP
1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of
these illegal acts? In general, does the illegal implementation of a law render it
unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they
may be abused and misabused[135] and may afford an opportunity for abuse in the
manner of application.[136] The validity of a statute or ordinance is to be determined
from its general purpose and its efficiency to accomplish the end desired, not from its
effects in a particular case.[137] PP 1017 is merely an invocation of the PresidentÕs
calling-out power. Its general purpose is to command the AFP to suppress all forms of
lawless violence, invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing
the police, expressly or impliedly, to conduct illegal arrest, search or violate the
citizensÕ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the
validity of the statute or ordinance is to be measured is the essential basis for the
exercise of power, and not a mere incidental result arising from its
exertion.[138] This is logical. Just imagine the absurdity of situations when laws maybe
declared unconstitutional just because the officers implementing them have acted
arbitrarily. If this were so, judging from the blunders committed by policemen in the
cases passed upon by the Court, majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are Òacts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines.Ó They are internal rules
issued by the executive officer to his subordinates precisely for
the proper and efficientadministration of law. Such rules and regulations create no
relation except between the official who issues them and the official who receives
them.[139] They are based on and are the product of, a relationship in which power is
their source, and obedience, their object.[140] For these reasons, one requirement for
these rules to be valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the Ònecessary
and appropriate actions and measures to suppress and prevent acts of terrorism
and lawless violence.Ó
Unlike the term Òlawless violenceÓ which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with Òinvasion, insurrection or
rebellion,Ó the phrase Òacts of terrorismÓ is still an amorphous and vague
concept. Congress has yet to enact a law defining and punishing acts of terrorism.
In fact, this Òdefinitional predicamentÓ or the Òabsence of an agreed definition of
terrorismÓ confronts not only our country, but the international
108
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the Òfight against terrorismÓ
has become one of the basic slogans when it comes to the justification of the use of
force against certain states and against groups operating internationally. Lists of states
Òsponsoring terrorismÓ and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly
determined by strategic interests.
The basic problem underlying all these military actions Ð or threats of the use of force
as the most recent by the United States against Iraq Ð consists in the absence of an
agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence
either by states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying ÒOne countryÕs terrorist is another
countryÕs freedom fighter.Ó The apparent contradiction or lack of consistency in the
use of the term ÒterrorismÓ may further be demonstrated by the historical fact that
leaders of national liberation movements such as Nelson Mandela in South Africa,
Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few,
were originally labeled as terrorists by those who controlled the territory at the time, but
later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts Ð the differentia
specifica distinguishing those acts from eventually legitimate acts of national resistance
or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in
vain to reach a consensus on the basic issue of definition. The organization has
intensified its efforts recently, but has been unable to bridge the gap between those
who associate ÒterrorismÓ with any violent act by non-state groups against civilians,
state functionaries or infrastructure or military installations, and those who believe in
the concept of the legitimate use of force when resistance against foreign occupation
or against systematic oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be illustrated by reference to
the contradicting categorization of organizations and movements such as Palestine
Liberation Organization (PLO) Ð which is a terrorist group for Israel and a liberation
movement for Arabs and Muslims Ð the Kashmiri resistance groups Ð who are
terrorists in the perception of India, liberation fighters in that of Pakistan Ð the earlier
Contras in Nicaragua Ð freedom fighters for the United States, terrorists for the
Socialist camp Ð or, most drastically, the Afghani Mujahedeen (later to become the
Taliban movement): during the Cold War period they were a group of freedom fighters
for the West, nurtured by the United States, and a terrorist gang for the Soviet
Union. One could go on and on in enumerating examples of conflicting categorizations
that cannot be reconciled in any way Ð because of opposing political interests that are
at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our analysis,
the basic reason for these striking inconsistencies lies in the divergent interest of
states. Depending on whether a state is in the position of an occupying power or in
that of a rival, or adversary, of an occupying power in a given territory, the definition of
terrorism will ÒfluctuateÓ accordingly. A state may eventually see itself as protector
of the rights of a certain ethnic group outside its territory and will therefore speak of a
Òliberation struggle,Ó not of ÒterrorismÓ when acts of violence by this group are
concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the definition
of terrorism exactly because of these conflicting interests of sovereign states that
determine in each and every instance how a particular armed movement (i.e. a non-
state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A Òpolicy
of double standardsÓ on this vital issue of international affairs has been the
unavoidable consequence.
This Òdefinitional predicamentÓ of an organization consisting of sovereign states Ð
and not of peoples, in spite of the emphasis in the Preamble to the United Nations
Charter! Ð has become even more serious in the present global power constellation:
one superpower exercises the decisive role in the Security Council, former great
powers of the Cold War era as well as medium powers are increasingly being
marginalized; and the problem has become even more acute since the terrorist attacks
of 11 September 2001 I the United States.[141]
The absence of a law defining Òacts of terrorismÓ may result in abuse and oppression
on the part of the police or military. An illustration is when a group of persons are
merely engaged in a drinking spree. Yet the military or the police may consider the
act as an act of terrorism and immediately arrest them pursuant to G.O. No.
5. Obviously, this is abuse and oppression on their part. It must be remembered that
109
an act can only be considered a crime if there is a law defining the same as such and
imposing the corresponding penalty thereon.
So far, the word ÒterrorismÓ appears only once in our criminal laws, i.e., in P.D. No.
1835 dated January 16, 1981 enacted by President Marcos during the Martial Law
regime. This decree is entitled ÒCodifying The Various Laws on Anti-Subversion and
Increasing The Penalties for Membership in Subversive Organizations.Ó The word
ÒterrorismÓ is mentioned in the following provision: ÒThat one who conspires with
any other person for the purpose of overthrowing the Government of the Philippines x
x x by force, violence, terrorism, x x x shall be punished by reclusion temporal x x x.Ó
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of
the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2)
laws, however, do not define Òacts of terrorism.Ó Since there is no law defining Òacts
of terrorism,Ó it is President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is absolute,
without restrictions. Consequently, there can be indiscriminate arrest without warrants,
breaking into offices and residences, taking over the media enterprises, prohibition and
dispersal of all assemblies and gatherings unfriendly to the administration. All these
can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out
power of the President. Certainly, they violate the due process clause of the
Constitution. Thus, this Court declares that the Òacts of terrorismÓ portion of G.O. No.
5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit
acts beyond what are necessary and appropriate to suppress and prevent lawless
violence, the limitation of their authority in pursuing the Order. Otherwise, such acts
are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that Òthe right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the persons
or things to be seized.Ó[142] The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized by a
validly issued search warrant or warrant of arrest. Thus, the fundamental protection
given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants
or warrants of arrest.[143]
In the Brief Account[144] submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP operatives
arrested him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon
City where he was fingerprinted, photographed and booked like a criminal
suspect; fourth, he was treated brusquely by policemen who Òheld his head and tried
to push himÓ inside an unmarked car; fifth, he was charged with Violation of Batas
Pambansa Bilang No. 880[145]and Inciting to Sedition; sixth, he was detained
for seven (7) hours; and seventh, he was eventually released for insufficiency of
evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
110
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner
DavidÕs warrantless arrest. During the inquest for the charges of inciting to
sedition andviolation of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-shirts with the
invective ÒOust Gloria NowÓand their erroneous assumption that petitioner David
was the leader of the rally.[146] Consequently, the Inquest Prosecutor ordered his
immediate release on the ground of insufficiency of evidence. He noted that petitioner
David was not wearing the subject t-shirt and even if he was wearing it, such fact is
insufficient to charge him with inciting to sedition. Further, he also stated that there
is insufficient evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally.[147]
But what made it doubly worse for petitioners David et al. is that not only was their right
against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the government for
redress of grievances.
ÒAssemblyÓ means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of freedom
of expression, this right is not to be limited, much less denied, except on a showing of
a clear and present danger of a substantive evil that Congress has a right to
prevent. In other words, like other rights embraced in the freedom of expression, the
right to assemble is not subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or authorization from the government
authorities except, of course, if the assembly is intended to be held in a public place, a
permit for the use of such place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime,
neither was there a showing of a clear and present danger that warranted the limitation
of that right. As can be gleaned from circumstances, the charges of inciting to
seditionand violation of BP 880 were mere afterthought. Even the Solicitor General,
during the oral argument, failed to justify the arresting officersÕ conduct. In De Jonge
v. Oregon,[148] it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of
meetings for peaceable political action cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals on that score. The question,
if the rights of free speech and peaceful assembly are not to be preserved, is not as to
the auspices under which the meeting was held but as to its purpose; not as to the
relations of the speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects. If the persons assembling have
committed crimes elsewhere, if they have formed or are engaged in a conspiracy
against the public peace and order, they may be prosecuted for their conspiracy or
other violations of valid laws. But it is a different matter when the State, instead of
prosecuting them for such offenses, seizes upon mere participation in a
peaceable assembly and a lawful public discussion as the basis for a criminal
charge.
On the basis of the above principles, the Court likewise considers the dispersal and
arrest of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malaca–angÕs directive canceling all
111
permits previously issued by local government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the principle that Òfreedom
of assembly is not to be limited, much less denied, except on a showing of a clear
and present danger of a substantive evil that the State has a right to
prevent.Ó[149] Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State may deny
the citizensÕ right to exercise it. Indeed, respondents failed to show or convince the
Court that the rallyists committed acts amounting to lawless violence, invasion or
rebellion. With the blanket revocation of permits, the distinction between protected
and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged
with the local government units. They have the power to issue permits and to revoke
such permits after due notice and hearing on the determination of the presence of
clear and present danger. Here, petitioners were not even notified and heard on the
revocation of their permits.[150] The first time they learned of it was at the time of the
dispersal. Such absence of notice is a fatal defect. When a personÕs right is
restricted by government action, it behooves a democratic government to see to it that
the restriction is fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech
i.e., the freedom of the press. PetitionersÕ narration of facts, which the Solicitor
General failed to refute, established the following: first, the Daily TribuneÕs offices
were searched without warrant; second, the police operatives seized several materials
for publication; third, the search was conducted at about 1:00 oÕ clock in the morning
of February 25, 2006; fourth, the search was conducted in the absence of any official
of theDaily Tribune except the security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief
of Staff Michael Defensor was quoted as saying that such raid was Òmeant to show
a Ôstrong presence,Õ to tell media outlets not to connive or do anything that
would help the rebels in bringing down this government.Ó Director General
Lomibao further stated that Òif they do not follow the standards Ðand the
standards are if they would contribute to instability in the government, or if they
do not subscribe to what is in General Order No. 5 and Proc. No. 1017 Ð we will
recommend a Ôtakeover.ÕÓ National Telecommunications Commissioner Ronald
Solis urged television and radio networks to ÒcooperateÓ with the government for the
duration of the state of national emergency. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set
out for media coverage during times when the national security is threatened.[151]
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down
the steps in the conduct of search and seizure. Section 4 requires that a search
warrant be issued upon probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 8 mandates that the search
of a house, room, or any other premise be made in the presence of the lawful
occupantthereof or any member of his family or in the absence of the latter, in the
presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be served in
the daytime, unless the property is on the person or in the place ordered to be
searched, in which case a direction may be inserted that it be served at any time of the
day or night. All these rules were violated by the CIDG operatives.
Not only that, the search violated petitionersÕ freedom of the press. The best gauge
of a free and democratic society rests in the degree of freedom enjoyed by its media. In
the Burgos v. Chief of Staff[152] this Court held that --
As heretofore stated, the premises searched were the business and printing offices of
the "Metropolitan Mail" and the "We ForumÓ newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further
result that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the
freedom of the press guaranteed under the fundamental law, and constitutes a
virtual denial of petitioners' freedom to express themselves in print. This state
of being is patently anathematic to a democratic framework where a free, alert
and even militant press is essential for the political enlightenment and growth of
the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
ÒMetropolitan MailÓ and ÒWe ForumÓ newspapers in the above case, yet it cannot
be denied that the CIDG operatives exceeded their enforcement duties. The search
112
and seizure of materials for publication, the stationing of policemen in the vicinity of
the The Daily Tribune offices, and the arrogant warning of government officials to SOLGEN BENIPAYO:
media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no Well, it was the police that did that, Your Honor. Not upon my instructions.
more and no less than what he is permitted to say on pain of punishment should he be
so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected to these SR. ASSO. JUSTICE PUNO:
arbitrary intrusions because of its anti-government sentiments. This Court cannot
tolerate the blatant disregard of a constitutional right even if it involves the most defiant Are you saying that the act of the policeman is illegal, it is not based on any
of our citizens. Freedom to comment on public affairs is essential to the vitality of a law, and it is not based on Proclamation 1017.
representative democracy. It is the duty of the courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments SOLGEN BENIPAYO:
thereon. The motto should always be obsta principiis.[154]
It is not based on Proclamation 1017, Your Honor, because there is nothing in
1017 which says that the police could go and inspect and gather clippings from Daily
Tribune or any other newspaper.

Incidentally, during the oral arguments, the Solicitor General admitted that the search SR. ASSO. JUSTICE PUNO:
of the TribuneÕs offices and the seizure of its materials for publication and other
papers are illegal; and that the same are inadmissible Òfor any purpose,Ó thus: Is it based on any law?

JUSTICE CALLEJO: SOLGEN BENIPAYO:

You made quite a mouthful of admission when you said that the policemen, As far as I know, no, Your Honor, from the facts, no.
when inspected the Tribune for the purpose of gathering evidence and you admitted
that the policemen were able to get the clippings. Is that not in admission of the SR. ASSO. JUSTICE PUNO:
admissibility of these clippings that were taken from the Tribune?
So, it has no basis, no legal basis whatsoever?
SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I
know, Your Honor, and these are inadmissible for any purpose.[155]
SOLGEN BENIPAYO:
xxx xxx xxx
Maybe so, Your Honor. Maybe so, that is why I said, I donÕt know if it is
SR. ASSO. JUSTICE PUNO: premature to say this, we do not condone this. If the people who have been
injured by this would want to sue them, they can sue and there are remedies for
These have been published in the past issues of the Daily Tribune; all you have this.[156]
to do is to get those past issues. So why do you have to go there at 1 oÕclock in the
morning and without any search warrant? Did they become suddenly part of the
evidence of rebellion or inciting to sedition or what?
113
Likewise, the warrantless arrests and seizures executed by the police were, according
to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I donÕt know whether this will clarify. The acts, the supposed illegal or unlawful
acts committed on the occasion of 1017, as I said, it cannot be condoned. You
cannot blame the President for, as you said, a misapplication of the law. These are
acts of the police officers, that is their responsibility.[157]
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and Òshould result in no constitutional or statutory breaches if applied
according to their letter.Ó
The Court has passed upon the constitutionality of these issuances. Its ratiocination
has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is
limited to the calling out by the President of the military to prevent or suppress lawless
violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O.
No. 5, the military and the police committed acts which violate the citizensÕ rights
under the Constitution, this Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. PanganibanÕs concurring opinion,
attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 Ð a supervening event
Ð would have normally rendered this case moot and academic. However, while PP
1017 was still operative, illegal acts were committed allegedly in pursuance
thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again
be issued. Already, there have been media reports on April 30, 2006 that allegedly
PP 1017 would be reimposed Òif the May 1 ralliesÓ become Òunruly and
violent.Ó Consequently, the transcendental issues raised by the parties should not be
Òevaded;Ó they must now be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a
call by the President for the AFP to prevent or suppress lawless violence. The
proclamation is sustained by Section 18, Article VII of the Constitution and the relevant
jurisprudence discussed earlier. However, PP 1017Õs extraneous provisions giving
the President express or implied power (1) to issue decrees; (2) to direct the AFP to
enforce obedience to all laws even those not related to lawless violence as well as
decrees promulgated by the President; and (3) to impose standards on media or any
form of prior restraint on the press, are ultra vires and unconstitutional. The Court
also rules that under Section 17, Article XII of the Constitution, the President, in the
absence of a legislation, cannot take over privately-owned public utility and private
business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President
Ð acting as Commander-in-Chief Ð addressed to subalterns in the AFP to carry out the
provisions of PP 1017. Significantly, it also provides a valid standard Ð that the military
and the police should take only the Ònecessary and appropriate actions and
measures to suppress and prevent acts of lawless violence.Ó But the words
Òacts of terrorismÓ found in G.O. No. 5 have not been legally defined and made
punishable by Congress and should thus be deemed deleted from the said G.O. While
ÒterrorismÓ has been denounced generally in media, no law has been enacted to
guide the military, and eventually the courts, to determine the limits of the AFPÕs
authority in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine
clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas;
(2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU
members; (3) the imposition of standards on media or any prior restraint on the press;
and (4) the warrantless search of the Tribune offices and the whimsical seizures of
some articles for publication and other materials, are not authorized by the Constitution,
the law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No.
5.
114
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not
been individually identified and given their day in court. The civil complaints or causes
of action and/or relevant criminal Informations have not been presented before this
Court. Elementary due process bars this Court from making any specific
pronouncement of civil, criminal or administrative liabilities. The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts constituting lawless
violence, invasion or rebellion and violating BP 880; the imposition of standards on
media or any form of prior restraint on the press, as well as the warrantless search of
It is well to remember that military power is a means to an end and substantive the Tribune offices and whimsical seizure of its articles for publication and other
civil rights are ends in themselves. How to give the military the power it needs materials, are declared UNCONSTITUTIONAL.
to protect the Republic without unnecessarily trampling individual rights is one
of the eternal balancing tasks of a democratic state. During emergency, No costs.
governmental action may vary in breadth and intensity from normal times, yet they
should not be arbitrary as to unduly restrain our peopleÕs liberty. SO ORDERED.

Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority
to cope with crises without surrendering the two vital principles of constitutionalism: the
maintenance of legal limits to arbitrary power, and political responsibility of the
government to the governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-
Arroyo on the AFP to prevent or suppress lawless violence. However, the
provisions of PP 1017 commanding the AFP to enforce laws not related to lawless
violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does not authorize the President to take
over privately-owned public utility or business affected with public interest without prior
legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and
the PNP should implement PP 1017, i.e. whatever is Ònecessary and appropriate
actions and measures to suppress and prevent acts of lawless
violence.Ó Considering that Òacts of terrorismÓ have not yet been defined and made
punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
115
 G.R. No. L-35556 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF VERONICA L.
YUYITUNG AND TAN CHIN HIAN, petitioners,
G.R. No. L-35546 September 17, 1974 vs.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN.
AQUINO, JR., RAMON MITRA, JR., FRANCISCO RODRIGO, AND NAPOLEON ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND
RAMA, petitioners, BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE
vs. CONSTABULARY, respondents.
HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. G.R. No. L-35567 September 17, 1974
ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF AMANDO
GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY, respondents. DORONILA JUAN L. MERCADO, HERNANDO L. ABAYA, ERNESTO GRANADA,
G.R. No. L-35538 September 17, 1974 LUIS D. BELTRAN, TAN CHIN HIAN, BREN GUIAO, RUBEN CUSIPAG, ROBERTO
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOAQUIN P. ORDOÑEZ, MANUEL ALMARIO AND WILLIE BAUN, petitioners,
ROCES, TEODORO M. LOCSIN, SR., ROLANDO FADUL, ROSALINA GALANG, vs.
GO ENG GUAN, MAXIMO V. SOLIVEN, RENATO CONSTANTINO, AND LUIS R. HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT.
MAURICIO, petitioners, GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE
vs. PHILIPPINES; AND BRIG. GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE
THE SECRETARY OF NATIONAL DEFENSE; THE CHIEF OF STAFF, ARMED CONSTABULARY, respondents.
FORCES OF THE PHILIPPINES; THE CHIEF, PHILIPPINE CONSTABULARY, et al., G.R. No. L-35571 September 17, 1974. *3
respondents. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BREN Z. GUIAO,
G.R. No. L-35539 September 17, 1974 TERESITA M. GUIAO,petitioner,
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOSE W. DIOKNO, vs.
CARMEN I. DIOKNO, *1petitioner, JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; LT. GEN.
vs. ROMEO ESPINO, CHIEF OF STAFF OF THE ARMED FORCES OF THE
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; ROMEO PHILIPPINES: AND BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE
ESPINO, THE CHIEF OF STAFF, ARMED FORCES OF THE CONSTABULARY, respondents.
PHILIPPINES.respondents. G.R. No. L-35573 September 17, 1974
G.R. No. L-35540 September 17, 1974 ERNESTO RONDON, petitioner,
MAXIMO V. SOLIVEN, NAPOLEON G. RAMA, AND JOSE MARI vs.
VELEZ, petitioners, HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. FIDEL
vs. V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY; AND MAJOR RODULFO
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; HON. MIANA, respondents.
FRANCISCO TATAD, PRESS SECRETARY; AND GEN. FIDEL V. RAMOS, CHIEF,
PHILIPPINE CONSTABULARY, respondents. MAKALINTAL, C.J.:p
G.R. No. L-35547 September 17, 1974 *2 These cases are all petitions for habeas corpus, the petitioners having been arrested
ENRIQUE VOLTAIRE GARCIA II, petitioner, and detained by the military by virtue of the President's Proclamation No. 1081, dated
vs. September 21, 1972.
BRIG. GEN. FIDEL RAMOS, CHIEF, PHILIPPINE CONSTABULARY; GEN. ROMEO At the outset a word of clarification is in order. This is not the decision of the Court in
ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND HON. the sense that a decision represents a consensus of the required majority of its
JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE, respondents. members not only on the judgment itself but also on the rationalization of the issues
116
and the conclusions arrived at. On the final result the vote is practically unanimous; this
is a statement of my individual opinion as well as a summary of the voting on the major
issues. Why no particular Justice has been designated to write just one opinion for the
entire Court will presently be explained.
At one point during our deliberations on these cases it was suggested that as Chief
Justice I should write that opinion. The impracticability of the suggestion shortly
became apparent for a number of reasons, only two of which need be mentioned. First,
the discussions, as they began to touch on particular issues, revealed a lack of
agreement among the Justices as to whether some of those issues should be taken up
although it was not necessary to do so, they being merely convenient for the purpose
of ventilating vexing questions of public interest, or whether the decision should be
limited to those issues which are really material and decisive in these cases. Similarly,
there was no agreement as to the manner the issues should be treated and developed.
The same destination would be reached, so to speak, but through different routes and
by means of different vehicles of approach. The writing of separate opinions by
individual Justices was thus unavoidable, and understandably so for still another
reason, namely, that although little overt reference to it was made at the time, the future
verdict of history was very much a factor in the thinking of the members, no other case
of such transcendental significance to the life of the nation having before confronted
this Court. Second — and this to me was the insuperable obstacle — I was and am of
the opinion, which was shared by six other Justices 1 at the time the question was voted
upon, that petitioner Jose W. Diokno's motion of December 28, 1973 to withdraw his
petition (G.R. No. L-35539) should be granted, and therefore I was in no position to set
down the ruling of the Court on each of the arguments raised by him, except indirectly,
insofar as they had been raised likewise in the other cases.
It should be explained at this point that when the Court voted on Diokno's motion to
withdraw his petition he was still under detention without charges, and continued to
remain so up to the time the separate opinions of the individual Justices were put in
final form preparatory to their promulgation on September 12, which was the last day
of Justice Zaldivars tenure in the Court. 2 Before they could be promulgated, however,
a major development supervened: petitioner Diokno was released by the President in
the morning of September 11, 1974. In view thereof all the members of this Court
except Justice Castro agreed to dismiss Diokno's petition on the ground that it had
become moot, with those who originally voted to grant the motion for withdrawal citing
said motion as an additional ground for such dismissal.
The petitioners in the other cases, except Benigno Aquino, Jr. (G.R. No. L-35546),
either have been permitted to withdraw their petitions or have been released from
detention subject to certain restrictions. 3 In the case of Aquino, formal charges of
murder, subversion and illegal possession of firearms were lodged against him with a
Military Commission on August 11, 1973; and on the following August 23 he challenged
the jurisdiction of said Commission as well as his continued detention by virtue of those
charges in a petition for certiorari and prohibition filed in this Court (G.R. No.
L-37364). The question came up as to whether or not Aquino's petition for habeas
corpus should be dismissed on the ground that the case as to him should more
appropriately be resolved in this new petition. Of the twelve Justices, however, eight
voted against such dismissal and chose to consider the case on the merits. 4
On Diokno's motion to withdraw his petition I voted in favor of granting it for two
reasons. In the first place such withdrawal would not emasculate the decisive and
fundamental issues of public interest that demanded to be resolved, for they were also
raised in the other cases which still remained pending. Secondly, since it was this
petitioner's personal liberty that was at stake, I believed he had the right to renounce
the application for habeas corpus he initiated. Even if that right were not absolute I still
would respect his choice to remove the case from this Court's cognizance, regardless
of the fact that I disagreed with many of his reasons for so doing. I could not escape a
sense of irony in this Court's turning down the plea to withdraw on the ground, so he
alleges among others, that this is no longer the Court to which he originally applied for
relief because its members have taken new oaths of office under the 1973 Constitution,
and then ruling adversely to him on the merits of his petition.
It is true that some of the statements in the motion are an affront to the dignity of this
Court and therefore should not be allowed to pass unanswered. Any answer, however,
would not be foreclosed by allowing the withdrawal. For my part, since most of those
statements are of a subjective character, being matters of personal belief and opinion,
I see no point in refuting them in these cases. Indeed my impression is that they were
beamed less at this Court than at the world outside and designed to make political
capital of his personal situation, as the publicity given to them by some segments of
the foreign press and by local underground propaganda news sheets subsequently
confirmed. It was in fact from that perspective that I deemed it proper to respond in
kind, that is, from a non-judicial forum, in an address I delivered on February 19, 1974
before the LAWASIA, the Philippine Bar Association and the Philippine Lawyers'
Association. Justice Teehankee, it may be stated, is of the opinion that a simple
majority of seven votes out of twelve is legally sufficient to make the withdrawal of
Diokno's petition effective, on the theory that the requirement of a majority of eight
votes applies only to a decision on the merits.
In any event, as it turned out, after petitioner Diokno was released by the President on
September 11 all the members of this Court except Justice Castro were agreed that
his petition had become moot and therefore should no longer be considered on the
merits. This notwithstanding, some of the opinions of the individual members,
particularly Justices Castro and Teehankee, should be taken in the time setting in which
they were prepared, that is, before the order for the release of Diokno was issued.
The Cases.
117
The events which form the background of these nine petitions are related, either briefly
or in great detail, in the separate opinions filed by the individual Justices. The
petitioners were arrested and held pursuant to General Order No. 2 of the President
(September 22, 1972), "for being participants or for having given aid and comfort in the
conspiracy to seize political and state power in the country and to take over the
Government by force ..."
General Order No. 2 was issued by the President in the exercise of the powers he
assumed by virtue of Proclamation No. 1081 (September 21, 1972) placing the entire
country under martial law. The portions of the proclamation immediately in point read
as follows:
xxx xxx xxx
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by
virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby place the entire Philippines as defined in Article I, Section 1 of
the Constitution under martial law and, in my capacity as their Commander-in-Chief,
do hereby command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as well as
any act of insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my direction.
In addition, I do hereby order that all persons presently detained, as well as all others
who may hereafter be similarly detained for the crimes of insurrection or rebellion, and
all other crimes and offenses committed in furtherance or on the occasion thereof, or
incident thereto, or in connection therewith, for crimes against national security and the
law of nations, crimes against public order, crimes involving usurpation of authority,
rank, title and improper use of names, uniforms and insignia, crimes committed by
public officers, and for such other crimes as will be enumerated in orders that I shall
subsequently promulgate, as well as crimes as a consequence of any violation of any
decree, order or regulation promulgated by me personally or promulgated upon my
direction shall be kept under detention until otherwise ordered released by me or by
my duly designated representative.
The provision of the 1935 Constitution referred to in the proclamation reads: "the
President shall be commander-in-chief of all armed forces of the Philippines and,
whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion,
insurrection, or rebellion, or imminent danger thereof, when the public safety requires
it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines
or any part thereof under martial law."
1. The first major issue raised by the parties is whether this Court may inquire into the
validity of Proclamation No. 1081. Stated more concretely, is the existence of
conditions claimed to justify the exercise of the power to declare martial law subject to
judicial inquiry? Is the question political or justiciable in character?
Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino hold that the question is
political and therefore its determination is beyond the jurisdiction of this Court. The
reasons are given at length in the separate opinions they have respectively signed.
Justice Fernandez adds that as a member of the Convention that drafted the 1973
Constitution he believes that "the Convention put an imprimatur on the proposition that
the validity of a martial law proclamation and its continuation is political and non-
justiciable in character."
Justice Barredo, on the other hand, believes that political questions are not per
se beyond the Court's jurisdiction, the judicial power vested in it by the Constitution
being plenary and all-embracing, but that as a matter of policy implicit in the
Constitution itself the Court should abstain from interfering with the Executive's
Proclamation, dealing as it does with national security, for which the responsibility is
vested by the charter in him alone. But the Court should act, Justice Barredo opines,
when its abstention from acting would result in manifest and palpable transgression of
the Constitution proven by facts of judicial notice, no reception of evidence being
contemplated for purposes of such judicial action.
It may be noted that the postulate of non-justiciability as discussed in those opinions
involves disparate methods of approach. Justice Esguerra maintains that the findings
of the President on the existence of the grounds for the declaration of martial law are
final and conclusive upon the Courts. He disagrees vehemently with the ruling
inLansang vs. Garcia, 42 SCRA 448, December 11, 1971, and advocates a return
to Barcelon vs. Baker, 5 Phil. 87 (1905), and Montenegro vs. Castañeda, 91 Phil. 882
(1952). Justice Barredo, for his part, holds that Lansang need not be overturned,
indeed does not control in these cases. He draws a distinction between the power of
the President to suspend the privilege of the writ of habeas corpus, which was the issue
in Lansang, and his power to proclaim martial law, calling attention to the fact that while
the Bill of Rights prohibits suspension of the privilege except in the instances specified
therein, it places no such prohibition or qualification with respect to the declaration of
martial law.
Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino concur, finds
that there is no dispute as to the existence of a state of rebellion in the country, and on
that premise emphasizes the factor of necessity for the exercise by the President of his
power under the Constitution to declare martial law, holding that the decision as to
whether or not there is such necessity is wholly confided to him and therefore is not
subject to judicial inquiry, his responsibility being directly to the people.
Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and
Muñoz Palma. They hold that the constitutional sufficiency of the proclamation may be
inquired into by the Court, and would thus apply the principle laid down in Lansang
118
although that case refers to the power of the President to suspend the privilege of the
writ of habeas corpus. The recognition of justiciability accorded to the question in
Lansang, it should be emphasized, is there expressly distinguished from the power of
judicial review in ordinary civil or criminal cases, and is limited to ascertaining "merely
whether he (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." The test
is not whether the President's decision is correct but whether, in suspending the writ,
he did or did not act arbitrarily. Applying this test, the finding by the Justices just
mentioned is that there was no arbitrariness in the President's proclamation of martial
law pursuant to the 1935 Constitution; and I concur with them in that finding. The factual
bases for the suspension of the privilege of the writ of habeas corpus, particularly in
regard to the existence of a state of rebellion in the country, had not disappeared,
indeed had been exacerbated, as events shortly before said proclamation clearly
demonstrated. On this Point the Court is practically unanimous; Justice Teehankee
merely refrained from discussing it.
Insofar as my own opinion is concerned the cleavage in the Court on the issue of
justiciability is of not much more than academic interest for purposes of arriving at a
judgment. I am not unduly exercised by Americas decisions on the subject written in
another age and political clime, or by theories of foreign authors in political science.
The present state of martial law in the Philippines is peculiarly Filipino and fits into no
traditional patterns or judicial precedents.
In the first place I am convinced (as are the other Justices), without need of receiving
evidence as in an ordinary adversary court proceeding, that a state of rebellion existed
in the country when Proclamation No. 1081 was issued. It was a matter of
contemporary history within the cognizance not only of the courts but of all observant
people residing here at the time. Many of the facts and events recited in detail in the
different "Whereases" of the proclamation are of common knowledge. The state of
rebellion continues up to the present. The argument that while armed hostilities go on
in several provinces in Mindanao there are none in other regions except in isolated
pockets in Luzon, and that therefore there is no need to maintain martial law all over
the country, ignores the sophisticated nature and ramifications of rebellion in a modern
setting. It does not consist simply of armed clashes between organized and identifiable
groups on fields of their own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no actual fighting.
Underground propaganda, through printed news sheets or rumors disseminated in
whispers; recruitment of armed and ideological adherents, raising of funds,
procurement of arms and material, fifth-column activities including sabotage and
intelligence — all these are part of the rebellion which by their nature are usually
conducted far from the battle fronts. They cannot be counteracted effectively unless
recognized and dealt with in that context.
Secondly, my view, which coincides with that of other members of the Court as stated
in their opinions, is that the question of validity of Proclamation No. 1081 has been
foreclosed by the transitory provision of the 1973 Constitution [Art. XVII, Sec. 3(2)] that
"all proclamations, orders, decrees, instructions, and acts promulgated, issued, or done
by the incumbent President shall be part of the law of the land and shall remain valid,
legal, binding and effective even after ... the ratification of this Constitution ..." To be
sure, there is an attempt in these cases to resuscitate the issue of the effectivity of the
new Constitution. All that, however, is behind us now. The question has been laid to
rest by our decision in Javellana vs. Executive Secretary (L-36142, 50 SCRA 30,
March 31, 1973), and of course by the existing political realities both in the conduct of
national affairs and in our relations with other countries.
On the effect of the transitory provision Justice Muñoz Palma withholds her assent to
any sweeping statement that the same in effect validated, in the constitutional sense,
all "such proclamations, decrees, instructions, and acts promulgated, issued, or done
by the incumbent President." All that she concedes is that the transitory provision
merely gives them "the imprimatur of a law but not of a constitutional mandate," and as
such therefore "are subject to judicial review when proper under the Constitution.
Finally, the political-or-justiciable question controversy indeed, any inquiry by this Court
in the present cases into the constitutional sufficiency of the factual bases for the
proclamation of martial law — has become moot and purposeless as a consequence
of the general referendum of July 27-28, 1973. The question propounded to the voters
was: "Under the (1973) Constitution, the President, if he so desires, can continue in
office beyond 1973. Do you want President Marcos to continue beyond 1973 and finish
the reforms he initiated under Martial Law?" The overwhelming majority of those who
cast their ballots, including citizens between 15 and 18 years, voted affirmatively on
the proposal. The question was thereby removed from the area of presidential power
under the Constitution and transferred to the seat of sovereignty itself. Whatever may
be the nature of the exercise of that power by the President in the beginning — whether
or not purely political and therefore non-justiciable — this Court is precluded from
applying its judicial yardstick to the act of the sovereign.
2. With respect to the petitioners who have been released from detention but have not
withdrawn their petitions because they are still subject to certain restrictions, 5 the ruling
of the Court is that the petitions should be dismissed. The power to detain persons
even without charges for acts related to the situation which justifies the proclamation
of martial law, such as the existence of a state of rebellion, necessarily implies the
power (subject, in the opinion of the Justices who consider Lansang applicable, to the
same test of arbitrariness laid down therein), to impose upon the released detainees
conditions or restrictions which are germane to and necessary to carry out the purposes
of the proclamation. Justice Fernando, however, "is for easing the restrictions on the
right to travel of petitioner Rodrigo" and others similarly situated and so to this extent
119
dissents from the ruling of the majority; while Justice Teehankee believes that those I invite the reader to assess my 38-page separate opinion which immediately follows,
restrictions do not constitute deprivation of physical liberty within the meaning of the in the light of the foregoing context and factual setting.
constitutional provision on the privilege of the writ ofhabeas corpus. FRED RUIZ CASTRO
It need only be added that, to my mind, implicit in a state of martial law is the suspension Associate Justice.
of the said privilege with respect to persons arrested or detained for acts related to the
basic objective of the proclamation, which is to suppress invasion, insurrection, or
rebellion, or to safeguard public safety against imminent danger thereof. The
preservation of society and national survival take precedence. On this particular point,
that is, that the proclamation of martial law automatically suspends the privilege of the
writ as to the persons referred to, the Court is practically unanimous. Justice Fernando,
however, says that to him that is still an open question; and Justice Muñoz Palma
qualifiedly dissents from the majority in her separate opinion, but for the reasons she
discusses therein votes for the dismissal of the petitions.
IN VIEW OF ALL THE FOREGOING AND FOR THE REASONS STATED BY THE
MEMBERS OF THE COURT IN THEIR SEPARATE OPINIONS, JUDGMENT IS
HEREBY RENDERED DISMISSING ALL THE PETITIONS, EXCEPT THOSE WHICH
HAVE BEEN PREVIOUSLY WITHDRAWN BY THE RESPECTIVE PETITIONERS
WITH THE APPROVAL OF THIS COURT, AS HEREINABOVE MENTIONED. NO
COSTS.
Makasiar, Esguerra, Fernandez, Muñoz Palma and Aquino, JJ., concur.
Prefatory Note
(written on September 12, 1974)
My separate opinion below in the nine cases at bar was handed to Chief Justice
Querube C. Makalintal on Monday, September 9, 1974, for promulgation (together with
the individual opinions of the Chief Justice and the other Justices) on September 12
(today) as agreed upon by the Court.
On September 11 the petitioner Jose W. Diokno was released from military custody.
The implications of this supervening event were lengthily discussed by the Court in its
deliberations in the afternoon. Eleven members thereafter voted to dismiss Diokno's
petition as being "moot and academic;" I cast the lone dissenting vote. Although
perhaps in the strictest technical sense that accords with conventional legal wisdom,
the petition has become "moot" because Diokno has been freed from physical
confinement, I am nonetheless persuaded that the grave issues of law he has posed
and the highly insulting and derogatory imputations made by him against the Court and
its members constitute an inescapable residue of questions of transcendental
dimension to the entire nation and its destiny and to the future of the Court — questions
that cannot and should not be allowed to remain unresolved and unanswered.
I have thus not found it needful nor even advisable to recast my separate opinion or
change a word of it.

120

G.R. No. L-533 August 20, 1946
RAMON RUFFY, ET AL., petitioners,
vs.
THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.
Placido C. Ramos for petitioners.
Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for respondents.
TUASON, J.:
This was a petition for prohibition, praying that the respondents, the Chief of Staff and
the General Court Martial of the Philippine Army, be commanded to desist from further
proceedings in the trial of petitioners before that body. Preliminary injunction having
been denied by us and the General Court Martial having gone ahead with the trial,
which eventually resulted in the acquittal of one of the defendants, Ramon Ruffy, the
dismissal of the case as to another, Victoriano Dinglasan, and the conviction of Jose
L. Garcia, Prudente M. Francisco, Dominador Adeva and Andres Fortus, the last-
named four petitioners now seek in their memorandum to convert the petition into one
for certiorari, with the prayer that the records of the proceedings before the General
Court Martial be ordered certified to this court for review.
The ground of the petition was that the petitioners were not subject to military law at
the time the offense for which they had been placed on trial was committed. In their
memorandum they have raised an additional question of law — that the 93d Article of
War is unconstitutional.
An outline of the petitioner's previous connection with the Philippine Army, the
Philippine Constabulary, and/or with guerrilla organizations will presently be made.
This outline is based on allegations in the petition and the answer, and on exhibits
attached thereto and to the parties' memoranda, exhibits which were offered in the
course of the oral argument and admitted without objection. The said exhibits are public
documents certified by the officials who had them in custody in their official capacity.
They are presumed to be authentic, as we have no doubt they are.
It appears that at the outbreak of war on December 8, 1941, Ramon Ruffy was the
Provincial Commander, Prudente M. Francisco, a junior officer, and Andres Fortus, a
corporal, all of the Philippine Constabulary garrison stationed in Mindoro. When, on
February 27, 1942, the Japanese forces landed in Mindoro, Major Ruffy retreated to
the mountains instead of surrendering to the enemy, disbanded his company, and
organized and led a guerrilla outfit known as Bolo Combat team of Bolo Area.
Lieutenant Francisco, Corporal Fortus and Jose L. Garcia, the last then a civilian joined
Major Ruffy's organization towards the latter part of 1942, while Dominador Adeva and
Victoriano Dinglasan, then likewise civilians, became its members some time in 1943..
Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant colonel of the
Philippine Army, also took to the hills of Panay and led the operation of the 6th Military
District, one of the districts into which the Philippine Army had been divided before the
war. About November, 1942, Colonel Peralta succeeded in contacting the General
Headquarters of General MacArthur in Australia as the result of which on February 13,
1943, the 6th Military District was recognized by the Headquarters of the Southwest
Pacific Area as a military unit and part of its command.
Even before General MacArthur's recognition of the 6th Military District Colonel Peralta
had extended its sphere of operation to comprise Mindoro and Marinduque, and had,
on January 2, 1943, named Major Ruffy as Acting Commander for those two provinces
and Commanding Officer of the 3rd Battalion, 66 Infantry 61st Division, Philippine
Corps. After the recognition, 2d Lieut. Prudente M. Francisco, by virtue of Special
Orders No. 99, dated November 2, 1943, and signed by Enrique L. Jurado, Major, OSE,
Commanding, was assigned as S-3 in the Bolo Area. Major, later Lieut. Col., Jurado, it
should be noted, had been dispatched by the 6th Military District to Mindoro to assume
operational control supervision over the Bolo Area unit and to make and direct the
necessary report to the Headquarters, 6th Military District, in Panay. On April 26, 1944,
by General Orders No. 40 of the 6th Military District, 2d Lieutenant Francisco was
promoted to the rank of 1st Lieutenant (Brevet), effective April 15, 1944, subject to
approval by the President of the Philippines, and was re-assigned to the Bolo Area. As
to Andres Fortus he was assigned to the same Bolo Area as probationary 3d lieutenant
for two-month probationary training, by the Headquarters of the 6th Military District, as
per Special Orders No. 70, dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th Military District, dated January
1943, and signed by L.R. Relunia, Lieut. Col., CE, Chief of Staff, Jose L. Garcia and
Dominador Adeva were appointed 3d lieutenants, infantry as of December 31, 1942.
Garcia later was promoted to the rank of captain, effective March 15, 1943, as per
Special Orders No. 82, issued in the field, 6th Military District, and dated August 28,
1943. On May 24, 1943, Jose L. Garcia took his oath before Captain Esteban P.
Beloncio, then Acting Commanding Officer, 3d Battalion, 66th Infantry Regiment, 61st
Division, 6th Military District.
As has been said, the 6th Military District sent Lieut. Col. Enrique L. Jurado to be
Commanding Officer of the Bolo Combat Team in Mindoro and to undertake other
missions of Military character. Pursuant to instructions, Colonel Jurado on November
2, 1943, assigned Major Ruffy as Commanding Officer of the Bolo Area with 3d Lieut.
Dominador Adeva and 2d Lieut. Prudente M. Francisco as members of his staff and
Victoriano Dinglasan as Finance Officer, as per Special Orders No. 99 dated November
121
2, 1943. In a memorandum of Colonel Jurado for Major Ruffy bearing date 25 June,
1944, it was stated that Captain Garcia had been given P5,000 for palay and Lieut.
Francisco P9,000, P5,000 for palay and P4,000 for salary of the personnel B.
Company.
A change in the command of the Bolo Area was effected by Colonel Jurado on June 8,
1944: Major Ruffy was relieved of his assignment as Commanding Officer, Bolo
Battalion, and Capt. Esteban P. Beloncio was put in Ruffy's place. On October 19,
1944, Lieut. Col. Jurado was slain allegedly by the petitioners. After the commission of
this crime, the petitioners, it is alleged, seceded from the 6th Military District. It was this
murder which gave rise to petitioner's trial, the legality of which is now being contested.
On July 26, 1941, the President of the Untied States issued a military order the
pertinent paragraph of which stated: ". . . as Commander in Chief of the Army and Navy
of the United States, I hereby call and order into the service of the armed forces of the
United States Army, for the period of the existing emergency, and place under the
command of the general officer, United States Army, to be designated by the Secretary
of War, from time to time, all of the organized military forces of the Government of the
Commonwealth." Following the issuance of President Roosevelt's order General
Douglas MacArthur was appointed Commanding General of the United States Armed
Forces in the Far East.
It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that "by the
enemy occupation of the Philippines, the National Defense Act and all laws and
regulations creating and governing the existence of the Philippine Army including the
Articles of War, were suspended and in abeyance during such belligerent occupation."
The paragraph quoted in the petitioner's memorandum from Winthrop's Military Law
and Precedents and the subsequent paragraph which has been omitted furnish a
complete answer to petitioner's contention of the Philippines by Japanese forces, the
officers and men of the Philippine Army did not cease to be fully in the service, though
in a measure,' only in a measure, they were not subject to the military jurisdiction, if
they were not active duty. In the latter case, like officers and soldiers on leave of
absence or held as prisoners of war, they could not be held guilty of a breach of the
discipline of the command or of a neglect of duty, or disobedience of orders, or mutiny,
or subject to a military trial therefor; but for an act unbecoming an officer and a
gentleman, or an act which constitutes an offense of the class specified in the 95th
Article of War, they may in general be legally held subject to military jurisdiction and
trial. "So a prisoner of war, though not subject, while held by the enemy, to the discipline
of his own army, would, when exchanged of paroled, be not exempt from liability for
such offenses as criminal acts or injuriuos conduct committed during his captivity
against other officers or soldiers in the same status." (Winthrop's Military Law and
Precedents, 2d Edition, pp. 91, 92.)
The rule invoked by counsel, namely, that laws of political nature or affecting political
relations are considered superseded or in abeyance during the military occupation, is
intended for the governing of the civil inhabitants of the occupied territory. It is not
intended for and does not bind the enemies in arms. This is self-evident from the very
nature of things. The paradox of a contrary ruling should readily manifest itself. Under
the petitioner's theory the forces of resistance operating in an occupied territory would
have to abide by the outlawing of their own existence. They would be stripped of the
very life-blood of an army, the right and the ability to maintain order and discipline within
the organization and to try the men guilty of breach thereof.
The surrender by General Wainright of the Fil-American Forces does not profit the
petitioner's who were former members of the Philippine Constabulary any more than
does the rule of war or international law they cite. The fall of Bataan and Corregidor did
not end the war. It did not, legally or otherwise, keep the United States and the
Commonwealth of the Philippines from organizing a new army, regular or irregular, out
of new men and men in the old service who had refused to surrender or who having
surrendered, had decided to carry on the fight through other diverse means and
methods. The fall of Corregidor and Bataan just marked the beginning of the gigantic
preparation for the gigantic drive that was to fight its way to and beyond the Philippines
in fulfillment of General MacArthur's classic promise, "I shall return." The heroic role
which the guerrillas played in that preparation and in the subsequent liberation of the
Philippines is now history.
Independently of their previous connection with the Philippine Army and the Philippine
Constabulary, Captain Francisco and Lieutenant Fortus as well as Major Garcia and
Lieutenant Adeva were subject to military jurisdiction.
The 2d Article of War defines and enumerates the persons subject to military law as
follows:
Art. 2. Persons Subject to Military Law. — The following persons are subject to these
articles and shall be understood as included in the term "any person subject to military
law" or "persons subject to military law," whenever used in these articles:
(a) All officers, members of the Nurse Corps and soldiers belonging to the Regular
Force of the Philippine Army; all reservists, from the dates of their call to active duty
and while on such active duty; all trainees undergoing military instructions; and all other
persons lawfully called, drafted, or order to obey the same;
(b) Cadets, flying cadets, and probationary third lieutenants;
(c) All retainers to the camp and all persons accompanying or serving with the Army of
the Philippines in the field in time of war or when martial law is declared though not
otherwise subject to these articles;
(d) All persons under sentences adjudged by courts-martial.
It is our opinion that the petitioners come within the general application of the clause in
sub-paragraph (a); "and all other persons lawfully called, drafted, or ordered into, or to
122
duty for training in, the said service, from the dates they are required by the terms of of the executive power, provided by Congress for the President as Commander in
the call, draft, or order to obey the same." By their acceptance of appointments as Chief, to aid him in properly commanding the army and navy and enforcing discipline
officers in the Bolo Area from the General Headquarters of the 6th Military District, they therein, and utilized under his orders or those of his authorized military
became members of the Philippine Army amendable to the Articles of War. The Bolo representatives." (Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Of equal
Area, as has been seen, was a contigent of the 6th Military District which, as has also interest Clode, 2 M. F., 361, says of these courts in the British law: "It must never be
been pointed out, had been recognized by and placed under the operational control of lost sight of that the only legitimate object of military tribunals is to aid the Crown to
the United States Army in the Southwest Pacific. The Bolo Area received supplies and maintain the discipline and government of the Army." (Footnote No. 24, p. 49,
funds for the salaries of its officers and men from the Southwest Pacific Command. As Winthrop's Military Law and Precedents, 2d Edition.)
officers in the Bolo Area and the 6th Military District, the petitioners operated under the Our conclusion, therefore, is that the petition has no merit and that it should be
orders of duly established and duly appointed commanders of the United States Army. dismissed with costs. It is so ordered.
The attitude of the enemy toward underground movements did not affect the military
status of guerrillas who had been called into the service of the Philippine Army. If the
invaders refused to look upon guerrillas, without distinctions, as legitimate troops, that
did not stop the guerillas who had been inducted into the service of the Philippine Army
from being component parts thereof, bound to obey military status of guerrillas was to
be judged not by the concept of the army of the country for which they fought.
The constitutionality of the 93d Article of War is assailed. This article ordains "that any
person subject to military law who commits murder in time of was shall suffer death or
imprisonment for life, as the court martial may direct." It is argued that since "no review
is provided by that law to be made by the Supreme Court, irrespective of whether the
punishment is for life imprisonment or death", it violates Article VIII, section 2,
paragraph 4, of the Constitution of the Philippines which provides that "the National
Assembly may not deprive the Supreme Court of its original jurisdiction over all criminal
cases in which the penalty imposed is death or life imprisonment."
We think the petitioners are in error. This error arose from failure to perceive the nature
of courts martial and the sources of the authority for their creation.
Courts martial are agencies of executive character, and one of the authorities "for the
ordering of courts martial has been held to be attached to the constitutional functions
of the President as Commander in Chief, independently of legislation." (Winthrop's
Military Law and Precedents, 2d Edition, p. 49.) Unlike courts of law, they are not a
portion of the judiciary. "The Supreme Court of the United States referring to the
provisions of the Constitution authorizing Congress to provide for the government of
the army, excepting military offenses from the civil jurisdiction, and making the
President Commander in Chief, observes as follows: "These provisions show that
Congress has the power to provide for the trial and punishment of military and naval
offenses in the manner then and now practiced by civilized nations, and that the power
to do so is given without any connection between it and the 3d Article of the United
States; indeed that the two powers are entirely independent of each other."
"Not belonging to the judicial branch of the government, it follows that courts-martial
must pertain to the executive department; and they are in fact simply instrumentalities
123

G.R. No. L-54558 May 22, 1987
EDUARDO B. OLAGUER, OTHONIEL V. JIMENEZ, ESTER MISA-JIMENEZ,
CARLOS LAZARO, REYNALDO MACLANG, MAGDALENA DE LOS SANTOS-
MACLANG, TEODORICO N. DIESMOS, RENE J. MARCIANO, DANILO R. DE
OCAMPO, VICTORIANO C. AMADO and MAC ACERON, petitioners,
vs.
MILITARY COMMISSION NO. 34, THE TRIAL COUNSEL OF MILITARY
COMMISSION NO. 34, and THE MINISTER OF NATIONAL DEFENSE, respondents.
No. L-69882 May 22, 1987
EDUARDO OLAGUER, OTHONIEL JIMENEZ, REYNALDO MACLANG and ESTER
MISA-JIMENEZ, petitioners,
vs.
THE CHIEF OF STAFF, AFP, MILITARY COMMISSION NO. 34, JUDGE ADVOCATE
GENERAL, AFP, MINISTER OF NATIONAL DEFENSE and THE DIRECTOR OF
PRISONS, respondents.
Sabino Padilla, Jr. and Jose B. Puerto for petitioner Othoniel Jimenez.
Fulgencio Factoran for petitioners Maclang and Magdalena de los Santos-Maclang
Rene Saguisag for petitioner Mac Aceron.
Joaquin Misa for petitioner Ester Misa-Jimenez.
Jejomar Binay for petitioners Reynaldo Maclang and Magdalena de los Santos-
Maclang.
Jaime Villanueua for petitioner Danilo R. de Ocampo.
Joker P. Arroyo, Lorenzo M. Tanada and Rene Sarmiento for petitioners Eduardo
Olaguer and Othoniel Jimenez.
Wigberto Tanada for petitioners Olaguer and Maclang
GANCAYCO, J.:
Filed with this Court are two Petitions wherein the fundamental question is whether or
not a military tribunal has the jurisdiction to try civilians while the civil courts are open
and functioning. The two Petitions have been consolidated inasmuch as the issues
raised therein are interrelated.
On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V.
Jimenez, Ester Misa-Jimenez, Carlos Lazaro, Reynaldo Maclang, Magdalena De Los
Santos Maclang, Teodorico N. Diesmos, Rene J. Marciano, Danilo R. De Ocampo and
Victoriano C. Amado were arrested by the military authorities. They were all initially
detained at Camp Crame in Quezon City. They were subsequently transferred to the
detention center at Camp Bagong Diwa in Bicutan except for petitioner Olaguer who
remained in detention at Camp Crame. Petitioner Mac Aceron voluntarily surrendered
to the authorities sometime in June, 1980 and was, thereafter, also incarcerated at
Camp Bagong Diwa. All of the petitioners are civilians.
On May 30, 1980, the petitioners were charged for subversion 1 upon the
recommendation of the respondent Judge Advocate General and the approval of the
respondent Minister of National Defense. 2 The case was designated as Criminal Case
No. MC-34-1.
On June 13. 1980, the respondent Chief of Staff of the Armed Forces of the
Philippines 3 created the respondent Military Commission No 34 to try tile criminal case
filed against the petitioners. 4 On July 30, 1980, an amended charge sheet was filed
for seven (7) offenses, namely: (1) unlawful possession of explosives and incendiary
devices; (2) conspiracy to assassinate President, and Mrs. Marcos; (3) conspiracy to
assassinate cabinet members Juan Ponce Enrile, Francisco Tatad and Vicente
Paterno; (4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roño and Onofre
Corpus; (5) arson of nine buildings; (6) attempted murder of Messrs. Leonardo Perez,
Teodoro Valencia and Generals Romeo Espino and Fabian Ver; and (7) conspiracy
and proposal to commit rebellion, and inciting to rebellion. 5 Sometime thereafter, trial
ensued.
In the course of the proceedings, particularly on August 19, 1980, the petitioners went
to this Court and filed the instant Petition for prohibition and habeas corpus." 6 They
sought to enjoin the respondent Military Commission No. 34 from proceeding with the
trial of their case. They likewise sought their release from detention by way of a writ
of habeas corpus. The thrust of their arguments is that military commissions have no
jurisdiction to try civilians for offenses alleged to have been committed during the period
of martial law. They also maintain that the proceedings before the respondent Military
Commission No. 34 are in gross violation of their constitutional right to due process of
law.
On September 23, 1980, the respondents filed their Answer to the Petition. 7 On
November 20, 1980, the petitioners submmitted their reply to the Answer. 8 In a Motion
filed with this Court on July 25, 1981, petitioner Olaguer requested that the Petition be
considered withdrawn as far as he is concerned. 9 In the Resolution of this Court dated
July 30, 1981, the said prayer was granted." 10 On August 31, 1984, the respondents
filed a Rejoinder to the Reply submitted by the petitioners. 11
On December 4, 1984, pending the resolution of the Petition, the respondent Military
Commission No. 34 passed sentence convicting the petitioners and imposed upon
them the penalty of death by electrocution. Thus, on February 14, 1985, petitioners
Olaguer, Maclang and Othoniel and Ester Jimenez went to this Court and filed the other
124
instant Petition, this time for habeas corpus, certiorari, prohibition and mandamus.
They also sought the issuance of a writ of preliminary injunction. 12 The respondents
named in the Petition are the Chief of Staff of the Armed Forces of the Philippines,
Military Commission No. 34, the Judge Advocate General, the Minister of National
Defense and the Director of the Bureau of Prisons.
In sum, the second Petition seeks to enjoin the said respondents from taking any further
action on the case against the petitioners, and from implementing the judgment of
conviction rendered by the respondent Military Commission No. 34 for the reason that
the same is null and void. The petitioners also seek the return of all property taken from
them by the respondents concerned. Their other arguments in the earlier Petition are
stressed anew.
On August 9, 1985, the respondents filed their Answer to the Petition. 13 On
September 12, 1985, this Court issued a temporary restraining order enjoining the
respondents from executing the Decision of the respondent Military Commission No.
34 14 On February 18, 1986, the petitioners submitted an extensive
Brief. 15 Thereafter, and in due time, the cases were submitted for decision.
In resolving these two Petitions, We have taken into account several supervening
events which have occurred hitherto, to wit —
(1) On January 17, 1981, President Ferdinand E. Marcos issued Proclamation No.
2045 officially lifting martial law in the Philippines. The same Proclamation revoked
General Order No. 8 (creating military tribunals) and directed that "the military tribunals
created pursuant thereto are hereby dissolved upon final determination of case's
pending therein which may not be transferred to the civil courts without irreparable
prejudice to the state in view of the rules on double jeopardy, or other circumstances
which render prosecution of the cases difficult, if not impossible."; and
(2) Petitioner Ester Misa-Jimenez was granted provisional liberty in January, 1981. On
the other hand, petitioners Eduardo Olaguer and Othoniel Jimenez obtained
provisional liberty on January 23, 1986. 16 The rest of the petitioners have been
released sometime before or after President Corazon C. Aquino assumed office in
February, 1986.
The sole issue in habeas corpus proceedings is detention. 17 When the release of the
persons in whose behalf the application for a writ of habeas corpus was filed is
effected, the Petition for the issuance of the writ becomes moot and
academic. 18 Inasmuch as the herein petitioners have been released from their
confinement in military detention centers, the instant Petitions for the issuance of a writ
of habeas corpus should be dismissed for having become moot and academic.
We come now to the other matters raised in the two Petitions. The main issue raised
by the petitioners is whether or not military commissions or tribunals have the
jurisdiction to try civilians for offenses allegedly committed during martial law when civil
courts are open and functioning.
The petitioners maintain that military commissions or tribunals do not have such
jurisdiction and that the proceedings before the respondent Military Commission No.
34 are in gross violation of their constitutional right to due process of law. The
respondents, however, contend otherwise.
The issue on the jurisdiction of military commissions or tribunals to try civilians for
offenses allegedly committed before, and more particularly during a period of martial
law, as well as the other issues raised by the petitioners, have been ruled upon by a
divided Supreme Court in Aquino, Jr. v. Military Commission No. 2. 19 The pertinent
portions of the main opinion of the Court are as follows —
We hold that the respondent Military Commission No. 2 has been lawfully constituted
and validly vested with jurisdiction to hear the cases against civilians, including the
petitioner.
l. The Court has previously declared that the proclamation of Martial Law ... on
September 21, 1972, ... is valid and constitutional and that its continuance is justified
by the danger posed to the public safety. 20
2. To preserve the safety of the nation in times of national peril, the President of the
Philippines necessarily possesses broad authority compatible with the imperative
requirements of the emergency. On the basis of this, he has authorized in General
Order No. 8 . . . the Chief of Staff, Armed Forces of the Philippines, to create military
tribunals to try and decide cases "of military personnel and such other cases as may
be referred to them." In General Order No. 12 ... , the military tribunals were vested
with jurisdiction "exclusive of the civil courts," among others, over crimes against public
order, violations of the Anti-Subversion Act, violations of the laws on firearms, and other
crimes which, in the face of the emergency, are directly related to the quelling of the
rebellion and preservation of the safety and security of the Republic. ... These
measures he had the authority to promulgate, since this Court recognized that the
incumbent President (President Marcos), under paragraphs 1 and 2 of Section 3 of
Article XVII of the new (1973) Constitution, had the authority to "promulgate
proclamations, orders and decrees during the period of martial law essential to the
security and preservation of the Republic, to the defense of the political and social
liberties of the people and to the institution of reforms to prevent the resurgence of the
rebellion or insurrection or secession or the threat thereof ... " 21
3. Petitioner nevertheless insists that he being a civilian, his trial by military commission
deprives him of his right to due process, since in his view the due process guaranteed
by the Constitution to persons accused of "ordinary" crimes means judicial process.
This argument ignores the reality of the rebellion and the existence of martial law. It is,
of course, essential that in a martial law situation, the martial law administrator must
have ample and sufficient means to quell the rebellion and restore civil order. Prompt
and effective trial and punishment of offenders have been considered as necessary in
a state of martial law, as a mere power of detention may be wholly inadequate for the
125
exigency. 22 " ... martial law ... creates an exception to the general rule of exclusive
subjection to the civil jurisdiction, and renders offenses against the law of war, as well
as those of a civil character, triable, ... by military tribunals. 23 "Public danger warrants
the substitution of executive process for judicial process." 24 . ... "The immunity of
civilians from military jurisdiction must, however, give way in areas governed by martial
law. When it is absolutely imperative for public safety, legal processes can be
superseded and military tribunals authorized to exercise the jurisdiction normally
vested in courts. 25 . ..."
xxx xxx xxx
5. ... The guarantee of due process is not a guarantee of any particular form of tribunal
in criminal cases. A military tribunal of competent jurisdiction, accusation in due form,
notice and opportunity to defend and trial before an impartial tribunal, adequately meet
the due process requirement. Due process of law does not necessarily mean a judicial
proceeding in the regular courts. 26 ...
This ruling has been affirmed, although not unanimously, in at least six other cases, to
wit: Gumaua v.Espino, 27Buscayno v. Enrile, 28 Sison v. Enrile, 29 Luneta v. Special
Military Commission No. 1, 30 Ocampo v. Military Commission No. 25, 31 and Buscayno
v. Military Commission Nos. 1, 2, 6 and 25. 32
These rulings notwithstanding, the petitioners anchor their argument on their prayer
that the ruling in Aquino, Jr. be appraised anew and abandoned or modified
accordingly. After a thorough deliberation on the matter, We find cogent basis for re-
examining the same.
Some recent pronouncements of this Court could be considered as attempts to either
abandon or modify the ruling in Aquino, Jr.
In De Guzman v. Hon. Leopando, et al., 33 an officer of the Armed Forces of the
Philippines and several other persons were charged with Serious Illegal Detention
before the Court of First Instance of Maguindanao sometime in October, 1982. The
military officer sought to effect the transfer of the case against him to the General Court
Martial for trial pursuant to the provisions of Presidential Decree No. 1850. The trial
court disallowed such transfer for the reason that the said Decree is unconstitutional
inasmuch as it violates the due process and equal protection clauses of the
Constitution, as well as the constitutional provisions on social justice, the speedy
disposition of cases, the republican form of government, the integrity and
independence of the judiciary, and the supremacy of civilian authority over the military,
When the matter was elevated to this Court by way of a Petition for certiorari, prohibition
and mandamus, the Court decided that a ruling on the constitutional issues raised was
not necessary. With the view that practical and procedural difficulties will result from
the transfer sought, this Court resolved to dismiss the Petition for lack of merit.
In Animas v. The Minister of National Defense, 34 a military officer and several civilians
were charged with murder alleged to have been committed sometime in November,
1971. All of the said accused were recommended for prosecution before a military
tribunal. in the course of the proceedings, the said accused went to this Court on a
Petition for certiorari and challenged the jurisdiction of the military tribunal over their
case. The petitioners contended that General Order No. 59 upon which the jurisdiction
of the military tribunal is anchored refers only to the crime of illegal possession of
firearms and explosives in relation to other crimes committed with a political
complexion. They stressed that the alleged murder was devoid of any political
complexion.
This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the transfer
of the criminal proceedings to the civil courts after noting that with martial law having
been lifted in the country in 1981, all cases pending before the military tribunals should,
as a general rule, be transferred to the civil courts. The Court was also of the view that
the crime alleged to have been committed did not have any political complexion. We
quote the pertinent portions of the Decision of the Court, to wit —
Inspite or because of the ambiguous nature of ... civilian takeover of jurisdiction was
concerned and notwithstanding the shilly-shallying and vacillation characteristic of its
implementation, this Court relied on the enunciated policy of normalization in upholding
the primacy of civil courts. This policy meant that as many cases as possible involving
civilians being tried by military tribunals as could be transferred to civil courts should
be turned over immediately. In case of doubt, the presumption was in favor of civil
courts always trying civilian accused.
xxx xxx xxx
The crime for which the petitioners were charged was committed ... long before the
proclamation of martial law. ... Now that it is already late 1986, and martial law is a
thing of the past, hopefully never more to return, there is no more reason why a murder
committed in 1971 should still be retained, at this time, by a military tribunal.
We agree with the dissenting views of then Justice, now Chief Justice Claudio
Teehankee 35 and Madame Justice Cecilia Munoz Palma 36 in Aquino, Jr. in so far as
they hold that military commissions or tribunals have no jurisdiction to try civilians for
alleged offenses when the civil courts are open and functioning.
Due process of law demands that in all criminal prosecutions (where the accused
stands to lose either his life or his liberty), the accused shall be entitled to, among
others, a trial. 37 The trial contemplated by the due process clause of the Constitution,
in relation to the Charter as a whole, is a trial by judicial process, not by executive or
military process. Military commissions or tribunals, by whatever name they are called,
are not courts within the Philippine judicial system. As explained by Justice Teehankee
in his separate dissenting opinion-
... Civilians like (the) petitioner placed on trial for civil offenses under general law are
entitled to trial by judicial process, not by executive or military process.
126
Judicial power is vested by the Constitution exclusively in the Supreme Court and in
such inferior courts as are duly established by law. Judicial power exists only in the
courts, which have "exclusive power to hear and determine those matters which affect
the life or liberty or property of a citizen. 38
Since we are not enemy-occupied territory nor are we under a military government and
even on the premise that martial law continues in force, the military tribunals cannot try
and exercise jurisdiction over civilians for civil offenses committed by them which are
properly cognizable by the civil courts that have remained open and have been
regularly functioning. 39 ...
And in Toth v. Quarles, 40 the U.S. Supreme Court furtherstressed that the assertion of
military authority over civilians cannot rest on the President's power as Commander-
in-Chief or on any theory of martial law.
xxx xxx xxx
The U.S. Supreme Court aptly pointed out ... , in ruling that discharged army veterans
(estimated to number more than 22.5 million) could not be rendered "helpless before
some latter-day revival of old military charges" and subjected to military trials for
offenses committed while they were in the military service prior to their discharge, that
"the presiding officer at a court martial is not a judge whose objectivity and
independence are protected by tenure and undiminished salary and nurtured by the
judicial tradition, but is a military law officer. Substantially different rules of evidence
and procedure apply in military trials. Apart from these differences, the suggestion of
the possibility of influence on the actions of the court martial by the officer who
convenes it, selects its members and the counsel on both sides, and who usually has
direct command authority over its members is a pervasive one in military law, despite
strenuous efforts to eliminate the danger."
The late Justice Black ... added that (A) Court-Martial is not yet an independent
instrument of justice but remains to a significant degree a specialized part of the over-
all mechanism by which military discipline is preserved," and that ex-servicemen should
be given "the benefits of a civilian court trial when they are actually civilians ... Free
countries of the world have tried to restrict military tribunals to the narrowest jurisdiction
deemed absolutely essential to maintaining discipline among troops in active service.
Moreover, military tribunals pertain to the Executive Department of the Government
and are simply instrumentalities of the executive power, provided by the legislature for
the President as Commander-in-Chief to aid him in properly commanding the army and
navy and enforcing discipline therein, and utilized under his orders or those of his
authorized military representatives. 41 Following the principle of separation of powers
underlying the existing constitutional organization of the Government of the Philippines,
the power and the duty of interpreting the laws as when an individual should be
considered to have violated the law) is primarily a function of the judiciary. 42 It is not,
and it cannot be the function of the Executive Department, through the military
authorities. And as long as the civil courts in the land remain open and are regularly
functioning, as they do so today and as they did during the period of martial law in the
country, military tribunals cannot try and exercise jurisdiction over civilians for offenses
committed by them and which are properly cognizable by the civil courts. 43 To have it
otherwise would be a violation of the constitutional right to due process of the civilian
concerned.
In addition to this pronouncement, We take note of the observation made by the
Solicitor General to the effect that the death penalty imposed upon the petitioners by
the respondent Military Commission No. 34 appears to have been rendered too hastily
to the prejudice to the petitioners, and in complete disregard of their constitutional right
to adduce evidence on their behalf. We quote the pertinent portions of the Manifestation
submitted by the Solicitor General, to wit —
Prior to the session of December 4, 1984, when the respondent Commission rendered
its sentence, petitioners have requested the prosecution to provide them with copies of
the complete record of trial, including the evidences presented against them, but the
prosecution dillydallied and failed to provide them with the document requested.
According to petitioners, they needed the documents to adequately prepare for their
defense.
But a few days before December 4, 1984 the prosecution suddenly furnished them with
certain transcripts of the proceedings which were not complete. Petitioner Othoniel
Jimenez was scheduled to start with the presentation of his evidence on said date and
he requested that his first witness be served with subpoena. The other petitioners, as
agreed upon, were to present their evidence after the first one, Othoniel Jimenez, has
finished presenting his evidence. But on that fateful day, December 4, 1984, the
witness requested to be served with subpoena was not around, because as shown by
the records, he was not even served with the requested subpoena. But in spite of that,
respondent Military Commission proceeded to ask each one of the petitioners if they
are ready to present their evidence.
Despite their explanation that Othoniel Jimenez cannot proceed because the
prosecution, which performs the duties and functions of clerk of court, failed to
subpoena his witness, and that the other petitioners were not ready because it was not
yet their turn to do so, the Commission abruptly decided that petitioners are deemed
to have waived the presentation of evidence in their behalf, and considered the case
submitted for resolution.
After a recess of only twenty-five (25) minutes, the session was resumed and the
Commission rendered its sentence finding petitioners guilty of all the charges against
them and imposing upon them the penalty of death by electrocution. 44
Thus, even assuming arguendo that the respondent Military Commission No. 34 does
have the jurisdiction to try the petitioners, the Commission should be deemed ousted
of its jurisdiction when, as observed by the Solicitor General, the said tribunal acted in
127
disregard of the constitutional rights of the accused. Indeed, it is well-settled that once
a deprivation of a constitutional right is shown to exist, the tribunal that rendered the
judgment in question is deemed ousted of jurisdiction. 45
Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officially lifting
martial law in the Philippines and abolishing all military tribunals created pursuant to
the national emergency effectively divests the respondent Military Commission No. 34
(and all military tribunals for that matter) of its supposed authority to try civilians,
including the herein petitioners.
The main opinion in Aquino, Jr. is premised on the theory that military tribunals have
the jurisdiction to try civilians as long as the period of national emergency (brought
about by public disorder and similar causes) lasts. Undoubtedly, Proclamation No.
2045 is an acknowledgment on the part of the Executive Department of the
Government that the national emergency no longer exists. Thereafter, following the
theory relied upon in the main opinion, all military tribunals should henceforth be
considered functus officio in their relationship with civilians.
By virtue of the proclamation itself, all cases against civilians pending therein should
eventually be transferred to the civil courts for proper disposition. The principle of
double jeopardy would not be an obstacle to such transfer because an indispensable
element of double jeopardy is that the first tribunal which tried the case must be of
competent jurisdiction. 46 As discussed earlier, the military tribunals are devoid of the
required jurisdiction.
We take this opportunity to reiterate that as long as the civil courts in the land are open
and functioning, military tribunals cannot try and exercise jurisdiction over civilians for
offenses committed by them. Whether or not martial law has been proclaimed
throughout the country or over a part thereof is of no moment. The imprimatur for this
observation is found in Section 18, Article VII of the 1987 Constitution, to wit —
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. (Emphasis supplied.)
This provision in the fundamental law is just one of the many steps taken by the Filipino
people towards the restoration of the vital role of the judiciary in a free country-that of
the guardian of the Constitution and the dispenser of justice without fear or favor.
No longer should military tribunals or commissions exercise jurisdiction over civilians
for offenses allegedly committed by them when the civil courts are open and
functioning. No longer may the exclusive judicial power of the civil courts, beginning
with the Supreme Court down to the lower courts 47 be appropriate by any military body
or tribunal, or even diluted under the guise of a state of martial law, national security
and other similar labels.
At this juncture, We find it appropriate to quote a few paragraphs from the ponencia of
Mr. Justice Gutierrez inAnimas v. The Minister of National Defense , 48 viz —
The jurisdiction given to military tribunals over common crimes and civilian(s) accused
at a time when all civil courts were fully operational and freely functioning constitutes
one of the saddest chapters in the history of the Philippine judiciary.
The downgrading of judicial prestige caused by the glorification of military tribunals, the
instability and insecurity felt by many members of the judiciary due to various causes
both real and imagined, and the many judicial problems spawned by extended
authoritarian rule which effectively eroded judicial independence and self-respect will
require plenty of time and determined efforts to cure.
The immediate return to civil courts of all cases which properly belong to them is only
a beginning.
And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankee had
this to say —
I only wish to add that the great significance of our judgment in this case is that we
reestablish and reinstate the fundamental principle based on civilian supremacy over
the military as urged in vain in my dissent in the case of Benigno S. Aquino, Jr. vs.
Military Commission No. 2, et al. that "Civilians placed on trial for offenses under
general law are entitled to trial by judicial process, not by executive or military process.
Judicial power is vested by the Constitution exclusively in the Supreme Court and in
such inferior courts as are duly established by law. Military commissions, or tribunals,
are not courts and do not form part of the judicial system. Since we are not enemy-
occupied territory nor are we under a military government and even on the premise that
martial law continues in force, the military tribunals cannot try and exercise jurisdiction
over civilians for civil offenses committed by them which are properly cognizable by the
civil courts that have remained open and have been regularly functioning.
xxx xxx xxx
The terrible consequences of subjecting civilians to trial by military process is best
exemplified in the sham military trial of the martyred former Senator Benigno S. Aquino,
Jr., whereby he was deprived (1) by the summary ex parte investigation by the Chief
prosecution staff of the JAGO of his right to be informed of the charges against him
and of his right to counsel as expressly recognized by Section 20 of the Bill of Rights
of the 1973 Constitution; (2) of his vested statutory right to a preliminary investigation
of the subversion charges against him before the proper court of first instance as
required under Section 5 of the Anti-Subversion Act, R.A. 1700 and of the other
charges against him before the proper civilian officials and to confront and cross-
examine the witnesses against him under R.A. 5180; (3) of the right to be tried by
judicial process, by the regular independent courts of justice, with all the specific
constitutional, statutory and procedural safeguards embodied in the judicial process
and presided over not by military officers; and (4) of the right to appeal to the regular
128
appellate courts and to judicial review by this Court in the event of conviction and permanently prohibited from further pursuing Criminal Case No. MC-34-1 against the
imposition of a sentence of death or life imprisonment which the charges carry and petitioners. The sentence rendered by the respondent Military Commission No. 34
wherein a qualified majority of ten (10) votes for affirmance of the death penalty is imposing the death penalty on the petitioners is hereby vacated for being null and void,
required. In fine, he was denied due process of law as guaranteed under the Bill of and all the items or properties taken from the petitioners in relation to the said criminal
Rights which further ordains that "No person shall be held to answer for a criminal case should be returned to them immediately. No pronouncement as to costs.
offense without due process of law."Worse, his trial by a military tribunal created by the SO ORDERED.
then President and composed of the said President's own military subordinates without
tenure and of non-lawyers (except the law member) and of whose decision the
President is the final reviewing authority as Commander-in-Chief of the Armed Forces
deprived him of a basic constitutional right to be heard by a fair and impartial tribunal,
considering that the said President had publicly declared the evidence against
petitioner "not only strong (but) overwhelming" and thereby prejudged and
predetermined his guilt, and none of his military subordinates could be expected to go
against their Commander-in-Chief's declaration.
Hopefully, an these aberrations now belong to the dead and nightmarish past, when
time-tested doctrines, to borrow a phrase from the then Chief Justice, "shrivelled in the
effulgence of the overpowering rays of martial rule. 49
As stated earlier, We have been asked to re-examine a previous ruling of the Court
with a view towards abandoning or modifying the same. We do so now but not without
careful reflection and deliberation on Our part. Certainly, the rule of stare decisis is
entitled to respect because stability in jurisprudence is desirable. Nonetheless,
reverence for precedent, simply as precedent, cannot prevail when constitutionalism
and the public interest demand otherwise. Thus, a doctrine which should be abandoned
or modified should be abandoned or modified accordingly. After all, more important
than anything else is that this Court should be right. 50
Accordingly, it is Our considered opinion, and We so hold, that a military commission
or tribunal cannot try and exercise jurisdiction, even during the period of martial law,
over civilians for offenses allegedly committed by them as long as the civil courts are
open and functioning, and that any judgment rendered by such body relating to a
civilian is null and void for lack of jurisdiction on the part of the military tribunal
concerned. 51 For the same reasons, Our pronouncement in Aquino, Jr. v. Military
Commission No. 2 52 and all decided cases affirming the same, in so far as they are
inconsistent with this pronouncement, should be deemed abandoned.
WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are
DISMISSED for having become moot and academic. The Petitions for certiorari and
prohibition are hereby GRANTED. The creation of the respondent Military Commission
No. 34 to try civilians like the petitioners is hereby declared unconstitutional and all its
proceedings are deemed null and void. The temporary restraining order issued against
the respondents enjoining them from executing the Decision of the respondent Military
Commission No. 34 is hereby made permanent and the said respondents are
129

[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]
130
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 violation of the civilian supremacy clause of the Constitution.
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
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
131
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]
132
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
133
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 ofhabeas 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.
134
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
135
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.
136

G.R. No. 78239 February 9, 1989
SALVACION A. MONSANTO, petitioner,
vs.
FULGENCIO S. FACTORAN, JR., respondent.
FERNAN, C.J.:
The principal question raised in this petition for review is whether or not a public officer, who
has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her
former position without need of a new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion
A. Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the
complex crime of estafa thru falsification of public documents and sentenced them to
imprisonment of four (4) years, two (2) months and one (1) day ofprision correccional as
minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of
P3,500. They were further ordered to jointly and severally indemnify the government in the sum
of P4,892.50 representing the balance of the amount defrauded and to pay the costs
proportionately.
Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the
same. She then filed a motion for reconsideration but while said motion was pending, she was
extended on December 17, 1984 by then President Marcos absolute pardon which she
accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be
restored to her former post as assistant city treasurer since the same was still vacant.
Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the
provision of the Local Government Code transferring the power of appointment of treasurers
from the city governments to the said Ministry. In its 4th Indorsement dated March 1, 1985, the
Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of
a new appointment not earlier than the date she was extended the absolute pardon. It also
directed the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan
had required to be indemnified in favor of the government as well as the costs of the litigation,
be satisfied. 1
Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985
stressing that the full pardon bestowed on her has wiped out the crime which implies that her
service in the government has never been interrupted and therefore the date of her
reinstatement should correspond to the date of her preventive suspension which is August 1,
1982; that she is entitled to backpay for the entire period of her suspension; and that she should
not be required to pay the proportionate share of the amount of P4,892.50. 2
The Ministry of Finance, however, referred petitioner's letter to the Office of the President for
further review and action. On April 15, 1986, said Office, through Deputy Executive Secretary
Fulgenio S. Factoran, Jr. held:
We disagree with both the Ministry of Finance and the petitioner because, as borne out by the
records, petitioner was convicted of the crime for which she was accused. In line with the
government's crusade to restore absolute honesty in public service, this Office adopts, as
a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd
Division, inPeople v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute
pardon, of a former public officer is the only ground for reinstatement to his former position and
entitlement to payment of his salaries, benefits and emoluments due to him during the period of
his suspensionpendente lite.
In fact, in such a situation, the former public official must secure a reappointment before he can
reassume his former position. ...
Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon
shall in no case exempt the culprit from payment of the civil indemnity imposed upon him by the
sentence." (Sec. 36, par. 2).
IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to
an automatic reinstatement on the basis of the absolute pardon granted her but must secure an
appointment to her former position and that, notwithstanding said absolute pardon, she is liable
for the civil liability concomitant to her previous conviction. 3
Her subsequent motion for reconsideration having been denied, petitioner filed the present
petition in her behalf We gave due course on October 13, 1987.
Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason
of the fact that she was extended executive clemency while her conviction was still pending
appeal in this Court. There having been no final judgment of conviction, her employment
therefore as assistant city treasurer could not be said to have been terminated or forfeited. In
other words, without that final judgment of conviction, the accessory penalty of forfeiture of office
did not attach and the status of her employment remained "suspended." More importantly, when
pardon was issued before the final verdict of guilt, it was an acquittal because there was no
offense to speak of. In effect, the President has declared her not guilty of the crime charged and
has accordingly dismissed the same. 4
It is well to remember that petitioner had been convicted of the complex crime of estafa thru
falsification of public documents and sentenced to imprisonment of four years, two months and
one day of prision correccional as minimum, to ten years and one day of prision mayor as
maximum. The penalty of prision mayor carries the accessory penalties of temporary absolute
disqualification and perpetual special disqualification from the right of suffrage, enforceable
during the term of the principal penalty. 5 Temporary absolute disqualification bars the convict
from public office or employment, such disqualification to last during the term of the
sentence. 6 Even if the offender be pardoned, as to the principal penalty, the accessory
penalties remain unless the same have been expressly remitted by the pardon. 7 The penalty
of prision correccional carries, as one of its accessory penalties, suspension from public office. 8
The propositions earlier advanced by petitioner reveal her inadequate understanding of the
nature of pardon and its legal consequences. This is not totally unexpected considering that the
authorities on the subject have not been wholly consistent particularly in describing the effects
of pardon.
137
The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's
wrath. But Philippine jurisprudence on the subject has been largely influenced by American
case law.
Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution
of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law
inflicts for a crime he has committed. It is the private, though official act of the executive
magistrate, delivered to the individual for whose benefit it is intended, and not communicated
officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and
delivery is not complete without acceptance." 8-a
At the time the antecedents of the present case took place, the pardoning power was governed
by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision
reads:
The President may, except in cases of impeachment, grant reprieves, commutations and
pardons, remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant
amnesty. 9
The 1981 amendments had deleted the earlier rule that clemency could be extended only upon
final conviction, implying that clemency could be given even before conviction. Thus, petitioner's
unconditional pardon was granted even as her appeal was pending in the High Court. It is worth
mentioning that under the 1987 Constitution, the former limitation of final conviction was
restored. But be that as it may, it is our view that in the present case, it is not material when the
pardon was bestowed, whether before or after conviction, for the result would still be the same.
Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her
unreversed conviction by the Sandiganbayan assumed the character of finality.
Having disposed of that preliminary point, we proceed to discuss the effects of a full and
absolute pardon in relation to the decisive question of whether or not the plenary pardon had
the effect of removing the disqualifications prescribed by the Revised Penal Code.
In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts
on the various consequences of pardon: "... we adopt the broad view expressed in Cristobal v.
Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the
Constitution, the pardoning power cannot be restricted or controlled by legislative action; that
an absolute pardon not only blots out the crime committed but removes all disabilities resulting
from the conviction. ... (W)e are of the opinion that the better view in the light of the constitutional
grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive
who, after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the
law to the extent of relieving completely the party ... concerned from the accessory and resultant
disabilities of criminal conviction.
The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the
unmistakable application of the doctrinal case of Ex Parte Garland, 13 whose sweeping
generalizations to this day continue to hold sway in our jurisprudence despite the fact that much
of its relevance has been downplayed by later American decisions.
Consider the following broad statements:
A pardon reaches both the punishment prescribed for the offense and the guilt of the offender;
and when the pardon is full, it releases the punishment and blots out of existence the guilt, so
that in the eye of the law the offender is as innocent as if he had never committed the offense.
If granted before conviction, it prevents any of the penalties and disabilities, consequent upon
conviction, from attaching; if granted after conviction, it removes the penalties and disabilities
and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new
credit and capacity. 14
Such generalities have not been universally accepted, recognized or approved. 15 The modern
trend of authorities now rejects the unduly broad language of the Garland case (reputed to be
perhaps the most extreme statement which has been made on the effects of a pardon). To our
mind, this is the more realistic approach. While a pardon has generally been regarded as
blotting out the existence of guilt so that in the eye of the law the offender is as innocent as
though he never committed the offense, it does not operate for all purposes. The very essence
of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact
of the commission of the crime and the conviction thereof. It does not wash out the moral stain.
It involves forgiveness and not forgetfulness. 16
The better considered cases regard full pardon (at least one not based on the offender's
innocence) as relieving the party from all the punitive consequences of his criminal act, including
the disqualifications or disabilities based on the finding of guilt. 17 But it relieves him from nothing
more. "To say, however, that the offender is a "new man", and "as innocent as if he had never
committed the offense;" is to ignore the difference between the crime and the criminal. A person
adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of
punishment, though left unpunished; and the law may regard him as more dangerous to society
than one never found guilty of crime, though it places no restraints upon him following his
conviction." 18
A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords
no relief for what has been suffered by the offender. It does not impose upon the government
any obligation to make reparation for what has been suffered. "Since the offense has been
established by judicial proceedings, that which has been done or suffered while they were in
force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can
be required." 20This would explain why petitioner, though pardoned, cannot be entitled to
receive backpay for lost earnings and benefits.
Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared
her not guilty of the crime for which she was convicted. In the case of State v. Hazzard, 21 we
find this strong observation: "To assume that all or even a major number of pardons are issued
because of innocence of the recipients is not only to indict our judicial system, but requires us
to assume that which we all know to be untrue. The very act of forgiveness implies the
commission of wrong, and that wrong has been established by the most complete method
known to modern civilization. Pardons may relieve from the disability of fines and forfeitures
attendant upon a conviction, but they cannot erase the stain of bad character, which has been
definitely fixed. 22
In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede
that pardon may remit all the penal consequences of a criminal indictment if only to give
meaning to the fiat that a pardon, being a presidential prerogative, should not be circumscribed
by legislative action, we do not subscribe to the fictitious belief that pardon blots out the guilt of
an individual and that once he is absolved, he should be treated as if he were innocent. For
whatever may have been the judicial dicta in the past, we cannot perceive how pardon can
138
produce such "moral changes" as to equate a pardoned convict in character and conduct with Melencio-Herrera, J., concurs in the result.
one who has constantly maintained the mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite
the public manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will
take into account in their subsequent dealings with the actor." 23
Pardon granted after conviction frees the individual from all the penalties and legal disabilities
and restores him to all his civil rights. But unless expressly grounded on the person's innocence
(which is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. 24 This
must be constantly kept in mind lest we lose track of the true character and purpose of the
privilege.
Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full
agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted
felon to public office necessarily relinquished or forfeited by reason of the conviction 25 although
such pardon undoubtedly restores his eligibility for appointment to that office. 26
The rationale is plainly evident Public offices are intended primarily for the collective protection,
safety and benefit of the common good. They cannot be compromised to favor private interests.
To insist on automatic reinstatement because of a mistaken notion that the pardon virtually
acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and
plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to
be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned
conviction.
For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from
public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru
falsification of public documents. It is clear from the authorities referred to that when her guilt
and punishment were expunged by her pardon, this particular disability was likewise removed.
Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason
of her conviction. And in considering her qualifications and suitability for the public post, the
facts constituting her offense must be and should be evaluated and taken into account to
determine ultimately whether she can once again be entrusted with public funds. Stated
differently, the pardon granted to petitioner has resulted in removing her disqualification from
holding public employment but it cannot go beyond that. To regain her former post as assistant
city treasurer, she must re-apply and undergo the usual procedure required for a new
appointment.
Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon
her by the sentence. The Court cannot oblige her. Civil liability arising from crime is governed
by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason
the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil
liability may only be extinguished by the same causes recognized in the Civil Code, namely:
payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor,
compensation and novation. 27
WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S.
Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs.
SO ORDERED.
Narvasa, Paras, Gancayco, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

139

G.R. No. 103567 December 4, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO SALLE, JR. Y GERCILLA @ "KA NONOY," RICKY MENGOTE Y CUNTADO
@ "KA RICKY/KA LIZA/KA JUN," and TEN JOHN DOES, accused.
FRANCISCO SALLE, JR., Y GERCILLA and RICKY MENGOTE Y CUNTADO, accused-
appellants.
RESOLUTION
DAVIDE, JR., J.:
For resolution is the enforceability of the conditional pardon granted to accused-appellant Ricky
Mengote during the pendency in this Court of his appeal from his conviction by the trial court.
In the decision 1 dated 18 November 1991 of Branch 88 of the Regional Trial Court (RTC) of
Quezon City in Criminal Case No. Q-90-11835, the accused-appellants were found guilty
beyond reasonable doubt as co-principals of the compound crime of murder and destructive
arson and were each sentenced to suffer the penalty of reclusion perpetua and to pay, jointly
and severally, an indemnity in the sum of P50,000.00 to the heirs of the victim. 2
The appellants seasonably filed their Notice of Appeal. On 24 March 1993, this Court accepted
the appeal. On 6 January 1994, however, appellant Francisco Salle, Jr. filed an Urgent Motion
to Withdraw Appeal. The Court then required his counsel, Atty. Ida May La'o of the Free Legal
Assistance Group (FLAG) to verify the voluntariness of the aforesaid motion.
In her Manifestation with Motion to Withdraw Appeal, Atty. La'o informed this Court that her
verification disclosed that Salle signed the motion without the assistance of counsel on his
misimpression that the motion was merely a bureaucratic requirement necessary for his early
release from the New Bilibid Prison (NBP) following the grant of a conditional pardon by the
President on 9 December 1993. He was discharged from the NBP on 28 December 1993. She
further informed the Court that appellant Ricky Mengote was, on the same dates, granted a
conditional pardon and released from confinement, and that he immediately left for his province
without consulting her. She then prays that this Court grant Salle's motion to withdraw his appeal
and consider it withdrawn upon his acceptance of the conditional pardon.
Until now, Mengote has not filed a motion to withdraw his appeal.
In the resolution of 23 March 1994, this Court granted Salle's motion to withdraw his appeal and
considered this case closed and terminated insofar as he is concerned.
On 3 June 1993, Assistant Director Jesus P. Villanueva of the Bureau of Corrections submitted
certified photocopies of the conditional pardon granted separately to Salle 3 and Mengote 4 and
of their certificates of release.5 The said copies of the conditional pardon state, among other
things, that it is upon acceptance of the pardon that the appellants will be released from
confinement. But there is nothing to show when the appellants accepted the pardon.
In its Comment of 17 August 1994, the Office of the Solicitor General asserted that with their
acceptance of the conditional pardon, the appellants impliedly admitted their guilt and accepted
their sentence, and hence, the appeal should be dismissed. 6
After taking into consideration Section 19, Article VII of the Constitution which provides that the
President may, except in cases of impeachment or as otherwise provided in the Constitution,
grant pardon after conviction by final judgment, this Court resolved to require.
1. The Office of the Solicitor General and the counsel for the accused-appellants to submit,
within thirty (30) days from notice hereof, their respective memoranda on the issue of the
enforceability of the conditional pardon; and
2. The Presidential Committee for the Grant of Bail, Release or Pardon to inform the Court,
within ten (10) days from notice hereof, why it recommended to the President the grant of the
conditional pardon despite the pendency of the appeal. 7
In a Comment submitted on behalf of the Presidential Committee for the Grant of Bail, Release,
or Pardon, Assistant Chief State Prosecutor Nilo C. Mariano avers that the Secretariat assisting
the Committee has a standing agreement with the FLAG and other human rights organizations
that it will recommend to the Presidential Committee for conditional pardon by the President of
convicted persons who may have been convicted of crimes against national security and public
order or of common crimes which appear to have been committed in pursuit of their political
objectives; and that where the said convicted persons have pending appeals before the
appellate court, the lawyers of the said organizations, particularly the FLAG, will take care of
filing the appropriate motions for the withdrawal of their appeal considering that presidential
pardon may be extended only to those serving sentence after final conviction. Notwithstanding
that agreement, before it recommends to the Committee the grant of conditional pardon, the
Secretariat also checks with the Bureau of Corrections the carpetaor records of recommendees
whether they have pending appeals so that those concerned may be properly advised to
withdraw the same. Mariano further contends that per information given to the Secretariat by
Assistant Director Villanueva, Mengote's carpeta or prison record does not show that he has a
pending appeal with the Court of Appeals or the Supreme Court. For that reason, the Secretariat
was not able to advise those concerned to take appropriate steps for the withdrawal of the
appeal before it recommended to the Committee the grant of conditional pardon in favor of
Mengote. Mariano then assures the Court that there was no intention on the part of the
Secretariat and the Committee to violate Section 19, Article VII of the Constitution, and that
what happened was a clear misappreciation of facts due to the incomplete records of Mengote.
In its Memorandum filed for the Appellee on 15 December 1994, the Office of the Solicitor
General maintains that the conditional pardon granted to appellant Mengote is unenforceable
because the judgment of conviction is not yet final in view of the pendency in this Court of his
appeal.
On the other hand, the FLAG, through Atty. La'o, submits that the conditional pardon extended
to Mengote is valid and enforceable. Citing Monsanto vs. Factoran, Jr., 8 it argues that although
Mengote did not file a motion to withdraw the appeal, he was deemed to have abandoned the
appeal by his acceptance of the conditional pardon which resulted in the finality of his conviction.
The pivotal issue thus raised is the enforceability of a pardon granted to an accused during the
pendency of his appeal from a judgment of conviction by the trial court.
140
This calls for a review of the Philippine laws on presidential pardons. We shall start with the
Jones Law. 9 Section 21 thereof provided in part as follows:
Sec. 21. That the supreme executive power shall be vested in an executive officer, whose
official title shall be "The Governor-General of the Philippine Islands.". . . He is hereby vested
with the exclusive power to grant pardons and reprieves and remit fines and forfeitures. . . .
Then came the 1935 Constitution. Paragraph 6, Section 10, Article VII thereof provided as
follows:
(6) The President shall have the power to grant reprieves, commutations, and pardons, and
remit fines and forfeitures, after conviction, for all offenses, except in cases of impeachment,
upon such conditions and with such restrictions and limitations as he may deem proper to
impose. He shall have the power to grant amnesty with the concurrence of the Congress.
This provision differed from that of the Jones Law in some respects. Thus, in People
vs. Vera, 10 this Court held:
Under the Jones Law, as at common law, pardon could be granted any time after the
commission of the offense, either before or after conviction (Vide Constitution of the United
States, Art. II, sec. 2; In re Lontok [1922], 43 Phil. 293). The Governor-General of the Philippines
was thus empowered, like the President of the United States, to pardon a person before the
facts of the case were fully brought to light. The framers of our Constitution thought this
undesirable and, following most of the state constitutions, provided that the pardoning power
can only be exercised "after conviction".
The requirement of after conviction operated as one of the limitations on the pardoning power
of the President. Thus:
It should be observed that there are two limitations upon the exercise of this constitutional
prerogative by the Chief Executive, namely: (a) that the power be exercised after conviction;
and (b) that such power does not extend to cases of impeachment. 11
The 1973 Constitution went further by providing that pardon could be granted only after final
conviction. Section 14 of Article IX thereof reads as follows:
The Prime Minister may, except in cases of impeachment, grant reprieves, commutations, and
pardons, remit fines and forfeitures, after final conviction, and, with the concurrence of the
National Assembly, grant amnesty. (emphasis supplied)
The 1981 amendments to the 1973 Constitution, however, removed the limitation of final
conviction, thereby bringing us back to the aforementioned provision of the Jones Law. Section
11, Article VII of the 1973 Constitution, as thus amended, reads:
The President may, except in cases of impeachment, grant reprieves, commutations and
pardons, remit fines and forfeitures and, with the concurrence of the Batasang Pambansa, grant
amnesty.
But the said limitation was restored by the present Constitution. Section 19, Article VII thereof
reads as follows:
Except in cases of impeachment, or as otherwise provided in this Constitution, the President
may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress. (emphasis supplied)
Where the pardoning power is subject to the limitation of conviction, it may be exercised at any
time after conviction even if the judgment is on appeal. It is, of course, entirely different where
the requirement is " final conviction, " as was mandated in the original provision of Section 14,
Article IX of the 1973 Constitution, or "conviction by final judgment," as presently prescribed in
Section 19, Article VII of the 1987 Constitution. In such a case, no pardon may be extended
before a judgment of conviction becomes final.
A judgment of conviction becomes final (a) when no appeal is seasonably perfected, (b) when
the accused commences to serve the sentence, (c) when the right to appeal is expressly waived
in writing, except where the death penalty was imposed by the trial court, and (d) when the
accused applies for probation, thereby waiving his right to appeal. 12 Where the judgment of
conviction is still pending appeal and has not yet therefore attained finality, as in the instant
case, executive clemency may not yet be granted to the appellant.
We are not, however, unmindful of the ruling of this Court in People vs. Crisola 13 that the grant
of executive clemency during the pendency of the appeal serves to put an end to the appeal.
Thus:
The commutation of the penalty is impressed with legal significance. That is an exercise of
executive clemency embraced in the pardoning power. According to the Constitution: "The
President may, except in cases of impeachment, grant reprieves, commutations and pardons,
remit fines and forfeitures and, with the concurrence of the Batasang Pambansa, grant
amnesty." Once granted, it is binding and effective. It serves to put an end to this appeal.
It must, nevertheless, be noted that the constitutional provision quoted is that of the 1973
Constitution, as amended, which authorized the exercise of the pardoning power at anytime,
either before or after conviction. Also, in Monsanto vs. Factoran, 14 this Court stated that the
acceptance of a pardon amounts to an abandonment of an appeal, rendering the conviction
final; thus:
The 1981 amendments had deleted the earlier rule that clemency could be extended only upon
final conviction, implying that clemency could be given even before conviction. Thus, petitioner's
unconditional pardon was granted even as her appeal was pending in the High Court. It is worth
mentioning that under the 1987 Constitution, the former limitation of final conviction was
restored. But be that as it may, it is our view that in the present case, it is not material when the
pardon was bestowed, whether before or after conviction, for the result would still be the same.
Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her
unreversed conviction by the Sandiganbayan assumed the character of finality.
This statement should not be taken as a guiding rule for it is nothing but an orbiter dictum.
Moreover, the pardon involved therein was extended on 17 December 1984 or under the regime
of Section 11, Article VII of the 1973 Constitution, as amended, which allowed the grant of
pardon either before or after conviction.
The reason the Constitutional Commission adopted the "conviction by final judgment"
requirement, reviving in effect the original provision of the 1973 Constitution on the pardoning
power, was, as expounded by Commissioner Napoleon Rama, to prevent the President from
exercising executive power in derogation of the judicial power. 15
Indeed, an appeal brings the entire case within the exclusive jurisdiction of the appellate court.
A becoming regard for the doctrine of separation of powers demands that such exclusive
authority of the appellate court be fully respected and kept unimpaired. For truly, had not the
141
present Constitution adopted the "conviction by final judgment" limitation, the President could,
at any time, and even without the knowledge of the court, extend executive clemency to any
one whom he, in good faith or otherwise, believes to merit presidential mercy. It cannot be
denied that under the Jones Law and the 1981 amendments to the 1973 Constitution on the
pardoning power which did not require conviction, the President had unimpeded power to grant
pardon even before the criminal case could be heard. And under the 1935 Constitution which
required "conviction" only, the power could be exercised at any time after conviction and
regardless of the pendency of the appeal. In either case, there could be the risk not only of a
failure of justice but also of a frustration of the system of administration of justice in view of the
derogation of the jurisdiction of the trial or appellate court. Where the President is not so
prevented by the Constitution, not even Congress can impose any restriction to prevent a
presidential folly. 16 Hence, nothing but a change in the constitutional provision consisting in the
imposition of "conviction by final judgment" requirement can change the rule. The new
Constitution did it.
Hence, before an appellant may be validly granted pardon, he must first ask for the withdrawal
of his appeal, i.e., the appealed conviction must first be brought to finality.
Accordingly, while this Court, in its resolution of 21 March 1991 in People vs. Pedro
Sepada, 17 dismissed the appeal for having become moot and academic in view of the parole
granted to the appellant, it explicitly declared the necessity of a final judgment before parole or
pardon could be extended. Thus:
CONSIDERING THE FOREGOING, the COURT RESOLVED to DISMISS the appeal for having
become moot and academic. To avoid any possible conflict with the judicial determination of
pending appeals, the Court further DIRECTED the Board of Pardons and Parole to adopt a
system which enables it to ascertain whether a sentence has become final and executory and
has, in fact, been executed before acting on any application for parole or pardon. The Court
Administrator shall coordinate with the Department of Justice on how this may be best achieved.
(Emphasis supplied).
Recently, in its resolution of 31 January 1995 in People vs. Hinlo, 18 this Court categorically
declared to be "in clear violation of the law" the "practice of processing applications for pardon
or parole despite pending appeals." This Court resolved therein as follows:
IN VIEW OF THE FOREGOING, in order to put a stop to the practice of processing applications
for pardon and parole despite pending appeals which is in clear violation of the law, the Court
Resolved to:
(1) REQUIRE Atty. Conrado H. Edig, counsel de parte of accused Bernardo Hinlo, Catalino
Capin, Martin Hinlo and Cecerio Ongco, who were given pardon, to secure and file the
withdrawal of the appeals of said accused within ten days from receipt of this Resolution;
(2) CALL the attention of the Presidential Committee to observe the proper procedure as
required by law before granting bail, pardon or parole in cases before it; and
(3) REMIND the Board of Pardons and Parole about the Court's directive in the People
v. Sepada case. (Emphasis supplied).
The above pronouncements of this Court in Sepada and in Hinlo may still be unheeded, either
through deliberate disregard thereof or by reason of an erroneous application of the obiter
dictum in Monsanto or of the ruling in Crisola. Hence, the need for decisive action on the matter.
We now declare that the "conviction by final judgment" limitation under Section 19, Article VII of
the present Constitution prohibits the grant of pardon, whether full or conditional, to an accused
during the pendency of his appeal from his conviction by the trial court. Any application therefor,
if one is made, should not be acted upon or the process toward its grant should not be begun
unless the appeal is withdrawn. Accordingly, the agencies or instrumentalities of the
Government concerned must require proof from the accused that he has not appealed from his
conviction or that he has withdrawn his appeal. Such proof may be in the form of a certification
issued by the trial court or the appellate court, as the case may be. The acceptance of the
pardon shall not operate as an abandonment or waiver of the appeal, and the release of an
accused by virtue of a pardon, commutation of sentence, or parole before the withdrawal of an
appeal shall render those responsible therefor administratively liable. Accordingly, those in
custody of the accused must not solely rely on the pardon as a basis for the release of the
accused from confinement.
And now on the instant case. Considering that appellant Ricky Mengote has not filed a motion
to withdraw his appeal up to this date the conditional pardon extended to him should not have
been enforced. Nonetheless, since he stands on the same footing as the accused-appellants in
the Hinlo case, he may be freed from the full force, impact, and effect of the rule herein
pronounced subject to the condition set forth below. This rule shall fully bind pardons extended
after 31 January 1995 during the pendency of the grantee's appeal.
WHEREFORE, counsel for accused-appellant Ricky Mengote y Cuntado is hereby given thirty
(30) days from notice hereof within which to secure from the latter the withdrawal of his appeal
and to submit it to this Court. The conditional pardon granted the said appellant shall be deemed
to take effect only upon the grant of such withdrawal. In case of non-compliance with this
Resolution, the Director of the Bureau of Corrections must exert every possible effort to take
back into his custody the said appellant, for which purpose he may seek the assistance of the
Philippine National Police or the National Bureau of Investigation.
Let copies of this Resolution be furnished the Office of the President, the Department of Justice,
the Board of Pardons and Parole, and the Presidential Committee for the Grant of Bail, Release,
or Pardon.
SO ORDERED.
142

G.R. No. 75025 September 14, 1993
VICENTE GARCIA, petitioner,
vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE MINISTER,
LAND TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL DIRECTOR,
TELECOM REGIONAL OFFICE NO. IV, respondents.
Eulogio B. Alzaga for petitioner.
The Solicitor General for respondents.
BELLOSILLO, J.:
Petitioner comes to us on a petition for review on certiorari of the decision of 23 July 1985 of
respondent Commission on Audit (COA) denying his claim for payment of back wages, after he
was reinstated to the service pursuant to an executive clemency. He prays for the extraordinary
remedy of mandamus against public respondents to enforce his claim.
Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of
Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily dismissed from
the service on the ground of dishonesty in accordance with the decision of the then Ministry of
Public Works, Transportation and Communications in Adm. Case No. 975 for the loss of several
telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc,
Quezon, telecom lines. Petitioner did not appeal from the decision.
Based on the same facts obtaining in the administrative action, a criminal case for qualified theft
was filed against petitioner with the then Court of First Instance (now Regional Trial Court) of
Quezon. On 23 January 1980, the trial court rendered its decision acquitting petitioner of the
offense charged.
Consequently, petitioner sought reinstatement to his former position
in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, petitioner's
request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner
pleaded to the President of the Philippines for executive clemency.
On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation
and Communications and the Civil Service Commission, Deputy Presidential Executive
Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800,
granted executive clemency to petitioner.
Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1
April 1975, the date of his dismissal from the service. This was denied by the COA in its 5th
Indorsement dated 12 October 1982 on the ground that the executive clemency granted to him
did not provide for the payment of back salaries and that he has not been reinstated in the
service.
It appears that petitioner was recalled to the service on 12 March 1984 but the records do not
show whether petitioner's reinstatement was to the same position of Supervising Lineman. 1
Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the
date of his dismissal, to 12 March 1984, when he was reinstated. In Decision No. 362 embodied
in its 3rd Indorsement dated 23 July 1985, respondent COA denied the claim stating that the
executive clemency was silent on the payment of back wages and that he had not rendered
service during the period of his claim.
Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President.
On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the
President, denied the appeal "due to legal and constitutional constraint," 2 holding that this Court
is the proper forum to take cognizance of the appeal oncertiorari from the decision of the COA,
citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987
Constitution).
Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment
of back wages after having been reinstated pursuant to the grant of executive clemency.
In his comment to the petition, the Solicitor General recommends that the petition be given due
course and the petitioner be awarded back wages to be determined in the light of existing laws
and jurisprudence. The Solicitor General submits that the award is implicit in the grant of
executive clemency, the ultimate objective of which is to accord full justice to petitioner.
On the other hand, the COA asks this Court to deny the petition for the following reasons: (a)
petitioner's acquittal in the criminal case did not necessarily free him from administrative liability;
(b) petitioners unexplained failure to appeal the decision in the administrative case was
tantamount to a waiver or renunciation of his right to back wages; (c) the executive clemency
was granted to petitioner for the purpose of reinstatement only since it was silent on the matter
of back wages; (d) the award of back wages is allowed only if the respondent is exonerated
from the administrative charge that his suspension or dismissal is declared illegal or unjustified
by the court; and, (e) petitioner did not render any service during the period before his
reinstatement, hence, he is not entitled to back wages based on the "no service, no pay" rule.
The petition is meritorious.
Every civilized country recognizes, and has therefore provided for, the pardoning power to be
exercised as an act of grace and humanity, in proper cases. Without such a power of clemency,
to be exercised by some department or functionary of a government, a country would be most
imperfect and deficient in its political morality and in that attribute of Deity whose judgments are
always tempered with money. 3
Our Constitution reposes in the President the power and the exclusive prerogative to extend
executive clemency under the following circumstances:
Except in cases of impeachment or as otherwise provided in this Constitution, the President
may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress. 4
143
From among the different acts of executive clemency spelled out above, the clemency granted
to petitioner in the instant case partakes of the nature of an executive pardon. A reading of
Resolution No. 1800 partly quoted hereunder is enlightening:
In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications interposed
no objection to the petition, while the Minister of Transportation and Communications, in his 4th
Indorsement dated November 17, 1980, favorably recommended the grant of executive
clemency to petitioner for the reason that "while it is a rule that an administrative case is
separate and distinct from a criminal case and an acquittal in the latter case dos not ipso
facto result in the exoneration in the former case, yet an exception could arise if the basis for
the acquittal was the innocence of the accused as in the case of petitioner Garcia.
Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil service
Commission recommends the grant of executive clemency to petitioner in view of the findings
of the court that —
instead of coming forward to the defense of the accused who actually was authorized to uproot
or recover the poles in question and of commending the latter for his high sense of responsibility
in preventing losses to the government, said high officials had even the temerity to disown and
deny the authority they gave to the accused resulting in his separation from the service and
having him all alone in defending himself against the accusation of the very government he tried
to protect.
After a careful study, this Office is inclined to grant executive clemency to petitioner in the light
of this decision of the court acquitting him of the crime of qualified theft which was based on the
same acts obtaining in Administrative Case No. 975 against him, coupled with the favorable
recommendation of the Minister of Transportation and Communications and the Civil Service
Commission.
In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clemency. 5
Time and again this Court has unfolded the effects of a pardon upon the individual to whom it
is granted. InMonsanto v. Factoran, 6 we have firmly established the general rule that while a
pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of
the law the offender is as innocent as though he never committed the offense, it does not
operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and
not forgetfulness . It does not erase the fact of the commission of the crime and the conviction
thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to
him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring
back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his
eligibility for appointment to public office which was forfeited by reason of the conviction of the
offense. But since pardon does not generally result in automatic reinstatement because the
offender has to apply for reappointment, he is not entitled to back wages.
But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this
innocence and makes him a new man and as innocent; as if he had not been found guilty of the
offense charged. 7 When a person is given pardon because he did not truly commit the offense,
the pardon relieves the party from all punitive consequences of his criminal act, thereby
restoring to him his clean name, good reputation and unstained character prior to the finding of
guilt.
In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed
from the service. However, he was later acquitted by the trial court of the charge of qualified theft based
on the very same acts for which he was dismissed. The acquittal of petitioner by the trial court was founded
not on lack of proof beyond reasonable doubt but on the fact that petitioner did not commit the offense
imputed to him. Aside from finding him innocent of the charge, the trial court commended petitioner for his
concern and dedication as a public servant. Verily, petitioner's innocence is the primary reason behind the
grant of executive clemency to him, bolstered by the favorable recommendations for his reinstatement by
the Ministry of Transportation and Communications and the Civil Service Commission.
The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of
the administrative decision which found him guilty of dishonesty and ordered his separation from the
service. This can be inferred from the executive clemency itself exculpating petitioner from the
administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of
the pardon. This signifies that petitioner need no longer apply to be reinstated to his former employment;
he is restored to his office ipso facto upon the issuance of the clemency.
Petitioner's automatic reinstatement to the government service entitles him to back wages. 8 This is meant
to afford relief to petitioner who is innocent from the start and to make reparation for what he has suffered
as a result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the
executive clemency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded to those
with have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the
charges against them. 9 There is no doubt that petitioner's case falls within the situations aforementioned
to entitle him to back wages.
Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that
carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative
decision of a branch of the Executive Department over which the President, as its head, has the power of
control. The President's control has been defined to mean "the power of an officer to alter or modify or
nullify or set aside what a subordinate officer had done in the performance of his duties and to the judgment
of the former for the latter."10 In pardoning petitioner and ordering his reinstatement, the Chief Executive
exercised his power of control and set aside the decision of the Ministry of Transportation and
Communications. The clemency nullified the dismissal of petitioner and relieved him from administrative
liability. The separation of the petitioner from the service being null and void, he is thus entitled to back
wages.
After having been declared innocent of the crime of qualified theft, which also served as basis for the
administrative charge, petitioner should not be considered to have left his office for all legal purposes, so
that he is entitled to all the rights and privileges that accrued to him by virtue of the office held, including
back wages. 11
Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an illegally
dismissed government employee who has been ordered reinstated. 12 The cases heretofore decided by
this Court show that petitioners therein were employees of local governments who were removed from
office by their local officials. The reasons given for their removal were abolition of office or position,
reduction of work force, or lack of funds on the part of the local governments concerned, which reasons
were found by this Court to be either devoid of factual basis or not sufficiently proven, otherwise, their
dismissal would have been valid and justified. In contrast, the case before us is different, involving as it
does circumstances that impel us to deviate from the general rule previously laid down on the recovery of
back wages for five (15) years. Petitioner's reinstatement in the instant case which was ordered pursuant
to a grant of executive clemency was effected not because of lack of sufficient proof of his commission of
the offense but that, more importantly, he did not commit the offense charged. Verily, law, equity and
justice dictate that petitioner be afforded compassion for the embarrassment, humiliation and, above all,
injustice caused to him and his family by his unfounded dismissal. This Court cannot help surmising the
painful stigma that must have caused petitioner, the incursion on his dignity and reputation, for having
144
been adjudged, albeit wrongfully, a dishonest man, and worse, a thief. Consequently, this Court finds it
fair and just to award petitioner full back wages from 1 April 1975 when he was illegally dismissed, to 12
March 1984 when he was reinstated. The payment shall be without deduction or qualification.
WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit dated 23 July
1985 is REVERSED and SET ASIDE, and a new one entered ordering public respondents, the Chairman
of the Commission on Audit, the Minister (now Secretary) of Land Transportation and Communications,
the Regional Director of Telecom Regional Office No. IV, or whoever may be sitting in office in their stead,
to pay the full amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based on his latest
salary scale.
SO ORDERED.
G.R. No. 87687 December 26, 1989
ISABELO T. SABELLO, petitioner,
vs.
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.
GANCAYCO, J.:
In this petition filed by a non-lawyer by reason of alleged poverty, We are called upon to decide
a unique issue of which shall be given more importance the legal technicalities of the law or the
fundamental principles of justice and fairness.
The facts are not in dispute, as follows:
Petitioner, was the Elementary School Principal of Talisay and also the Assistant Principal of
the Talisay Barangay High School of the Division of Gingoog City. The barangay high school
was in deficit at that time due to the fact that the students could hardly pay for their monthly
tuition fees. Since at that time also, the President of the Philippines who was earnestly
campaining was giving aid in the amount of P 2,000.00 for each barrio, the barrio council through
proper resolutions alloted the amount of P 840.00 to cover up for the salaries of the high school
teachers, with the honest thought in mind that the barrio high school was a barrio project and
as such therefore, was entitled to its share of the RICD fund in question. The only part that the
herein petitioner played was his being authorized by the said barrio council to withdraw the
above amount and which was subsequently deposited in the City Treasurer's Office in the name
of the Talisay Barrio High School. That was a grave error on the part of the herein petitioner as
it involves the very intricacies in the disbursement of government funds and of its technicalities.
Thus, the herein petitioner, together with the barrio captain, were charged of the violation of
Republic Act 3019, and both were convicted to suffer a sentence of one year and disqualification
to hold public office. The herein petitioner appealed his case to the Court of appeals, Manila.
The Court of appeals modified the decision by eliminating the subsidiary imprisonment in case
of insolvency in the payment of one-half of the amount being involved. The herein petitioner,
being financially battered, could no longer hire a lawyer to proceed to the highest court of the
land.
Finally, the herein petitioner was granted an ABSOLUTE PARDON by the President of the Republic of the
Philippines, restoring him to 'full civil and political rights.' With this instrument on hand, the herein petitioner
applied for reinstatement to the government service, only to be reinstated to the wrong position of a mere
classroom teacher and not to his former position as Elementary School Principal I. 1
Petitioner now prays to this Court for the following relief:
1. (that he be) Reinstated to his former position as Elementary School Principal I;
2. His government services be made continuous since September 10, 1948 which is his original
appointment until the present time;
3. (that he be) Given his back salaries corresponding to the period from September 1, 1971 to November
23,1982;
4. That all his service credits duly earned be restored;
5. And, that all other rights and privileges not mentioned herein shall also be granted. (Petition, p. 2) 2
The Solicitor General comments that there is no justiciable controversy in this case because the issue
involved is whether or not petitioner merits reappointment to the position he held prior to his conviction
that of Elementary Principal I. The Division of City Schools, Gingoog City, Region X, Department of
Education and Culture, did not act on petitioner's request. Hence, the present petition.
We believe otherwise. There is here a justiciable controversy. Petitioner claims he must be restored to the
same position he was in before he was convicted on a mere technical error and for which he was given
an absolute pardon.
This is not a hypothetical or abstract dispute. It is not academic or moot for, to our mind, there is a definite
and concrete controversy touching the legal relations of parties having adverse legal relations. This is a
real and substantial controversy admitting of specific relief through a court decree that is conclusive in
character. The case does not call for a mere opinion or advise, but for affirmative relief .
As a general rule, the question of whether or not petitioner should be reappointed to his former position is
a matter of discretion of the appointing authority, but under the circumstances of this case, if the petitioner
had been unfairly deprived of' what is rightfully his, the discretion is qualified by the requirements of giving
justice to the petitioner. It is no longer a matter of discretion on the part of the appointing power, but
discretion tempered with fairness and justice.
As to the argument that the Department of Education, Culture and Sports cannot be sued, the only answer
is that its officials can be sued for alleged grave errors in their official acts. Again, We ignore technicality
by considering this a suit against the officials of this government agency.
Taking into consideration that this petition is filed by a non-lawyer, who claims that poverty denies him the
services of a lawyer, We also set aside the requirement of exhaustion of administrative remedies and
resolved to go direct to the merits of the petition.
In Monsanto vs. Factoran, Jr., 3 this Court held that the absolute disqualification from office or ineligibility
from public office forms part of the punishment prescribed under the penal code and that pardon frees the
individual from all the penalties and legal disabilities and restores him to all his civil rights. Although such
pardon restores his eligibility to a public office it does not entitle him to automatic reinstatement. He should
apply for reappointment to said office.
In the present case after his absolute pardon, petitioner was reinstated to the service as a classroom
teacher by the Department of Education, Culture and Sports.
As there are no circumstances that would warrant the diminution in his rank, justice and equity dictate that
he be returned to his former position of Elementary School Principal I and not to that of a mere classroom
teacher.
However, the Court cannot grant his prayer for backwages from September 1, 1971 to November 23, 1982
since in Monsanto 4 this Court said he is not entitled to automatic reinstatement. Petitioner was lawfully
separated from the government service upon his conviction for an offense. Thus, although his
reinstatement had been duly authorized, it did not thereby entitle him to backwages. Such right is afforded
only to those who have been illegally dismissed and were thus ordered reinstated or to those otherwise
acquitted of the charge against them.
In the same light, the Court cannot decree that his government service be made continuous from
September 10, 1948 to the present when it is not. At any rate when he reaches the compulsory age of
retirement, he shall get the appropriate retirement benefits as an Elementary School Principal I and not as
a mere classroom teacher.
145
WHEREFORE, the petition is GRANTED in that the Secretary of the Department of Education, Culture
and Sports and/or his duly authorized representative is hereby directed to appoint petitioner to the position
of Elementary School Principal I or it equivalent, without pronouncement as to cost. This decision is
immediately executory.
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.
G.R. No. 99031 October 15, 1991
RODOLFO D. LLAMAS, petitioner,
vs.
EXECUTIVE SECRETARY OSCAR ORBOS and MARIANO UN OCAMPO III, respondents.
Mauricio Law Office for petitioner.
Ongkiko, Bucoy, Dizon & Associates for private respondent.
PARAS, J.:p
The case before Us calls for a determination of whether or not the President of the Philippines
has the power to grant executive clemency in administrative cases. In connection therewith, two
important questions are also put in issue, namely, whether or not the grant of executive
clemency and the reason therefore, are political questions beyond judicial review, and whether
or not the questioned act was characterized by grave abuse of discretion amounting to lack of
jurisdiction.
Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the Province of Tarlac and, on
March 1, 1991 he assumed, by virtue of a decision of the Office of the President, the
governorship (p. 1, Petition). Private respondent Mariano Un Ocampo III is the incumbent
Governor of the Province of Tarlac and was suspended from office for a period of 90 days.
Public respondent Oscar Orbos was the Executive Secretary at the time of the filing of this
petition and is being impleaded herein in that official capacity for having issued, by authority of
the President, the assailed Resolution granting executive clemency to respondent governor.
Sometime in 1989, petiotioner, together with Tarlac Board Members Marcelino Aganon, Jr. and
Arnaldo P. Dizon, filed on June 13, 1989 a verified complaint dated June 7, 1989 against
respondent governor before the then Department of Local Government (DLG, for short),
charging him with alleged violation of Section 203(2) (f) 203(2) (p), and 208(w), of Batas
Pambansa (B.P.) Blg. 337, otherwise known as the Local Government Code, and other
appropriate laws, among them, the Anti-Graft and Corrupt Practices ACt. Prior to that, petitoner
filed with the Office of the Omdusman a verified complainant dated November 10, 1988 against
respondent governor for the latter's alleged viloation of Section 3-G of Republic Act. (R.A.) No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
The complaint before the DLG, docketed as Administrative Case 10459, was subsequently
tried, where both petitioner and respondent govemor presented their respective evidence.
Petitioner maintains that sometime in August, 1988, respondent governor, in his official capacity
as Provincial Governor Tarlac, entered into and executed a Loan Agreement with Lingkod
Tarlac Foundation, Inc., a non-stock and non-profit organization headed by the governor himself
as chairman and controlled by his brother-in-law as executive director, trustee, and secretary;
that the said Loan Agreement was never authorized and approved by the Provincial Board, in
direct contravention of the provisions of the Local Government Code; that the said Agreement
is wholly one-sided in favor of the Foundation and grossly inimical to the interest of the Provincial
Government (because it did not provide for interest or for any type security and it did not provide
for suretyship and comptrollership or audit to control the safe disbursement of said loan); that a
total amount of P20,000,000.00 was disbursed to the aforesaid Foundation; that the
transactions constitute a fraudulent scheme to defraud the Provincial Government; and that the
said Agreement is wholly unconstitutional, illegal, a immoral. (Annex "A", Petition)
On the other hand, it is the contention of respondent governor that "the funds were intended to
generate livelihood project among the residents of Tarlac and the use of the Lingkod Tarlac
Foundation, Inc. was authorized by law and considered the best alternative as a matter of
judgment." (pp. 12-13, Appeal Memorandom); that he resigned from the said Foundation in
order to forestall any suspicion that he would influence it; that it is not true that the Loan
Agreement did not provide for continuing audit by the Provincial Government because the
Memorandum of Agreement provides otherwise; and that the Agreement is not manifestly and
grossly disadvantageous to the Provincial Government and respondent governor did not and
would not profit thereby because it provided sufficient safeguards for repayment. (Annex "A",
Petition)
After trial, the Secretary of the then Department of Local Government rendered a decision dated
September 21, 1990, dispositive portion of which reads:
WHEREFORE, Governor Mariano Un Ocampo III is, as he hereby found guilty of having violated
Section 3(g) of Republic Act No.3019, otherwise known as the Anti-Graft and Corrupt Practices
Act, which act amounts to serious neglect of duty and/or abuse of authority, for which tilp penalty
of suspension from office for a period of ninety (90) days, effective upon the finality of this
Decision, is hereby imposed upon him. (p. 3, Petition)
Parenthetically, be it noted that the Resolution imposed not a preventive suspension but a
penalty of suspension.
Respondent govemor moved for a reconsideration of the abovequoted decision but the same
was denied on October 19, 1990. Aggrieved, he appealed the DLG decision dated September
21, 1990 and the order of denial dated October 19, 1990 to the Office of the President (O.P.
Case No. 4480).
On February 26, 1991, herein public respondent Executive Secretary issued a Resolution
dismissing respondent governor's appeal and affirming the September 21, 1990 DLG decision.
Subsequently, and pursuant to Sec. 66, Chapter 4 of B.P. Blg. 337, to the effect that the decision
of the Office of the President in administrative suspension of local officials shall be immediately
executory without prejudice to appeal to appropriate courts, petitioner, on March 1, 1991, took
his oath of office as acting governor. Under the administrative suspension order, petitioner had
up to May 31, 1991 as acting governor. On the same date (March 1, 1991), respondent govemor
moved for a reconsideration of the Executive Secretary's Resolution, to which petitioner filed an
146
opposition. From the allegations of the petitioner in his petition, respondent govemor accepted
his suspension and turned over his office to petitioner.
To the surprise of petitioner, however, respondent govemor on March 19, 1991, issued an
"administrative order" dated March 8, 1991, in which the latter signified his intention to
"(continue, as I am bound to exercise my fimctions as govemor and shall hold office at my
residence," in the belief that "the pendency of my Motion for Reconsideration precludes the
coming into finality as executory the DLG decision." (Annex "E", Petition; p. 10, Comment). And,
as categorically stated in the petition, the reassumption ceremony by respondent governor was
held on May 21, 1991 (p. 8, Petition).
Without ruling on respondent governor's Motion for Reconsideration, public respondent issued
a Resolution dated May 15, 1991, in O.P. Case No. 4480, which reads:
This refers to the petition of Gov. Mariano Un Ocampo III of Tarlac for executive clemency,
interposed in connection with the decision of the Secretary of then Department of Local
Governmen (DLG) dated 21 September 1990, as affirmed in a Resolution of this Office dated
26 February 1991, suspending petitioner from office for period of ninety (90) days upon the
finality of said decision.
As will be recalled, the DLG Secretary imposed the penalty of suspension upon his finding that
petitioner was guilty of serious neglect of duty and/or abuse of authority for entering into a loan
contract — with the Lingkod Tarlac Foundation, Inc. (LTFI) — grossly/manifestly
disadvantageous to Tarlac Province. In his letter-petition of 10 May 1991, thereby pleading for
a thirty (30)-day reduction of his suspension, petitioner invited attention to the DLG Secretary's
decision clearing him of having personally benefitted from the questioned transaction. In the
same letter, petitioner manifests serving more than sixty (60) days of the ninety-day suspension.
Previously, petitioner submitted documents and letters from his constituents tending to show
the relative success of his livelihood loan program pursue under the aegis of the LTFI and/or
the Foundation's credible loan repayment record. To cite some:
1. Certification of the Chairman,Tarlac Integrated Livelihood Cooperative, Inc., attesting to the
full payment of its loan (P15.05 M) plus interest with LTFI;
2. Certification of the Manager, Rural Bank of Geron (Tarlac), Inc., attesting to the gradual
liquidation of the loan granted to family-borrowers out of funds provided by LTFI;
3. Letter of Jover's Phil., expressing gratitude for the loan assistance extended for its export
activities by LTFI;
4. Letter of the Tarlac Provincial Agricultural Officer i forming that the proceeds of the loan from
LTFI have bee utilized in hybrid com production; and
5. Letter of the President of the Federation of Tobacco Leaf Producers of Tarlac, Inc., informing
of the payment of 76 of the amount (P203,966.00) loaned to the Federation for tobacco
production.
Petitioner's act, vis-a-vis the loan to LTFI, may have been promp by an over eagerness to
accelerate the delivery of livelihood services to his provincemates. As the truism goes, however,
the end does not always justify the means. Be that as it may, but without belaboring the propriety
of the loan agreement aforementioned, some measure of leniency may be accorded petitioner
as the purpose of his suspen sion may have made its mark.
WHEREFORE, Governor Mariano Un Ocampo III is hereby granted executive clemency in the
sense that his ninety-day suspension is hereby reduced to the period already served.
SO ORDERED.
(Annex "F", Petition; pp. 25-26, Rollo)
By virtue of the aforequoted Resolution, respondent governor reassumed the governorship of
the province, allegedly withou any notification made to the petitioner.
Petitioner posits that the issuance by public respondent of the May 15, 1991 Resolution was
"whimsical, capricious and despotic, and constituted grave abuse of discretion amounting lack
of jurisdiction," (p. 6, petition) basically on the ground th executive clemency could be granted
by the President only in criminal cases as there is nothing in the statute books or even in the
Constitution which allows the grant thereof in administrative cases. Petitioner also contends that
since respondent governor refused to recognize his suspension (having reassumed the
governorship in gross defiance of the suspension order), executive clemency cannot apply to
him; that his rights to due process were violated because the grant of executive clemency was
so sudden that he was not even notified thereof; and that despite a finding by public respondent
of impropriety in the loan transaction entered into by respondent governor, the former failed to
justify the reduction of the penalty of suspension on the latter. Petitioner further alleges that the
exftutive clemency granted by public respondent was "the product of a hocus-pocus strategy"
(p. 1, Manifestation with Motion, etc.) because there was allegedly no real petition for the grant
of executive clemency filed by respondent govemor.
Batas Pambansa Blg. 337 provides:
Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister
of Local Government if the respondent is a provincial or city official, ...
(2) Preventive suspension may be imposed at any time after the issues are joined, when there
is reasonable ground to believe that the respondent has committed the act or acts complained
of, when the evidence of culpability is strong, when the gravity of the offense s warrants, or
when the continuance in office of the respondent coul influence the witnesses or pose a threat
to the safety and integrity the records and other evidence. In all cases, preventive suspension
shall not extend beyond sixty days after the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office
without prejudice to the continuation the proceedings against him until its termination.
(Emphasis supplied)
It is admitted by petitioner that since March 1, 1991, he has assumed the governorship. A portion
of the petition is hereon der quoted as follows:
7. [On February 28, 1991], and in accordance with the provisions of the Local Government Code
(Sec. 66, Chapter 4, Batas Pambansa Blg. 337), to the effect that the decision of the Office of
the President in an administrative suspension of local officials shall be immediately executory
without prejudice to appeal to appropriate courts, Petitioner Llamas took his oath of office as
acting govemor. Under the administrative suspension order, Llamas had up to May 31 [sic 29]
1991 as acting governor;
8. A copy of this oath of office is attached and made a part hereof as Annex B;
9. Significantly, this oath of office was sworn to by Petitioner Llamas before Secretary Santos
of the newly created Department Interior and Local Government, as shown by the lower portion
Annex B, and by a picture of the oathtaking itself, attached and mad a part hereof as Annex B-
1;
147
10. Subsequently, Petitioner Llamas and Respondent Ocampo met, where Ocampo was shown
Llamas' oath of office. During meeting, held in the presence of all department heads at the provi
cial capitol and in the presence of various local government offici and representatives of the
media, Ocampo agreed to turn over reigns of the provincial government to Petitioner;
11. In fact, Ocampo had asked the department heads and all other officials of the provincial
government of Tarlac to extend their cooperation to Llamas, during the ninety days that the
latter would assume the governorship;
12. And, as if this was not enough, Ocampo even made announcements in the media that he
was allowing Petitioner Llamas to perform his functions as acting governor at the Office of the
Govern at the Capitol where he (Ocampo) used to hold office (true enough Ocampo has
subsequently allowed Llamas to hold office at the of the Governor, with Ocampo even escorting
the acting therein last March 4, 1991);
l 3. An account of Ocampo's acceptance of his suspension and of his having turned over his
office to Petitioner Llamas was published, front page, in the March 5, 1991 issue of the Manila
Bulletin. A copy of this news account is attached and made a part hereof as Annex C);
14. Furthermore, various other officials, President Aquino Rep. Jose Cojuangco included, have
extended recognition to Petitions Llamas' assumption of the governorship. Llamas met with
President Aquino and Rep. Cojuangco and, during this meeting, the two highest officials of the
land have asked Llamas to discharge his duties acting governor;
15. Secretary Santos, for that matter, has issued a designation to Tarlac Senior Board Member
Aganon, dated March 18, 1991, a pointing bim as acting vice governor of the province, "in view
of the suspension of Gov. Mariano Un Ocampo III, and the assumption Vice Governor Rodolfo
Llamas as acting governor." A copy of this designation is attached and made a part hereof as
Annex D;
xxx xxx xxx
30. ... [T]he reassumption ceremony by [Governor] Ocampo was held [in the] morning of May
21, 1991 ... (pp- 2-4 & 7, Petition; pp. 3-5 & 8, Rollo)
It is prayed in the instant petition dated May 21, 1991 that:
b. In the meantime that this action is pending, and irnmediately upon the filing hereof, a
temporary restraining order be issued stopping the Respondents from enforcing, in any manner,
the aforesaid contested resolution, and Respondent Ocampo, firom continuing with his
reassumption of the governorship. IN THE ALTERNATIVE, that a cease and desist order be
issued against Respondent Ocampo stopping him from continuing with hiii reassumption of the
governorship.
Let us first deal with the issue on jurisdiction. Respondent govemor avers that since under the
Constitution fiffl discretionary authority is granted to the President on the exercise of executive
clemency, the same constitutes a political question which is beyond judicial review.
Such a rule does not hold true in the case at bar. While it is true that courts cannot inquire into
the manner in which the President's discretionary powers are exercised or into the wisdom for
its exercise, it is also a settled rule that when the issue involved concerns the validity of such
discretionary powers or whether said powers are within the limits prescribed by the Constitution,
We will not decline to exercise our power of judicial review. And such review does not constitute
a modification or correction of the act of the President, nor does it constitute interference with
the functions of the President. In this connection, the case of Tanada and Macapagal vs.
Cuenco, et al., 103 Phil. 1051, is very enlightening, and We quote:
Elsewhere in this treatise the well-known and well-established principle is considered that it is
not within the province of the courts to pass judgment upon the policy of legislative or executive
action. Where, therefore, discretionary powers are granted by the Consfitution or by statute, the
manner in which those powers are exercised is not subject to judicial review. The courts,
therefore, concern themselves only with the question as to the existence and extent of these
discretionary powers.
As distinguished from the judicial, the legislative and executive departments are spoken of as
the political departments of government because in very many cases their action is necessarily
dictated by considerations of public or political policy. These considerations of public or political
policy of course will not permit the legislature to violate constitutional provisions, or the executive
to exercise authority not granted him by the Constitution or by statute, but, within these limits,
they do permit the departments, separately or together, to recognize that a certain set of facts
exists or that a given status exists, and these determinations, together with the consequences
that flow therefrom, may not be traversed in the courts. (Willoughby on the Constitution of the
United States, Vol. 3, p. 1326).
xxx xxx xxx
What is generally meant, when it is said that a question is political, and not judicial, is that it is
a matter which is to be exercised by the people in their primary political capacity, or that it has
been specifically delegated to some other department or particular officer of the goverrunent,
with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, 51 L.R.A. 561; In Re
Gunn, 50 Fan. 155; 32 Pac. 470, 948, 19 L. RA. 519; Green vs. Mills, 69 Fed. 852, 16, C. CA
516, 30 L.R.A- 90; Fletcher vs. Tuttle, 151 111, 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep.
220. Thus the Legislature may in its discretion determine whether it will pass a law or submit a
proposed constitutional amendment to the people. The courts have no judicial control over such
matters, not merely because they involve political question, but because they are matters which
the people have by the Constitute delegated to the Legislature. The Governor may exercise the
powers delegated to him, free from judicial control, so long as he observes the laws and acts
within the limits of the power conferred. His discretionary acts cannot be controllable, not
primarily because they are of a political nature, but because the Constitution and laws have
placed the particular matter under his control. But every officer under a constitutional
government must act according to law and subject him to the restraining and controlling power
of the people, acting through the courts, as well as through the executive or the Legislature.
One department is just as representative as the other, and the judiciary the department which
is charged with the special duty of determinining the limitations which the law places upon all
official action. The recognition of this principle, unknown except in Great Britain and America,
is necessary, to "the end that the government may be one of laws and not men" — words which
Webster said were the greatest contained in any written constitutional document.
Besides, under the 1987 Constitution, the Supreme Court has been conferred an "expanded
jurisdiction" to review the decisions of the other branches and agencies of the government to
determine whether or not they have acted within the bounds of the Constitution (See Art. VIII,
Sec. 1, Constitution). "Yet, in the exercise thereof, the Court is to merely check whether or not
the govermental branch or agency has gone beyond the constitutional limits of its jurisdiction,
148
not that it erred or has a different view" (Co vs. Electoral Tribunal of the House of
Representatives & Ong, G.R. Nos. 92191-92 and Balanquit vs. Electoral Tribunal of the House
of Representatives & Ong, G.R Nos. 92202-03, July 30, 1991).
In the case at bar, the nature of the question for determination is not purely political. Here, we
are called upon to decide whether under the Constitution the President may grant executive
clemency in administrative cases. We must not overlook the fact that the exercise by the
President of her power of executive clemency is subject to constitutional l'um'tations. We will
merely check whether the particular measure in question has been in accordance with law. In
so doing, We will not concern ourselves with the reasons or motives which actuate the President
as such is clearly beyond our power of judicial review.
Petitioner's main argument is that the President may grant executive clemency only in criminal
cases, based on Article VII, Section 19 of the Constitution which reads:
Sec. 19. Except in cases of impeachment, or as otherwise pro vided in this Constitution, the
President may grant reprieves, commu tations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all the
members of the Congress. (Emphasis supplied)
According to the petitioner, the qualifying phrase "after conviction by final judgment" applies
solely to criminal cases, and no other law allows the grant of executive clemency or pardon to
anyone who has been "convicted in an administrative case," allegedly because the word
"conviction" refers only to criminal cases (par. 22-b, c, d, Petition). Petitioner, however,
describes in his very own words, respondent governor as one who has been "convicted in an
administrative case" (par. 22-a, petition). Thus, petitioner concedes that the word "conviction"
may be used either in a criminal case or in an administrative case. In Layno, Sr. vs.
Sandiganbayan, 136 SCRA 536, We ruled:
For misfeasance or malfeasance ... any [elective official] could ... be proceeded against
administratively or ... criminally. In either case, his culpability must be established ...
It is also important to note that respondent govemor's Motion for Reconsideration filed on March
1, 1991 was withdrawn in his petition for the grant of executive clemency, which fact rendered
the Resolution dated February 26, 1991 affirming the DLG Decision (which found respondent
governor guilty of neglect of duty and/or abuse of authority and which suspended him for ninety
(90) days) final.
Moreover, applying the doctrine "Ubi lex non distinguit, nec nos distinguire debemos," We
cannot sustain petitioner's view. In other words, if the law does not distinguish, so We must no
distinguish. The Constitution does not distinguish between which cases executive clemency
may be exercised by the President, with the sole exclusion of impeachment cases. By the same
token, if executive clemency may be exercised only in criminal cases, it would indeed be
unnecessary to provide for the exclusion of impeachment cases from the coverage of Article
VII, Section 19 of the Constitution. Following petitioner's proposed interpretation, cases of
impeachment are automatically excluded inasmuch as the same do not necessarily involve
criminal offenses.
In the same vein, We do not clearly see any valid and convincing reason why the President
cannot grant executive clemency in administrative cases. It is Our considered view that if the
President can grant reprieves, commutations and pardons, and remit fines and forfeitures in
criminal cases, with much more reason can she grant executive clemency in administrative
cases, which are clearly less serious than criminal offenses.
A number of laws impliedly or expressly recognize or support the exercise of the executive
clemency in administrative cases.
Under Sec. 43 of P.D. 807, "In meritorious cases, ..., the President may commute or remove
administrative penalties or disabilities issued upon officers and employees, in disciplinary
cases, subject to such terms and conditions as he may impose in the interest of the service."
During the deliberations of the Constitutional Commission, a subject of deliberations was the
proposed amendment to Art. VII, Sec. 19 which reads as follows: "However, the power to grant
executive clemency for violation of corrupt practices laws may be limited by legislation."The
Constitutional Commission, however, voted to remove the amendment, since it was in
derogation of the powers of the President. As Mr. Natividad stated:
I am also against this provision which will again chip more powers from the President. In case
of other criminals convicted in our society we extend probation to them while in this case, they
have already been convicted and we offer mercy. The only way we can offer mercy to them is
through this executive clemency extended to them by the President. If we still close this avenue
to them, they would be prejudiced even worse than the murderers and the more vicious killers
in our society ....
The proposal was primarily intended to prevent the President from protecting his cronies.
Manifestly, however, the Commission preferred to trust in the discretion of Presidents and
refrained from putting additional limitations on his clemency powers. (II RECORD of the
Constitutional Commission, 392, 418-419, 524-525)
It is evident from the intent of the Constitutional Commission, therefore, that the President's
executive clemency powers may not be limited in terms of coverage, except as already provided
in the Constitution, that is, "no pardon, amnesty, parole, or suspension of sentence for violation
of election laws, rules and regulations shall be granted by the President without the favorable
recommendation of the COMELEC" (Article IX, C, Section 5, Constitution). If those already
adjudged guilty criminally in court may be pardoned, those adjudged guilty administratively
should likewise be extended the same benefit.
In criminal cases, the quantum of evidence required to convict an individual is proof beyond
reasonable doubt, but the Constitution grants to the President the power to pardon the act done
by the proved criminal and in the process exempts him from punishment therefor. On the other
hand, in administrative cases, the quantum of evidence required is mere substantial evidence
to support a decision, not to mention that as to the admissibility of evidence, administrative
bodies are not bound by the technical and rigid rules of admissibility prescribed in criminal
cases. It will therefore be unjust and unfair for those found guilty administratively of some charge
if the same effects of pardon or executive clemency cannot be extended to them, even in the
sense of modifying a decision to subserve the interest of the public. (p. 34, Comment of public
respondent)
Of equal importance are the following provisions of Executive Order No. 292, otherwise known
as the Administrative Code of 1987, Section I, Book III of which provides:
SECTION 1. Power of Control. — The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
149
SECTION 38. Definition of Administrative Relationships. — Unless otherwise expressly stated
in the Code or in other laws defining the special relationships of particular agencies,
administrative relationships shall be categorized and defined as follows:
(1) Supervision and Control. — Supervision and control shall include authority to act directly
whenever a specific function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve, reverse or modify acts
and decisions of subordinate officials or units; determine priorities in the execution of plans and
programs. Unless a different meaning is explicitly provided in the specific law governing the
relationship of particular agencies the word "control" shall encompass supervision and control
as defined in this paragraph. ... (emphasis supplied)
The disciplinary authority to investigate, suspend, and remove provincial or city officials
devolves at the first instance on the Department of Interior and Local Government (Secs. 61
and 65, B.P. Blg. 337) and ultimately on the President (Sec. 66). Implicit in this authority,
however, is the "supervision and control" power of the President to reduce, if circumstances so
warrant, the imposable penalty or to modify the suspension or removal order, even "in the
sense" of granting executive clemency. "Control," within the meaning of the Constitution, is the
power to substitute one's own judgment for that of a subordinate. Under the doctrine of Qualified
Political Agency, the different executive departments are mere adjuncts of the President. Their
acts are presumptively the acts of the President until countermanded or reprobated by her
(Vinena v. Secretary, 67 Phil. 451; Free Telephone Workers Union vs. Minister of Labor and
Employment, 108 SCRA 767 [1981]). Replying upon this view, it is urged by the Solicitor
General that in the present case, the President, in the exercise of her power of supervision and
control over all executive departments, may substitute her decision for that of her subordinate,
most especially where the basis therefor would be to serve the greater public interest. It is clearly
within the power of the President not only to grant "executive clemency" but also to reverse or
modify a ruling issued by a subordinate against an erring public official, where a reconsideration
of the facts alleged would support the same. It is in this sense that the alleged executive
clemency was granted, after adducing reasons that subserve the public interest. — "the relative
success of . . . livelihood loan program." (pp. 39-40, Comment of public respondent)
We wish to stress however that when we say the President can grant executive clemency in
administrative cases, We refer only to all administrative cases in the Executive branch, not in
the Judicial or Legislative branches of the government.
Noteworthy is the fact that on March 1, 1991, respondent governor filed a motion for
reconsideration and the same may be regarded as implicitly resolved, not only because of its
withdrawal but also because of the executive clemency which in effect reduced the penalty,
conformably with the power of "control."
On petitioner's argument that private respondent's motion for reconsideration has abated the
running of the reglementary period for finality of judgment in O.P. Case No. 4480 (that is, there
being no final judgment to speak of, the pardon granted was premature and of no effect, We
reiterate the doctrine that upon acceptance of a presidential pardon, the grantee is deemed to
have waived any appeal which he may have filed. Thus, it was held that:
The commutation of the penalty is impressed with legal significance. That is an exercise of
executive clemency embraced in the pardoning power. According to the Constitution: "The
President may except in cases of impeachment, grant reprieves, commutations and pardons,
remit fines and forfeitures and, with the concurrence of the Batasang Pambansa, grant amnesty.
"Once granted, it is binding and effective. It serves to put an end to this appeal." (Mansanto v.
Factoran, Jr., G.R. No. 78239, 170 SCRA 190. 196). (See also Peo v. Crisola, 129 SCRA 13)
Consequently, respondent governor's acceptance of the presidential pardon "serves to put an
end" to the motion for reconsideration and renders the subject decision final, that of the period
already served.
Finally, petitioner's argument that his constitutional rights to due process were violated is
uruneritorious. Pardon has been defined as "the private, though official, act of the executive
magistrate, delivered to the individual for whose benefit it is intended and not communicated
officially to the court. ..." (Bernas, The Constitution of the Philippines, Vol. II, First Ed. 1988, pp.
239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]). Thus, assuming that petitioner was not
notified of the subject pardon, it is only because said notice is unnecessary. Besides, petitioner's
claim that respondent governor has not begun serve sentence is belied by his very own factual
allegations in his petition, more particularly that he served as Acting Governor of Tarlac effective
from the date he took his Oath of Office on February 28, 1991 up to the time respondent
govemor reassumed the governorship of Tarlac on May 21, 1991 (par. 30 petition). It is,
therefore, error to say that private respondent did not serve any portion of the 90-day
suspension meted upon him.
We fail to see any grave abuse of discretion amounting to lack or in excess of jurisdiction
committed by public respondent.
WHEREFORE, judgment is hereby rendered: (1) DECLARING that the President did not act
arbitrarily or with abuse, much less grave abuse of discretion in issuing the May 15, 1991
Resolution granting on the grounds mentioned therein, executive clemency to respondent
governor and that, accordingly, the same is not unconstitutional (without prejudice to criminal
proceedings which have been filed or may be filed against respondent governor), and (2)
DENYING the rest of the prayers in the petition for being unmeritorious, moot and academic.
No costs.
SO ORDERED.
150

G.R. No. 76872 July 23, 1987
WILFREDO TORRES Y SUMULONG, petitioner,
vs.
HON. NEPTALI A. GONZALES, THE CHAIRMAN, BOARD OF PARDONS AND PAROLE,
and THE DIRECTOR, BUREAU OF PRISONS, respondents.
FELICIANO, J.:
This is an original petition for habeas corpus filed on behalf of petitioner Wilfredo S. Torres,
presently confined at the National Penitentiary in Muntinlupa. We issued the writ and during the
hearing and from the return filed by the respondents through the Solicitor General, and other
pleadings in this case, the following facts emerged:
1. Sometime before 1979 (no more specific date appears in the records before this Court),
petitioner was convicted by the Court of First Instance of Manila of the crime of estafa (two
counts) and was sentenced to an aggregate prison term of from eleven (11) years, ten (10)
months and twenty-two (22) days to thirty-eight (38) years, nine (9) months and one (1) day,
and to pay an indemnity of P127,728.75 (Criminal Cases Nos. 68810, 91041 and F-138107).
These convictions were affirmed by the Court of Appeals (CA-G.R. Nos. 14773-CR and 17694-
CR). The maximum sentence would expire on 2 November 2000.1
2. On 18 April 1979, a conditional pardon was granted to the petitioner by the President of the
Philippines on condition that petitioner would "not again violate any of the penal laws of the
Philippines. Should this condition be violated, he will be proceeded against in the manner
prescribed by law."2 Petitioner accepted the conditional pardon and was consequently released
from confinement.
3. On 21 May 1986, the Board of Pardons and Parole (the "Board") resolved to recommend to
the President the cancellation of the conditional pardon granted to the petitioner. In making its
recommendation to the President, the Board relied upon the decisions of this Court in Tesoro
vs. Director of Prisons (68 Phil. 154 [1939]) and Espuelas vs. Provincial Warden of Bohol (108
Phil. 356 [1960]). The evidence before the Board showed that on 22 March 1982 and 24 June
1982, petitioner had been charged with twenty counts of estafa in Criminal Cases Nos. Q-19672
and Q-20756, which cases were then (on 21 May 1986) pending trial before the Regional Trial
Court of Rizal (Quezon City). The record before the Board also showed that on 26 June 1985,
petitioner had been convicted by the Regional Trial Court of Rizal (Quezon City) of the crime of
sedition in Criminal Case No. Q-22926; this conviction was then pending appeal before the
Intermediate Appellate Court. The Board also had before it a letter report dated 14 January
1986 from the National Bureau of Investigation ("NBI"), addressed to the Board, on the
petitioner. Per this letter, the records of the NBI showed that a long list of charges had been
brought against the petitioner during the last twenty years for a wide assortment of crimes
including estafa, other forms of swindling, grave threats, grave coercion, illegal possession of
firearms, ammunition and explosives, malicious mischief, violation of Batas Pambansa Blg. 22,
and violation of Presidential Decree No. 772 (interfering with police functions). Some of these
charges were Identified in the NBI report as having been dismissed. The NBI report did not
purport to be a status report on each of the charges there listed and Identified.
4. On 4 June 1986, the respondent Minister of Justice wrote to the President of the Philippines
informing her of the Resolution of the Board recommending cancellation of the conditional
pardon previously granted to petitioner.
5. On 8 September 1986, the President cancelled the conditional pardon of the petitioner.
6. On 10 October 1986, the respondent Minister of Justice issued "by authority of the President"
an Order of Arrest and Recommitment against petitioner. The petitioner was accordingly
arrested and confined in Muntinlupa to serve the unexpired portion of his sentence.
Petitioner now impugns the validity of the Order of Arrest and Recommitment. He claims that
he did not violate his conditional pardon since he has not been convicted by final judgment of
the twenty (20) counts of estafa charged in Criminal Cases Nos. Q-19672 and Q-20756 nor of
the crime of sedition in Criminal Case No. Q-22926.3Petitioner also contends that he was not
given an opportunity to be heard before he was arrested and recommitted to prison, and
accordingly claims he has been deprived of his rights under the due process clause of the
Constitution. The issue that confronts us therefore is whether or not conviction of a crime by
final judgment of a court is necessary before the petitioner can be validly rearrested and
recommitted for violation of the terms of his conditional pardon and accordingly to serve the
balance of his original sentence. This issue is not novel. It has been raised before this Court
three times in the past. This Court was first faced with this issue in Tesoro Director of
Prison.4 Tesoro, who had been convicted of the crime of falsification of public documents, was
granted a parole by the then Governor-General. One of the conditions of the parole required
the parolee "not [to] commit any other crime and [to] conduct himself in an orderly
manner."5 Two years after the grant of parole, Tesoro was charged before the Justice of the
Peace Court of San Juan, Rizal, with the crime of adultery said to have been committed with
the wife of Tesoro's brother-in-law. The fiscal filed with the Court of First Instance the
corresponding information which, however, was dismissed for non-appearance of the
complainant. The complainant then went before the Board of Indeterminate Sentence and
charged Tesoro with violation of the conditions of his parole. After investigation by the parole
officer, and on the basis of his report, the Board recommended to the President of the
Philippines the arrest and recommitment of the petitioner. Tesoro contended, among other
things, that a "judicial pronouncement to the effect that he has committed a crime" is necessary
before he could properly be adjudged as having violated his conditional parole. Addressing this
point, this Court, speaking through then Mr. Justice Moran, held that the determination of
whether the conditions of Tesoro's parole had been breached rested exclusively in the sound
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judgment of the Governor-General and that such determination would not be reviewed by the
courts. As Tesoro had consented to place his liberty on parole upon the judgment of the power
that had granted it, we held that "he [could not] invoke the aid of the courts, however erroneous
the findings may be upon which his recommitment was ordered."6 Thus, this Court held that by
accepting the terms under which the parole had been granted, Tesoro had in effect agreed that
the Governor-General's determination (rather than that of the regular courts of law) that he had
breached one of the conditions of his parole by committing adultery while he was conditionally
at liberty, was binding and conclusive upon him. In reaching this conclusion, this Court relied
upon Section 64 (i) of the Revised Administrative Code which empowered the Governor-
General
to grant to convicted prisoners reprieves or pardons, either plenary or partial, conditional or
unconditional; to suspend sentences without parole, remit fines, and order the discharge of any
convicted person upon parole, subject to such conditions as he may impose; and to authorize
the arrest and recommitment of any such person who, in his judgment, shall fail to comply with
the condition or conditions, of his pardon, paroleor suspension of sentence. (Emphasis
supplied) In Sales vs. Director of Prisons,7 the petitioner had been convicted of the crime of
frustrated murder. After serving a little more than two years of his sentence, he was given a
conditional pardon by the President of the Philippines, "the condition being that he shall not
again violate any of the penal laws of the Philippines and that, should this condition be violated,
he shall be proceeded against in the manner prescribed by law."8 Eight years after the grant of
his conditional pardon, Sales was convicted of estafa and sentenced to three months and
eleven days ofarresto mayor. He was thereupon recommitted to prison to serve the unexpired
portion of his original sentence. Sales raised before this Court two principal contentions. Firstly,
he argued that Section 64 (i) of the Revised Administrative Code had been repealed by Article
159 of the Revised Penal Code. He contended, secondly, that Section 64 (i) was in any case
repugnant to the due process clause of the Constitution (Article III [1], 1935 Constitution). This
Court, through Mr. Justice Ozaeta speaking for the majority, rejected both contentions of Sales.
Sales held, firstly, that Article 159 of the Revised Penal Code did not repeal Section 64 (i)
Revised Administrative Code. It was pointed out that Act No. 4103, the Indeterminate Sentence
Law, which was enacted subsequent to the Revised Penal Code, expressly preserved the
authority conferred upon the President by Section 64. The Court also held that Article 159 and
Section 64 (i) could stand together and that the proceeding under one provision did not
necessarily preclude action under the other. Sales held, secondly, that Section 64 (i) was not
repugnant to the constitutional guarantee of due process. This Court in effect held that since
the petitioner was a convict "who had already been seized in a constitutional was been
confronted by his accusers and the witnesses against him-, been convicted of crime and been
sentenced to punishment therefor," he was not constitutionally entitled to another judicial
determination of whether he had breached the condition of his parole by committing a
subsequent offense. Thus: [a] statute [like Section 64 (i)] supervenes to avoid the necessity for
any action by the courts in the premises. The executive clemency under it is extended upon the
conditions named in it, and he accepts it upon those conditions. One of these is that the
governor may withdraw his grace in a certain contingency, and another is that the governor
shall himself determine when that contingency has arisen. It is as if the convict, with full
competency to bind himself in the premises, had expressly contracted and agreed, that,
whenever the governor should conclude that he had violated the conditions of his parole, an
executive order for his arrest and remandment to prison should at once issue, and be conclusive
upon him. 9 In Espuelas vs. Provincial Warden of Bohol,10 the petitioner had been convicted of
the crime of inciting to sedition. While serving his sentence, he was granted by the President a
conditional pardon "on condition that he shall not again violate any of the penal laws of the
Philippines."11 Espuelas accepted the conditional pardon and was released from confinement.
Sometime thereafter, he was convicted by the Justice of the Peace Court in Tagbilaran, Bohol,
of the crime of usurpation of authority. He appealed to the Court of First Instance. Upon motion
of the provincial fiscal, the Court of First Instance dismissed the case provisionally, an important
prosecution witness not having been available on the day set for trial. A few months later, upon
recommendation of the Board of Pardons and Parole, the President ordered his recommitment
to prison to serve the unexpired period of his original sentence.
The Court in Espuelas reaffirmed the continuing force and effect of Section 64 (i) of the Revised
Administrative Code. This Court, quoting Tesoro and Sales, ruled that:
Due process is not necessarily judicial The appellee had had his day in court and been afforded
the opportunity to defend himself during his trial for the crime of inciting to sedition, with which
he was charged, that brought about or resulted in his conviction, sentence and confinement in
the penitentiary. When he was conditionally pardoned it was a generous exercise by the Chief
Executive of his constitutional prerogative.The acceptance thereof by the convict or prisoner
carrie[d] with it the authority or power of the Executive to determine whether a condition or
conditions of the pardon has or have been violated. To no other department of the Government
[has] such power been intrusted. 12
The status of our case law on the matter under consideration may be summed up in the following
propositions:
1. The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely
executive acts which are not subject to judicial scrutiny.
2. The determination of the occurrence of a breach of a condition of a pardon, and the proper
consequences of such breach, may be either a purely executive act, not subject to judicial scrutiny under
Section 64 (i) of the Revised Administrative Code; or it may be a judicial act consisting of trial for and
conviction of violation of a conditional pardon under Article 159 of the Revised Penal Code. Where the
President opts to proceed under Section 64 (i) of the Revised Administrative Code, no judicial
pronouncement of guilt of a subsequent crime is necessary, much less conviction therefor by final
judgment of a court, in order that a convict may be recommended for the violation of his conditional pardon.
3. Because due process is not semper et unique judicial process, and because the conditionally pardoned
convict had already been accorded judicial due process in his trial and conviction for the offense for which
he was conditionally pardoned, Section 64 (i) of the Revised Administrative Code is not afflicted with a
constitutional vice. We do not believe we should depart from the clear and well understood rules and
doctrine on this matter. It may be emphasized that what is involved in the instant case is not the
prosecution of the parolee for a subsequent offense in the regular course of administration of the criminal
law. What is involved is rather the ascertainment of whether the convict has breached his undertaking that
he would "not again violate any of the penal laws of the Philippines" for purposes of reimposition upon him
of the remitted portion of his original sentence. The consequences that we here deal with are the
consequences of an ascertained breach of the conditions of a pardon. A convict granted conditional
pardon, like the petitioner herein, who is recommitted must of course be convicted by final judgment of a
court of the subsequent crime or crimes with which he was charged before the criminal penalty for such
subsequent offense(s) can be imposed upon him. Again, since Article 159 of the Revised Penal Code
defines a distinct, substantive, felony, the parolee or convict who is regarded as having violated the
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provisions thereof must be charged, prosecuted and convicted by final judgment before he can be made
to suffer the penalty prescribed in Article 159.1avvphi1
Succinctly put, in proceeding against a convict who has been conditionally pardoned and who is alleged
to have breached the conditions of his pardon, the Executive Department has two options: (i) to proceed
against him under Section 64 (i) of the Revised Administrative Code; or (ii) to proceed against him under
Article 159 of the Revised Penal Code which imposes the penalty of prision correccional, minimum period,
upon a convict who "having been granted conditional pardon by the Chief Executive, shall violate any of
the conditions of such pardon." Here, the President has chosen to proceed against the petitioner under
Section 64 (i) of the Revised Administrative Code. That choice is an exercise of the President's executive
prerogative and is not subject to judicial scrutiny.
WHEREFORE, this Petition is hereby DISMISSED. No pronouncement as to costs. SO ORDERED.
G.R. No. L-14279 October 31, 1961
THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF
CUSTOMS, petitioners,
vs.
EASTERN SEA TRADING, respondent.
Office of the Solicitor General for petitioners.
Valentin Gutierrez for respondent.
CONCEPCION, J.:
Petition for review of a judgment of the Court of Tax Appeals reversing a decision of
the Commissioner of Customs.
Respondent Eastern Sea Trading was the consignee of several shipments of onion
and garlic which arrived at the Port of Manila from August 25 to September 7, 1954.
Some shipments came from Japan and others from Hong Kong. In as much as none
of the shipments had the certificate required by Central Bank Circulars Nos. 44 and 45
for the release thereof, the goods thus imported were seized and subjected to forfeiture
proceedings for alleged violations of section 1363(f) of the Revised Administrative
Code, in relation to the aforementioned circulars of the Central Bank. In due course,
the Collector of Customs of Manila rendered a decision on September 4, 1956,
declaring said goods forfeited to the Government and — the goods having been, in the
meantime, released to the consignees on surety bonds, filed by the same, as principal,
and the Alto Surety & Insurance Co., Inc., as surety, in compliance with orders of the
Court of First Instance of Manila, in Civil Cases Nos. 23942 and 23852 thereof —
directing that the amounts of said bonds be paid, by said principal and surety, jointly
and severally, to the Bureau of Customs, within thirty (30) days from notice.
On appeal taken by the consignee, said decision was affirmed by the Commissioner of
Customs on December 27, 1956. Subsequently, the consignee sought a review of the
decision of said two (2) officers by the Court of Tax Appeals, which reversed the
decision of the Commissioner of Customs and ordered that the aforementioned bonds
be cancelled and withdrawn. Hence, the present petition of the Commissioner of
Customs for review of the decision of the Court of Tax Appeals.
The latter is based upon the following premises, namely: that the Central Bank has no
authority to regulate transactions not involving foreign exchange; that the shipments in
question are in the nature of "no-dollar" imports; that, as such, the aforementioned
shipments do not involve foreign exchange; that, insofar as a Central Bank license and
a certificate authorizing the importation or release of the goods under consideration are
required by Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that
the seizure and forfeiture of the goods imported from Japan cannot be justified under
Executive Order No. 328,1 not only because the same seeks to implement an executive
agreement2 — extending the effectivity of our3 Trades and Financial Agreements4 with
Japan — which (executive agreement), it believed, is of dubious validity, but, also,
because there is no governmental agency authorized to issue the import license
required by the aforementioned executive order.
The authority of the Central Bank to regulate no-dollar imports and the validity of the
aforementioned Circulars Nos. 44, and 45 have already been passed upon and
repeatedly upheld by this Court (Pascual vs. Commissioner of Customs, L-10979 [June
30, 1959]; Acting Commissioner of Customs vs. Leuterio, L-9142 [October 17, 1959]
Commissioner of Customs vs. Pascual, L-9836 [November 18, 1959]; Commissioner
of Customs vs. Serree Investment Co., L-12007 [May 16, 1960]; Commissioner of
Customs vs. Serree Investment Co., L-14274 [November 29, 1960]), for the reason
that the broad powers of the Central Bank, under its charter, to maintain our monetary
stability and to preserve the international value of our currency, under section 2 of
Republic Act No. 265, in relation to section 14 of said Act — authorizing the bank to
issue such rules and regulations as it may consider necessary for the effective
discharge of the responsibilities and the exercise of the powers assigned to the
Monetary Board and to the Central Bank — connote the authority to regulate no-dollar
imports, owing to the influence and effect that the same may and do have upon the
stability of our peso and its international value.
The Court of Tax Appeals entertained doubts on the legality of the executive agreement
sought to be implemented by Executive Order No. 328, owing to the fact that our
Senate had not concurred in the making of said executive agreement. The concurrence
of said House of Congress is required by our fundamental law in the making of "treaties"
(Constitution of the Philippines, Article VII, Section 10[7]), which are, however, distinct
and different from "executive agreements," which may be validly entered into without
such concurrence.
Treaties are formal documents which require ratification with the approval of two thirds
of the Senate. Executive agreements become binding through executive action without
the need of a vote by the Senate or by Congress.
xxx xxx xxx
. . . the right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the
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earliest days of our history we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements and
the settlement of claims. The validity of these has never been seriously questioned by
our courts.
xxx xxx xxx
Agreements with respect to the registration of trade-marks have been concluded by
the Executive with various countries under the Act of Congress of March 3, 1881 (21
Stat. 502). Postal conventions regulating the reciprocal treatment of mail matters,
money orders, parcel post, etc., have been concluded by the Postmaster General with
various countries under authorization by Congress beginning with the Act of February
20, 1792 (1 Stat. 232, 239). Ten executive agreements were concluded by the
President pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine
such agreements were entered into under the Dingley Tariff Act 1897 (30 Stat. 151,
203, 214). A very much larger number of agreements, along the lines of the one with
Rumania previously referred to, providing for most-favored-nation treatment in customs
and related matters have been entered into since the passage of the Tariff Act of 1922,
not by direction of the Act but in harmony with it.
xxx xxx xxx
International agreements involving political issues or changes of national policy and
those involving international arrangements of a permanent character usually take the
form of treaties. But international agreements embodying adjustments of detail carrying
out well-established national policies and traditions and those involving arrangements
of a more or less temporary nature usually take the form of executive agreements.
xxx xxx xxx
Furthermore, the United States Supreme Court has expressly recognized the validity
and constitutionality of executive agreements entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis-Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed.
1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d. 288; Yale
Law Journal, Vol. 15, pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675;
Hyde on International Law [Revised Edition], Vol. 2, pp. 1405, 1416-1418; Willoughby
on the U.S. Constitutional Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law
Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407).
(Emphasis supplied.)
In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines,
said in his work on "The Constitutionality of Trade Agreement Acts":
Agreements concluded by the President which fall short of treaties are commonly
referred to as executive agreements and are no less common in our scheme of
government than are the more formal instruments — treaties and conventions. They
sometimes take the form of exchanges of notes and at other times that of more formal
documents denominated "agreements" time or "protocols". The point where ordinary
correspondence between this and other governments ends and agreements —
whether denominated executive agreements or exchanges of notes or otherwise —
begin, may sometimes be difficult of ready ascertainment. It would be useless to
undertake to discuss here the large variety of executive agreements as such,
concluded from time to time. Hundreds of executive agreements, other than those
entered into under the trade-agreements act, have been negotiated with foreign
governments. . . . It would seem to be sufficient, in order to show that the trade
agreements under the act of 1934 are not anomalous in character, that they are not
treaties, and that they have abundant precedent in our history, to refer to certain
classes of agreements heretofore entered into by the Executive without the approval
of the Senate. They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil aircraft, customs matters, and
commercial relations generally, international claims, postal matters, the registration of
trademarks and copyrights, etcetera. Some of them were concluded not by specific
congressional authorization but in conformity with policies declared in acts of Congress
with respect to the general subject matter, such as tariff acts; while still others,
particularly those with respect of the settlement of claims against foreign governments,
were concluded independently of any legislation." (39 Columbia Law Review, pp. 651,
755.)
The validity of the executive agreement in question is thus patent. In fact, the so-called
Parity Rights provided for in the Ordinance Appended to our Constitution were, prior
thereto, the subject of an executive agreement, madewithout the concurrence of two-
thirds (2/3) of the Senate of the United States.
Lastly, the lower court held that it would be unreasonable to require from respondent-
appellee an import license when the Import Control Commission was no longer in
existence and, hence, there was, said court believed, no agency authorized to issue
the aforementioned license. This conclusion is untenable, for the authority to issue the
aforementioned licenses was not vested exclusively upon the Import Control
Commission or Administration. Executive Order No. 328 provided for export or import
licenses "from the Central Bank of the Philippines or the Import Control Administration"
or Commission. Indeed, the latter was created only to perform the task of implementing
certain objectives of the Monetary Board and the Central Bank, which otherwise had to
be undertaken by these two (2) agencies. Upon the abolition of said Commission, the
duty to provide means and ways for the accomplishment of said objectives had merely
to be discharged directly by the Monetary Board and the Central Bank, even if the
aforementioned Executive Order had been silent thereon.
154
WHEREFORE, the decision appealed from is hereby reversed and another one shall
be entered affirming that of the Commissioner of Customs, with cost against
respondents defendant-appellee, Eastern Sea Trading. It is so ordered.

155