The suspension of the privilege of the writ shall apply only to persons xxx
judicially charged for rebellion or offenses inherent in or directly
connected with invasion. FR. BERNAS. Let me just add that when we only have imminent
danger, the matter can be handled by the first sentence: “The
During the suspension of the privilege of the writ, any person thus President may call out such armed forces to prevent or suppress
arrested or detained shall be judicially charged within three days, lawless violence, invasion or rebellion.” So we feel that that is
otherwise he shall be released. sufficient for handling imminent danger.
Under the foregoing provisions, Congress may revoke such MR. DE LOS REYES. So actually, if a President feels that there is
proclamation or suspension and the Court may review the sufficiency imminent danger, the matter can be handled by the First Sentence:
of the factual basis thereof. However, there is no such equivalent “The President....may call out such Armed Forces to prevent or
provision dealing with the revocation or review of the President’s suppress lawless violence, invasion or rebellion.” So we feel that that
action to call out the armed forces. The distinction places the calling is sufficient for handling imminent danger, of invasion or rebellion,
out power in a different category from the power to declare martial instead of imposing martial law or suspending the writ of habeas
law and the power to suspend the privilege of the writ of habeas corpus, he must necessarily have to call the Armed Forces of the
corpus, otherwise, the framers of the Constitution would have simply Philippines as their Commander-in-Chief. Is that the idea?
lumped together the three powers and provided for their revocation
and review without any qualification. Expressio unius est exclusio MR. REGALADO. That does not require any concurrence by the
alterius. Where the terms are expressly limited to certain matters, it legislature nor is it subject to judicial review.[34]
may not, by interpretation or construction, be extended to other
The reason for the difference in the treatment of the be imperatively necessary in emergency situations to avert great loss
aforementioned powers highlights the intent to grant the President of human lives and mass destruction of property. Indeed, the
the widest leeway and broadest discretion in using the power to call decision to call out the military to prevent or suppress lawless
out because it is considered as the lesser and more benign power violence must be done swiftly and decisively if it were to have any
compared to the power to suspend the privilege of the writ of habeas effect at all. Such a scenario is not farfetched when we consider the
corpus and the power to impose martial law, both of which involve present situation in Mindanao, where the insurgency problem could
the curtailment and suppression of certain basic civil rights and spill over the other parts of the country. The determination of the
individual freedoms, and thus necessitating safeguards by Congress necessity for the calling out power if subjected to unfettered judicial
and review by this Court. scrutiny could be a veritable prescription for disaster, as such power
may be unduly straitjacketed by an injunction or a temporary
Moreover, under Section 18, Article VII of the Constitution, in restraining order every time it is exercised.
the exercise of the power to suspend the privilege of the writ
of habeas corpusor to impose martial law, two conditions must Thus, it is the unclouded intent of the Constitution to vest upon
concur: (1) there must be an actual invasion or rebellion and, (2) the President, as Commander-in-Chief of the Armed Forces, full
public safety must require it. These conditions are not required in the discretion to call forth the military when in his judgment it is
case of the power to call out the armed forces. The only criterion is necessary to do so in order to prevent or suppress lawless violence,
that “whenever it becomes necessary,” the President may call the invasion or rebellion. Unless the petitioner can show that the
armed forces “to prevent or suppress lawless violence, invasion or exercise of such discretion was gravely abused, the President’s
rebellion." The implication is that the President is given full discretion exercise of judgment deserves to be accorded respect from this
and wide latitude in the exercise of the power to call as compared to Court.
the two other powers.
The President has already determined the necessity and factual
If the petitioner fails, by way of proof, to support the assertion basis for calling the armed forces. In his Memorandum, he
that the President acted without factual basis, then this Court cannot categorically asserted that, “[V]iolent crimes like bank/store
undertake an independent investigation beyond the pleadings. The robberies, holdups, kidnappings and carnappings continue to occur
factual necessity of calling out the armed forces is not easily in Metro Manila...”[35] We do not doubt the veracity of the President’s
quantifiable and cannot be objectively established since matters assessment of the situation, especially in the light of present
considered for satisfying the same is a combination of several factors developments. The Court takes judicial notice of the recent
which are not always accessible to the courts. Besides the absence bombings perpetrated by lawless elements in the shopping malls,
of textual standards that the court may use to judge necessity, public utilities, and other public places. These are among the areas
information necessary to arrive at such judgment might also prove of deployment described in the LOI 2000. Considering all these
unmanageable for the courts. Certain pertinent information might be facts, we hold that the President has sufficient factual basis to call for
difficult to verify, or wholly unavailable to the courts. In many military aid in law enforcement and in the exercise of this
instances, the evidence upon which the President might decide that constitutional power.
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 The deployment of the Marines does not violate the civilian
vast intelligence network to gather information, some of which may supremacy clause nor does it infringe the civilian character of
be classified as highly confidential or affecting the security of the the police force.
state. In the exercise of the power to call, on-the-spot decisions may
Prescinding from its argument that no emergency situation Considering the above circumstances, the Marines render
exists to justify the calling of the Marines, the IBP asserts that by the nothing more than assistance required in conducting the patrols. As
deployment of the Marines, the civilian task of law enforcement is such, there can be no “insidious incursion” of the military in civilian
“militarized” in violation of Section 3, Article II[36] of the Constitution. affairs nor can there be a violation of the civilian supremacy clause in
the Constitution.
We disagree. The deployment of the Marines does not
constitute a breach of the civilian supremacy clause. The calling of It is worth mentioning that military assistance to civilian
the Marines in this case constitutes permissible use of military assets authorities in various forms persists in Philippine jurisdiction. The
for civilian law enforcement. The participation of the Marines in the Philippine experience reveals that it is not averse to requesting the
conduct of joint visibility patrols is appropriately circumscribed. The assistance of the military in the implementation and execution of
limited participation of the Marines is evident in the provisions of the certain traditionally “civil” functions. As correctly pointed out by the
LOI itself, which sufficiently provides the metes and bounds of the Solicitor General, some of the multifarious activities wherein military
Marines’ authority. It is noteworthy that the local police forces are aid has been rendered, exemplifying the activities that bring both the
the ones in charge of the visibility patrols at all times, the real civilian and the military together in a relationship of cooperation, are:
authority belonging to the PNP. In fact, the Metro Manila Police
Chief is the overall leader of the PNP-Philippine Marines joint 1. Elections;[42]
visibility patrols.[37] Under the LOI, the police forces are tasked to 2. Administration of the Philippine National Red Cross;[43]
brief or orient the soldiers on police patrol procedures.[38] It is their
responsibility to direct and manage the deployment of the Marines. 3. Relief and rescue operations during calamities and
[39]
It is, likewise, their duty to provide the necessary equipment to the disasters;[44]
Marines and render logistical support to these soldiers.[40] In view of
4. Amateur sports promotion and development;[45]
the foregoing, it cannot be properly argued that military authority is
supreme over civilian authority. Moreover, the deployment of the 5. Development of the culture and the arts;[46]
Marines to assist the PNP does not unmake the civilian character of
the police force. Neither does it amount to an “insidious incursion” of 6. Conservation of natural resources;[47]
the military in the task of law enforcement in violation of Section 5(4), 7. Implementation of the agrarian reform program;[48]
Article XVI of the Constitution.[41]
8. Enforcement of customs laws;[49]
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 9. Composite civilian-military law enforcement activities;[50]
enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these 10. Conduct of licensure examinations;[51]
operations, as stated in the LOI, is lodged with the head of a civilian 11. Conduct of nationwide tests for elementary and high
institution, the PNP, and not with the military. Such being the case, it school students;[52]
does not matter whether the AFP Chief actually participates in the
Task Force Tulungan since he does not exercise any authority or 12. Anti-drug enforcement activities;[53]
control over the same. Since none of the Marines was incorporated
13. Sanitary inspections;[54]
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 14. Conduct of census work;[55]
the joint visibility patrols does not destroy the civilian character of the
PNP. 15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting four divergent standards for assessing acceptable involvement of
devices;[57] military personnel in civil law enforcement. See likewise HONORED
IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE
17. Peace and order policy formulation in local government THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-
units.[58] 152, 1973. 64 in nature, either presently or prospectively?
This unquestionably constitutes a gloss on executive power
resulting from a systematic, unbroken, executive practice, long x x x
pursued to the knowledge of Congress and, yet, never before
questioned.[59] What we have here is mutual support and cooperation When this concept is transplanted into the present legal context, we
between the military and civilian authorities, not derogation of civilian take it to mean that military involvement, even when not expressly
supremacy. authorized by the Constitution or a statute, does not violate the
Posse Comitatus Act unless it actually regulates, forbids or compels
In the United States, where a long tradition of suspicion and
some conduct on the part of those claiming relief. A mere threat of
hostility towards the use of military force for domestic purposes has
some future injury would be insufficient. (emphasis supplied)
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 Even if the Court were to apply the above rigid standards to the
those surrounding the present deployment of the Philippine present case to determine whether there is permissible use of the
Marines. Under thePosse Comitatus Act[61] of the US, the use of the military in civilian law enforcement, the conclusion is inevitable that
military in civilian law enforcement is generally prohibited, except in no violation of the civilian supremacy clause in the Constitution is
certain allowable circumstances. A provision of the Act states: committed. On this point, the Court agrees with the observation of
the Solicitor General:
§ 1385. Use of Army and Air Force as posse comitatus
3. The designation of tasks in Annex A[65] does not constitute the
exercise of regulatory, proscriptive, or compulsory military
Whoever, except in cases and under circumstances expressly
power. First, the soldiers do not control or direct the operation.
authorized by the Constitution or Act of Congress, willfully uses any
This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex
part of the Army or the Air Force as posse comitatus or otherwise to
A. These soldiers, second, also have no power to prohibit or
execute the laws shall be fined not more than $10,000 or imprisoned
condemn. In No. 9(d)[69] of Annex A, all arrested persons are
not more than two years, or both.[62]
brought to the nearest police stations for proper
disposition. And last, these soldiers apply no coercive
To determine whether there is a violation of the Posse force. The materials or equipment issued to them, as shown in
Comitatus Act in the use of military personnel, the US courts[63] apply No. 8(c)[70] of Annex A, are all low impact and defensive in
the following standards, to wit: character. The conclusion is that there being no exercise of
regulatory, proscriptive or compulsory military power, the
Were Army or Air Force personnel used by the civilian law deployment of a handful of Philippine Marines constitutes no
enforcement officers at Wounded Knee in such a manner that the impermissible use of military power for civilian law enforcement.
military personnel subjected the citizens to the exercise of military [71]
The Court declared that the power to suspend the privilege In 1983, the Lansang ruling was weakened by the Court
of the writ of habeas corpus is neither absolute nor unqualified in Garcia-Padilla v. Enrile.49 The petitioners therein were arrested
because the Constitution sets limits on the exercise of and detained by the Philippine Constabulary by virtue of a
executive discretion on the matter. These limits are: (1) that the Presidential Commitment Order (PCO). Petitioners sought the
privilege must not be suspended except only in cases of invasion, issuance of a writ of habeas corpus. The Court found that the PCO
insurrection or rebellion or imminent danger thereof; and (2) when had the function of validating a person's detention for any of the
the public safety requires it, in any of which events the same may be offenses covered in Proclamation No. 2045 which continued in force
suspended wherever during such period the necessity for the the suspension of the privilege of the writ of habeas corpus. It held
suspension shall exist. The extent of the power which may be that the issuance of the PCO by the President was not subject to
inquired into by courts is defined by these limitations.43 judicial inquiry.50 It went further by declaring that there was a need to
re-examine Lansang with a view to reverting to Barcelon and
On the vital issue of how the Court may inquire into the Montenegro. It observed that in times of war or national emergency,
President's exercise of power, it ruled that the function of the Court is the President must be given absolute control for the very life of the
not to supplant but merely to check the Executive; to ascertain nation and government is in great peril. The President, it intoned, is
whether the President has gone beyond the constitutional limits of answerable only to his conscience, the people, and God.51
his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. Judicial inquiry is confined to the But barely six (6) days after Garcia-Padilla, the Court
question of whether the President did not act arbitrarily. 44 Using this promulgated Morales, Jr. v. Enrile52 reiterating Lansang. It held
yardstick, the Court found that the President did not. that by the power of judicial review, the Court must inquire into every
phase and aspect of a person's detention from the moment he was
The emergency period of the 1970's flooded the Court with taken into custody up to the moment the court passes upon the
cases which raised the political question defense. The issue divided merits of the petition. Only after such a scrutiny can the court satisfy
the Court down the middle. Javellana v. Executive itself that the due process clause of the Constitution has been met.53
Secretary45 showed that while a majority of the Court held that the
issue of whether or not the 1973 Constitution had been ratified in It is now history that the improper reliance by the Court on
accordance with the 1935 Constitution was justiciable, a majority the political question doctrine eroded the people's faith in its
also ruled that the decisive issue of whether the 1973 Constitution capacity to check abuses committed by the then Executive in
the exercise of his commander-in-chief powers, particularly
violations against human rights. The refusal of courts to be
pro-active in the exercise of its checking power drove the the writ of habeas corpus or place the Philippines or any part
people to the streets to resort to extralegal remedies. They gave thereof under martial law. Within forty-eight hours from the
birth to EDSA. proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person
Two lessons were not lost to the members of the Constitutional or in writing to Congress. The Congress, voting jointly, by a vote of
Commission that drafted the 1987 Constitution. The first was the at least a majority of all its Members in regular or special session,
need to grant this Court the express power to review the exercise of may revoke such proclamation or suspension, which revocation shall
the powers as commander-in-chief by the President and deny it of not be set aside by the President. Upon the initiative of the
any discretion to decline its exercise. The second was the need President, the Congress may, in the same manner, extend such
to compel the Court to be pro-active by expanding its jurisdiction proclamation or suspension for a period to be determined by
and, thus, reject its laid back stance against acts constituting grave Congress, if the invasion or rebellion shall persist and public safety
abuse of discretion on the part of any branch or instrumentality of requires it.
government. Then Chief Justice Roberto Concepcion, a member of
the Constitutional Commission, worked for the insertion of the
second paragraph of Section 1, Article VIII in the draft The Congress, if not in session, shall, within twenty-four hours
Constitution,54 which reads: following such proclamation or suspension, convene in accordance
with its rules without need of a call.
"Sec. 1. x x x.
The Supreme Court may review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual basis of the
Judicial power includes the duty of the courts of justice to settle proclamation of martial law or the suspension of the privilege of
actual controversies involving rights which are legally demandable the writ or the extension thereof, and must promulgate its
and enforceable, and to determine whether or not there has been decision thereon within thirty days from its filing.
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government." x x x."
The language of the provision clearly gives the Court the power to It is clear from the foregoing that the President, as Commander-
strike down acts amounting to grave abuse of discretion of both the in-Chief of the armed forces of the Philippines, may call out the
legislative and executive branches of government. armed forces subject to two conditions: (1) whenever it
becomes necessary; and (2) to prevent or suppress lawless
We should interpret Section 18, Article VII of the 1987 violence, invasion or rebellion. Undeniably, these conditions
Constitution in light of our constitutional history. The provision lay down the sine qua requirement for the exercise of the power
states: and the objective sought to be attained by the exercise of the
power. They define the constitutional parameters of the calling
"Sec. 18. The President shall be the Commander-in-Chief of all out power. Whether or not there is compliance with these
armed forces of the Philippines and whenever it becomes parameters is a justiciable issue and is not a political question.
necessary, he may call out such armed forces to prevent or I am not unaware that in the deliberations of the Constitutional
suppress lawless violence, invasion or rebellion. In case of Commission, Commissioner Bernas opined that the President's
invasion or rebellion, when the public safety requires it, he may, exercise of the "calling out power," unlike the suspension of the
for a period not exceeding sixty days, suspend the privilege of privilege of the writ of habeas corpus and the declaration of martial
law, is not a justiciable issue but a political question and therefore cannot be reviewed on the ground that they have lesser impact on
not subject to judicial review. the civil and political rights of our people. The exercise of the calling
out power may be "benign" in the case at bar but may not be so in
It must be borne in mind, however, that while a member's future cases.
opinion expressed on the floor of the Constitutional Convention is
valuable, it is not necessarily expressive of the people's intent.55 The The counsel of Mr. Chief Justice Enrique M. Fernando, in his
proceedings of the Convention are less conclusive on the proper Dissenting and Concurring Opinion in Lansang that it would be
construction of the fundamental law than are legislative proceedings dangerous and misleading to push the political question doctrine too
of the proper construction of a statute, for in the latter case it is the far, is apropos. It will not be complementary to the Court if it
intent of the legislature the courts seek, while in the former, courts handcuffs itself to helplessness when a grievously injured citizen
seek to arrive at the intent of the people through the discussions and seeks relief from a palpably unwarranted use of presidential or
deliberations of their representatives.56 The conventional wisdom is military power, especially when the question at issue falls in the
that the Constitution does not derive its force from the convention penumbra between the "political" and the "justiciable. "58
which framed it, but from the people who ratified it, the intent to be
arrived at is that of the people.57 We should not water down the ruling that deciding whether a
matter has been committed by the Constitution to another branch of
It is true that the third paragraph of Section 18, Article VII of government, or whether the action of that branch exceeds whatever
the 1987 Constitution expressly gives the Court the power to authority has been committed, is a delicate exercise in constitutional
review the sufficiency of the factual bases used by the interpretation, and is a responsibility of the Court as ultimate
President in the suspension of the privilege of the writ of interpreter of the fundamental law.59 When private justiciable rights
habeas corpus and the declaration of martial law. It does not are involved in a suit, the Court must not refuse to assume
follow, however, that just because the same provision did not jurisdiction even though questions of extreme political importance
grant to this Court the power to review the exercise of the are necessarily involved.60Every officer under a constitutional
calling out power by the President, ergo, this Court cannot pass government must act according to law and subject to the controlling
upon the validity of its exercise. power of the people, acting through the courts, as well as through
the executive and legislative. One department is just as
Given the light of our constitutional history, this express representative of the other, and the judiciary is the department which
grant of power merely means that the Court cannot decline the is charged with the special duty of determining the limitations which
exercise of its power because of the political question doctrine the law places upon all official action.61 This historic role of the
as it did in the past. In fine, the express grant simply stresses Court is the foundation stone of a government of laws and not of
the mandatory duty of this Court to check the exercise of the men.62
commander-in-chief powers of the President. It eliminated the
discretion of the Court not to wield its power of review thru the I join the Decision in its result.
use of the political question doctrine.
It may be conceded that the calling out power may be a "lesser
power" compared to the power to suspend the privilege of the writ of SEPARATE OPINION
habeas corpus and the power to declare martial law. Even then, its
exercise cannot be left to the absolute discretion of the Chief
Executive as Commander-in-Chief of the armed forces, as its impact VITUG, J.:
on the rights of our people protected by the Constitution cannot be
downgraded. We cannot hold that acts of the commander-in-chief
In the equation of judicial power, neither of two extremes - one or despotic exercise of judgment amounting to lack or excess of
totalistic and the other bounded - is acceptable nor ideal. The 1987 jurisdiction. Minus the not-so-unusual exaggerations often invoked
Constitution has introduced its definition of the term "judicial power" by litigants in the duel of views, the act of the President in simply
to be that which - calling on the Armed Forces of the Philippines, an executive
prerogative, to assist the Philippine National Police in "joint
“x x x includes the duty of the courts of justice to settle actual visibility patrols" in the metropolis does not, I believe, constitute
controversies involving rights which are legally demandable and grave abuse of discretion that would now warrant an exercise by the
enforceable, and to determine whether or not there has been Supreme Court of its extraordinary power as so envisioned by the
grave abuse of discretion amounting to lack or excess of fundamental law.
jurisdiction on the part of any branch or instrumentality of the Accordingly, I vote for the dismissal of the petition.
Government.”1
It is not meant that the Supreme Court must be deemed vested with MENDOZA, J., concurring and dissenting:
the awesome power of overseeing the entire bureaucracy, let alone
of institutionalizing judicial absolutism, under its mandate. But while I concur in the opinion of the Court insofar as it holds petitioner
this Court does not wield unlimited authority to strike down an act of to be without standing to question the validity of LOI 02/2000 which
its two co-equal branches of government, it must not wither under mandates the Philippine Marines to conduct "joint visibility" patrols
technical guise on its constitutionally ordained task to intervene, and with the police in Metro Manila. But I dissent insofar as the opinion
to nullify if need be, any such act as and when it is attended dismisses the petition in this case on other grounds. I submit that
by grave abuse of discretion amounting to lack or excess of judgment on the substantive constitutional issues raised by petitioner
jurisdiction. The proscription then against an interposition by the must await an actual case involving real parties with "injuries" to
Court into purely political questions, heretofore known, no longer show as a result of the operation of the challenged executive
holds within that context. action. While as an organization for the advancement of the rule of
Justice Feria, in the case of Avelino vs. Cuenco, 2 has aptly law petitioner has an interest in upholding the Constitution, its
elucidated in his concurring opinion: interest is indistinguishable from the interest of the rest of the
citizenry and falls short of that which is necessary to give petitioner
standing.
"x x x [I] concur with the majority that this Court has jurisdiction over
cases like the present x x x so as to establish in this country the As I have indicated elsewhere, a citizens' suit challenging the
judicial supremacy, with the Supreme Court as the final arbiter, to constitutionality of governmental action requires that (1) the
see that no one branch or agency of the government transcends the petitioner must have suffered an "injury in fact" of an actual or
Constitution, not only in justiceable but political questions as well."3 imminent nature; (2) there must be a causal connection between the
injury and the conduct complained of; and (3) the injury is likely to be
It is here when the Court must have to depart from the broad redressed by a favorable action by this Court.1 The "injury in fact"
principle of separation of powers that disallows an intrusion by it in test requires more than injury to a cognizable interest. It requires
respect to the purely political decisions of its independent and that the party seeking review be himself among those injured.2
coordinate agencies of government.
My insistence on compliance with the standing requirement is
The term grave abuse of discretion is long understood in our grounded in the conviction that only a party injured by the operation
jurisprudence as being, and confined to, a capricious and whimsical of the governmental action challenged is in the best position to aid
the Court in determining the precise nature of the problem lawless elements, the deployment of troops in shopping centers and
presented. Many a time we have adverted to the power of judicial public utilities is justified. (p. 24)
review as an awesome power not to be exercised save in the most
exigent situation. For, indeed, sound judgment on momentous We are likely to err in dismissing the suit brought in this case on
constitutional questions is not likely to be reached unless it is the the ground that the calling out of the military does not violate the
result of a clash of adversary arguments which only parties with Constitution, just as we are likely to do so if we grant the petition and
direct and specific interest in the outcome of the controversy can invalidate the executive issuance in question. For indeed, the lack of
make. This is true not only when we strike down a law or official a real, earnest and vital controversy can only impoverish the judicial
action but also when we uphold it. process. That is why, as Justice Laurel emphasized in
the Angara case, "this power of judicial review is limited to actual
In this case, because of the absence of parties with real and cases and controversies to be exercised after full opportunity of
substantial interest to protect, we do not have evidence on the effect argument by the parties, and limited further to the constitutional
of military presence in malls and commercial centers, i.e., whether question raised or the very lis mota presented."6
such presence is coercive or benign. We do not know whether the
presence of so many marines and policemen scares shoppers, We are told, however, that the issues raised in this case are of
tourists, and peaceful civilians, or whether it is reassuring to "paramount interest" to the nation. It is precisely because the issues
them. To be sure, the deployment of troops to such places is not like raised are of paramount importance that we should all the more
parading them at the Luneta on Independence Day. Neither is it, forego ruling on the constitutional issues raised by petitioner and limit
however, like calling them out because of actual fighting or the the dismissal of this petition on the ground of lack of standing of
outbreak of violence. petitioner. A Fabian policy of leaving well enough alone is a counsel
of prudence.
We need to have evidence on these questions because, under
the Constitution, the President's power to call out the armed forces in For these reasons and with due appreciation of the scholarly
order to suppress lawless violence, invasion or rebellion is subject to attention lavished by the majority opinion on the constitutional
the limitation that the exercise of this power is required in the interest questions raised, I am constrained to limit my concurrence to the
of public safety.3 dismissal of this suit on the ground of lack of standing of petitioner
and the consequent lack of an actual case or controversy.
Indeed, whether it is the calling out of the armed forces alone in
order to suppress lawless violence, invasion or rebellion or also the
suspension of the privilege of the writ of habeas corpus or the
proclamation of martial law (in case of invasion or rebellion), the
exercise of the President's powers as commander-in-chief, requires
proof - not mere assertion.4 As has been pointed out, "Standing is
not `an ingenious academic exercise in the conceivable' . . . but
requires . . . a factual showing of perceptible harm."5
Because of the absence of such record evidence, we are left to
guess or even speculate on these questions. Thus, at one point, the
majority opinion says that what is involved here is not even the
calling out of the armed forces but only the use of marines for law
enforcement. (p. 13) At another point, however, the majority opinion
somersaults and says that because of bombings perpetrated by
Republic of the Philippines
SUPREME COURT EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
Manila EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE
R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB.
G.R. No. 171396 May 3, 2006 CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-
CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA,
RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-
BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F.
REGALADO BAGARES, CHRISTOPHER F.C. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF
BOLASTIG, Petitioners, CONCERNED CITIZENS FOR CIVIL LIBERTIES
vs. REPRESENTED BY AMADO GAT INCIONG, Petitioners,
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND vs.
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO R. ERMITA, EXECUTIVE SECRETARY,
EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V.
OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP
CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PNP, Respondents.
PHILIPPINE NATIONAL POLICE, Respondents.
x-------------------------------------x
x-------------------------------------x
G.R. No. 171483 May 3, 2006
G.R. No. 171409 May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CHAIRPERSON ELMER C. LABOG AND SECRETARY
CO., INC., Petitioners, GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION
vs. OF LABOR UNIONS – KILUSANG MAYO UNO (NAFLU-
HONORABLE SECRETARY EDUARDO ERMITA AND KMU), REPRESENTED BY ITS NATIONAL PRESIDENT,
HONORABLE DIRECTOR GENERAL ARTURO C. JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
LOMIBAO, Respondents. SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
x-------------------------------------x
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-
ARROYO, THE HONORABLE EXECUTIVE SECRETARY,
G.R. No. 171485 May 3, 2006 EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, THE PNP DIRECTOR GENERAL, ARTURO
TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J. LOMIBAO, Respondents.
AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN
x-------------------------------------x SECRETARY, Respondents.
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, Chief Justice Artemio V. Panganiban’s philosophy of liberty is
ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA thus most relevant. He said: "In cases involving liberty, the
A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. scales of justice should weigh heavily against
LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. government and in favor of the poor, the oppressed, the
DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR marginalized, the dispossessed and the weak." Laws and
OF THE PHILIPPINES (IBP), Petitioners, actions that restrict fundamental rights come to the courts
vs. "with a heavy presumption against their constitutional
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, validity."2
GENERAL GENEROSO SENGA, IN HIS CAPACITY AS AFP
CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO These seven (7) consolidated petitions for certiorari and
LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents. prohibition allege that in issuing Presidential Proclamation No.
1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
x-------------------------------------x President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the
G.R. No. 171424 May 3, 2006 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,
LOREN B. LEGARDA, Petitioner,
such issuances are void for being unconstitutional.
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS
PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO Once again, the Court is faced with an age-old but persistently
LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF modern problem. How does the Constitution of a free people
THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO combine the degree of liberty, without which, law becomes
SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE tyranny, with the degree of law, without which, liberty
ARMED FORCES OF THE PHILIPPINES (AFP); AND becomes license?3
EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
On February 24, 2006, as the nation celebrated the 20th media;
Anniversary of the Edsa People Power I, President Arroyo
issued PP 1017 declaring a state of national emergency, thus: WHEREAS, this series of actions is hurting the Philippine
State – by obstructing governance including hindering the
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of growth of the economy and sabotaging the people’s
the Republic of the Philippines and Commander-in-Chief of the confidence in government and their faith in the future of
Armed Forces of the Philippines, by virtue of the powers this country;
vested upon me by Section 18, Article 7 of the Philippine
Constitution which states that: "The President. . . whenever it WHEREAS, these actions are adversely affecting the
becomes necessary, . . . may call out (the) armed forces to economy;
prevent or suppress. . .rebellion. . .," and in my capacity as
their Commander-in-Chief, do hereby command the Armed WHEREAS, these activities give totalitarian forces of both
Forces of the Philippines, to maintain law and order the extreme Left and extreme Right the opening to
throughout the Philippines, prevent or suppress all forms intensify their avowed aims to bring down the democratic
of lawless violence as well as any act of insurrection or Philippine State;
rebellion and to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me
personally or upon my direction; andas provided in WHEREAS, Article 2, Section 4 of the our Constitution makes
Section 17, Article 12 of the Constitution do hereby the defense and preservation of the democratic institutions
declare a State of National Emergency. and the State the primary duty of Government;
She cited the following facts as bases: WHEREAS, the activities above-described, their
consequences, ramifications and collateral effects constitute
a clear and present dangerto the safety and the integrity of
WHEREAS, over these past months, elements in the political the Philippine State and of the Filipino people;
opposition have conspired with authoritarians of the
extreme Left represented by the NDF-CPP-NPA and the
extreme Right, represented by military adventurists – the On the same day, the President issued G. O. No. 5
historical enemies of the democratic Philippine State – implementing PP 1017, thus:
who are now in a tactical alliance and engaged in a concerted
and systematic conspiracy, over a broad front, to bring down WHEREAS, over these past months, elements in the political
the duly constituted Government elected in May 2004; opposition have conspired with authoritarians of the extreme
Left, represented by the NDF-CPP-NPA and the extreme
WHEREAS, these conspirators have repeatedly tried to bring Right, represented by military adventurists - the historical
down the President; enemies of the democratic Philippine State – and who are now
in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the
WHEREAS, the claims of these elements have been
duly-constituted Government elected in May 2004;
recklessly magnified by certain segments of the national
WHEREAS, these conspirators have repeatedly tried to bring call upon the Armed Forces of the Philippines (AFP) and the
down our republican government; Philippine National Police (PNP), to prevent and suppress acts
of terrorism and lawless violence in the country;
WHEREAS, the claims of these elements have been
recklessly magnified by certain segments of the national I hereby direct the Chief of Staff of the AFP and the Chief of
media; the PNP, as well as the officers and men of the AFP and
PNP, to immediately carry out the necessary and
WHEREAS, these series of actions is hurting the Philippine appropriate actions and measures to suppress and
State by obstructing governance, including hindering the prevent acts of terrorism and lawless violence.
growth of the economy and sabotaging the people’s
confidence in the government and their faith in the future of On March 3, 2006, exactly one week after the declaration of a
this country; state of national emergency and after all these petitions had
been filed, the President lifted PP 1017. She issued
WHEREAS, these actions are adversely affecting the Proclamation No. 1021 which reads:
economy;
WHEREAS, pursuant to Section 18, Article VII and Section 17,
WHEREAS, these activities give totalitarian forces; of both the Article XII of the Constitution, Proclamation No. 1017 dated
extreme Left and extreme Right the opening to intensify their February 24, 2006, was issued declaring a state of national
avowed aims to bring down the democratic Philippine State; emergency;
WHEREAS, Article 2, Section 4 of our Constitution makes the WHEREAS, by virtue of General Order No.5 and No.6 dated
defense and preservation of the democratic institutions and February 24, 2006, which were issued on the basis of
the State the primary duty of Government; 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
WHEREAS, the activities above-described, their
and suppress all form of lawless violence as well as any act of
consequences, ramifications and collateral effects constitute a
rebellion and to undertake such action as may be necessary;
clear and present danger to the safety and the integrity of the
Philippine State and of the Filipino people;
WHEREAS, the AFP and PNP have effectively prevented,
suppressed and quelled the acts lawless violence and
WHEREAS, Proclamation 1017 date February 24, 2006 has
rebellion;
been issued declaring a State of National Emergency;
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda 1) Whetherthe Supreme Court can review the factual
maintained that PP 1017 and G.O. No. 5 are "unconstitutional bases of PP 1017.
for being violative of the freedom of expression, including its
cognate rights such as freedom of the press and the right to 2) Whether PP 1017 and G.O. No. 5 are
access to information on matters of public concern, all unconstitutional.
guaranteed under Article III, Section 4 of the 1987
Constitution." In this regard, she stated that these issuances a. Facial Challenge
prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.
b. Constitutional Basis
In respondents’ Consolidated Comment, the Solicitor General
countered that: first, the petitions should be dismissed for c. As Applied Challenge
being moot;second,petitioners in G.R. Nos. 171400 (ALGI),
171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et A. PROCEDURAL
al.) and 171489 (Cadiz et al.) have no legal standing; third, it is
not necessary for petitioners to implead President Arroyo as First, we must resolve the procedural roadblocks.
respondent; fourth, PP 1017 has constitutional and legal basis;
and fifth, PP 1017 does not violate the people’s right to free I- Moot and Academic Principle
expression and redress of grievances.
One of the greatest contributions of the American system to
On March 7, 2006, the Court conducted oral arguments and this country is the concept of judicial review enunciated
heard the parties on the above interlocking issues which may in Marbury v. Madison.21 This concept rests on the
be summarized as follows: extraordinary simple foundation --
In Sanlakas v. Executive Secretary,59 the Court ruled that only In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O.
the petitioners who are members of Congress have standing No. 5 violated its right to peaceful assembly may be deemed
to sue, as they claim that the President’s declaration of a state sufficient to give it legal standing. Organizations may be
of rebellion is a usurpation of the emergency powers of granted standing to assert the rights of their
Congress, thus impairing their legislative powers. As to members.65 We take judicial notice of the announcement by
petitioners Sanlakas, Partido Manggagawa, and Social Justice the Office of the President banning all rallies and canceling all
Society, the Court declared them to be devoid of standing, permits for public assemblies following the issuance of PP
equating them with the LDP in Lacson. 1017 and G.O. No. 5.
Now, the application of the above principles to the present In G.R. No. 171489, petitioners, Cadiz et al., who are national
petitions. officers of the Integrated Bar of the Philippines (IBP) have no
legal standing, having failed to allege any direct or potential
The locus standi of petitioners in G.R. No. 171396, particularly injury which the IBP as an institution or its members may
David and Llamas, is beyond doubt. The same holds true with suffer as a consequence of the issuance of PP No. 1017 and
petitioners inG.R. No. 171409, Cacho-Olivares G.O. No. 5. In Integrated Bar of the Philippines v.
and Tribune Publishing Co. Inc. They alleged "direct injury" Zamora,66 the Court held that the mere invocation by the IBP
resulting from "illegal arrest" and "unlawful search" committed of its duty to preserve the rule of law and nothing more, while
by police operatives pursuant to PP 1017. Rightly so, the undoubtedly true, is not sufficient to clothe it with standing in
Solicitor General does not question their legal standing. 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
In G.R. No. 171485, the opposition Congressmen alleged
that petitioner have locus standi.
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 In G.R. No. 171424, Loren Legarda has no personality as a
Law are used. Moreover, it is in the interest of justice that taxpayer to file the instant petition as there are no allegations
those affected by PP 1017 can be represented by their of illegal disbursement of public funds. The fact that she is a
former Senator is of no consequence. She can no longer sue attend to the performance of his official duties and functions.
as a legislator on the allegation that her prerogatives as a Unlike the legislative and judicial branch, only one constitutes
lawmaker have been impaired by PP 1017 and G.O. No. 5. the executive branch and anything which impairs his
Her claim that she is a media personality will not likewise aid usefulness in the discharge of the many great and important
her because there was no showing that the enforcement of duties imposed upon him by the Constitution necessarily
these issuances prevented her from pursuing her occupation. impairs the operation of the Government. However, this does
Her submission that she has pending electoral protest before not mean that the President is not accountable to anyone. Like
the Presidential Electoral Tribunal is likewise of no relevance. any other official, he remains accountable to the people68 but
She has not sufficiently shown that PP 1017 will affect the he may be removed from office only in the mode provided by
proceedings or result of her case. But considering once more law and that is by impeachment.69
the transcendental importance of the issue involved, this Court
may relax the standing rules. B. SUBSTANTIVE
It must always be borne in mind that the question of locus I. Review of Factual Bases
standi is but corollary to the bigger question of proper exercise
of judicial power. This is the underlying legal tenet of the Petitioners maintain that PP 1017 has no factual basis. Hence,
"liberality doctrine" on legal standing. It cannot be doubted that it was not "necessary" for President Arroyo to issue such
the validity of PP No. 1017 and G.O. No. 5 is a judicial Proclamation.
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 The issue of whether the Court may review the factual bases
this very critical matter. The petitions thus call for the of the President’s exercise of his Commander-in-Chief power
application of the "transcendental importance" doctrine, a has reached its distilled point - from the indulgent days
relaxation of the standing requirements for the petitioners in of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the
the "PP 1017 cases."1avvphil.net volatile era of Lansang v. Garcia,72Aquino, Jr. v. Enrile,73 and
Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across
the line defining "political questions," particularly those
This Court holds that all the petitioners herein have locus questions "in regard to which full discretionary authority has
standi. been delegated to the legislative or executive branch of the
government."75 Barcelon and Montenegro were in unison in
Incidentally, it is not proper to implead President Arroyo as declaring that the authority to decide whether an exigency
respondent. Settled is the doctrine that the President, during has arisen belongs to the President and his decision is
his tenure of office or actual incumbency,67 may not be sued final and conclusive on the courts. Lansang took the
in any civil or criminal case, and there is no need to provide for opposite view. There, the members of the Court were
it in the Constitution or law. It will degrade the dignity of the unanimous in the conviction that the Court has the authority to
high office of the President, the Head of State, if he can be inquire into the existence of factual bases in order to
dragged into court litigations while serving as such. determine their constitutional sufficiency. From the principle
Furthermore, it is important that he be freed from any form of of separation of powers, it shifted the focus to the system
harassment, hindrance or distraction to enable him to fully of checks and balances, "under which the President is
supreme, x x x only if and when he acts within the sphere also of duty.82
allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the As to how the Court may inquire into the President’s exercise
Judicial Department, which in this respect, is, in turn, of power, Lansang adopted the test that "judicial inquiry
constitutionally supreme."76 In 1973, the unanimous Court can go no further than to satisfy the Court not that the
of Lansang was divided in Aquino v. Enrile.77 There, the Court President’s decision is correct," but that "the President did not
was almost evenly divided on the issue of whether the validity act arbitrarily." Thus, the standard laid down is not
of the imposition of Martial Law is a political or justiciable correctness, but arbitrariness.83 In Integrated Bar of the
question.78Then came Garcia-Padilla v. Enrile which greatly Philippines, this Court further ruled that "it is incumbent upon
diluted Lansang. It declared that there is a need to re-examine the petitioner to show that the President’s decision is
the latter case, ratiocinating that "in times of war or national totally bereft of factual basis" and that if he fails, by way of
emergency, the President must be given absolute control proof, to support his assertion, then "this Court cannot
for the very life of the nation and the government is in undertake an independent investigation beyond the
great peril. The President, it intoned, is answerable only to pleadings."
his conscience, the People, and God."79
Petitioners failed to show that President Arroyo’s exercise of
The Integrated Bar of the Philippines v. Zamora80 -- a recent the calling-out power, by issuing PP 1017, is totally bereft of
case most pertinent to these cases at bar -- echoed a principle factual basis. A reading of the Solicitor General’s Consolidated
similar toLansang. While the Court considered the President’s Comment and Memorandum shows a detailed narration of the
"calling-out" power as a discretionary power solely vested in events leading to the issuance of PP 1017, with supporting
his wisdom, it stressed that "this does not prevent an reports forming part of the records. Mentioned are the escape
examination of whether such power was exercised within of the Magdalo Group, their audacious threat of the Magdalo
permissible constitutional limits or whether it was D-Day, the defections in the military, particularly in the
exercised in a manner constituting grave abuse of Philippine Marines, and the reproving statements from the
discretion."This ruling is mainly a result of the Court’s reliance communist leaders. There was also the Minutes of the
on Section 1, Article VIII of 1987 Constitution which fortifies Intelligence Report and Security Group of the Philippine Army
the authority of the courts to determine in an appropriate showing the growing alliance between the NPA and the
action the validity of the acts of the political departments. military. Petitioners presented nothing to refute such events.
Under the new definition of judicial power, the courts are Thus, absent any contrary allegations, the Court is convinced
authorized not only "to settle actual controversies involving that the President was justified in issuing PP 1017 calling for
rights which are legally demandable and enforceable," but also military aid.
"to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of Indeed, judging the seriousness of the incidents, President
jurisdiction on the part of any branch or instrumentality of Arroyo was not expected to simply fold her arms and do
the government." The latter part of the authority represents a nothing to prevent or suppress what she believed was lawless
broadening of judicial power to enable the courts of justice to violence, invasion or rebellion. However, the exercise of such
review what was before a forbidden territory, to wit, the power or duty must not stifle liberty.
discretion of the political departments of the government.81 It
speaks of judicial prerogative not only in terms of powerbut
II. Constitutionality of PP 1017 and G.O. No. 5 If the peril is of such a kind that the paraphernalia of the laws
Doctrines of Several Political Theorists are an obstacle to their preservation, the method is to
on the Power of the President in Times of Emergency nominate a supreme lawyer, who shall silence all the laws and
suspend for a moment the sovereign authority. In such a case,
This case brings to fore a contentious subject -- the power of there is no doubt about the general will, and it clear that the
the President in times of emergency. A glimpse at the various people’s first intention is that the State shall not perish.86
political theories relating to this subject provides an adequate
backdrop for our ensuing discussion. Rosseau did not fear the abuse of the emergency dictatorship
or "supreme magistracy" as he termed it. For him, it would
John Locke, describing the architecture of civil government, more likely be cheapened by "indiscreet use." He was
called upon the English doctrine of prerogative to cope with unwilling to rely upon an "appeal to heaven." Instead, he
the problem of emergency. In times of danger to the nation, relied upon a tenure of office of prescribed duration to avoid
positive law enacted by the legislature might be inadequate or perpetuation of the dictatorship.87
even a fatal obstacle to the promptness of action necessary to
avert catastrophe. In these situations, the Crown retained a John Stuart Mill concluded his ardent defense of
prerogative "power to act according to discretion for the representative government: "I am far from condemning, in
public good, without the proscription of the law and cases of extreme necessity, the assumption of absolute
sometimes even against it."84 But Locke recognized that this power in the form of a temporary dictatorship."88
moral restraint might not suffice to avoid abuse of prerogative
powers. Who shall judge the need for resorting to the Nicollo Machiavelli’s view of emergency powers, as one
prerogative and how may its abuse be avoided? Here, element in the whole scheme of limited government, furnished
Locke readily admitted defeat, suggesting that "the people an ironic contrast to the Lockean theory of prerogative. He
have no other remedy in this, as in all other cases where recognized and attempted to bridge this chasm in democratic
they have no judge on earth, but to appeal to Heaven."85 political theory, thus:
Jean-Jacques Rousseau also assumed the need for Now, in a well-ordered society, it should never be necessary to
temporary suspension of democratic processes of government resort to extra –constitutional measures; for although they may
in time of emergency. According to him: for a time be beneficial, yet the precedent is pernicious, for if
the practice is once established for good objects, they will in a
The inflexibility of the laws, which prevents them from adopting little while be disregarded under that pretext but for evil
themselves to circumstances, may, in certain cases, render purposes. Thus, no republic will ever be perfect if she has not
them disastrous and make them bring about, at a time of by law provided for everything, having a remedy for every
crisis, the ruin of the State… emergency and fixed rules for applying it.89
It is wrong therefore to wish to make political institutions as Machiavelli – in contrast to Locke, Rosseau and Mill – sought
strong as to render it impossible to suspend their operation. to incorporate into the constitution a regularized system of
Even Sparta allowed its law to lapse... 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 existence of an emergency; emergency powers should be
reserve of power and speed and vigor in its application in time exercised under a strict time limitation; and last, the
of emergency, with effective constitutional restraints.90 objective of emergency action must be the defense of the
constitutional order."97
Contemporary political theorists, addressing themselves to the
problem of response to emergency by constitutional Clinton L. Rossiter, after surveying the history of the
democracies, have employed the doctrine of constitutional employment of emergency powers in Great Britain, France,
dictatorship.91 Frederick M. Watkins saw "no reason why Weimar, Germany and the United States, reverted to a
absolutism should not be used as a means for the description of a scheme of "constitutional dictatorship" as
defense of liberal institutions," provided it "serves to solution to the vexing problems presented by
protect established institutions from the danger of emergency.98 Like Watkins and Friedrich, he stated a priori the
permanent injury in a period of temporary emergency and conditions of success of the "constitutional dictatorship," thus:
is followed by a prompt return to the previous forms of
political life."92 He recognized the two (2) key elements of the 1) No general regime or particular institution of
problem of emergency governance, as well as all constitutional constitutional dictatorship should be initiated unless it
governance:increasing administrative powers of the is necessary or even indispensable to the preservation
executive, while at the same time "imposing limitation of the State and its constitutional order…
upon that power."93 Watkins placed his real faith in a scheme
of constitutional dictatorship. These are the conditions of 2) …the decision to institute a constitutional
success of such a dictatorship: "The period of dictatorship dictatorship should never be in the hands of the man
must be relatively short…Dictatorship should always be or men who will constitute the dictator…
strictly legitimate in character…Final authority to
determine the need for dictatorship in any given case
must never rest with the dictator himself…"94 and the 3) No government should initiate a constitutional
objective of such an emergency dictatorship should be "strict dictatorship without making specific provisions for its
political conservatism." termination…
Carl J. Friedrich cast his analysis in terms similar to those of 4) …all uses of emergency powers and all
Watkins.95 "It is a problem of concentrating power – in a readjustments in the organization of the government
government where power has consciously been divided – to should be effected in pursuit of constitutional or legal
cope with… situations of unprecedented magnitude and requirements…
gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such 5) … no dictatorial institution should be adopted, no
powers, when, for how long, and to what end."96 Friedrich, too, right invaded, no regular procedure altered any more
offered criteria for judging the adequacy of any of scheme of than is absolutely necessary for the conquest of the
emergency powers, to wit: "The emergency executive must particular crisis . . .
be appointed by constitutional means – i.e., he must be
legitimate; he should not enjoy power to determine the 6) The measures adopted in the prosecution of the a
constitutional dictatorship should never be permanent constitutional theory." To appraise emergency power in
in character or effect… terms of constitutional dictatorship serves merely to distort the
problem and hinder realistic analysis. It matters not whether
7) The dictatorship should be carried on by persons the term "dictator" is used in its normal sense (as applied to
representative of every part of the citizenry interested authoritarian rulers) or is employed to embrace all chief
in the defense of the existing constitutional order. . . executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the
implication of suspension of the processes of
8) Ultimate responsibility should be maintained for
constitutionalism. Thus, they favored instead the "concept of
every action taken under a constitutional dictatorship. .
constitutionalism" articulated by Charles H. McIlwain:
.
"and to enforce obedience to all the laws and to all decrees, The Congress, if not in session, shall within twenty-four hours
orders and regulations promulgated by me personally or upon following such proclamation or suspension, convene in
my direction;" accordance with its rules without need of a call.
A state of martial law does not suspend the operation of the As the Executive in whom the executive power is vested,115 the
Constitution, nor supplant the functioning of the civil courts or primary function of the President is to enforce the laws as well
legislative assemblies, nor authorize the conferment of as to formulate policies to be embodied in existing laws. He
jurisdiction on military courts and agencies over civilians where sees to it that all laws are enforced by the officials and
civil courts are able to function, nor automatically suspend the employees of his department. Before assuming office, he is
privilege of the writ. required to take an oath or affirmation to the effect that as
President of the Philippines, he will, among others, "execute
Justice Mendoza also stated that PP 1017 is not a declaration its laws."116 In the exercise of such function, the President, if
of Martial Law. It is no more than a call by the President to the needed, may employ the powers attached to his office as the
armed forces to prevent or suppress lawless violence. As Commander-in-Chief of all the armed forces of the
such, it cannot be used to justify acts that only under a valid country,117 including the Philippine National Police118 under the
declaration of Martial Law can be done. Its use for any other Department of Interior and Local Government.119
purpose is a perversion of its nature and scope, and any act
done contrary to its command is ultra vires.
Petitioners, especially Representatives Francis Joseph G.
Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casiño,
Justice Mendoza further stated that specifically, (a) arrests and Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the "decrees"?
power to enact laws and decrees in violation of Section 1,
Article VI of the Constitution, which vests the power to enact PP 1017 states in part: "to enforce obedience to all the laws
laws in Congress. They assail the clause "to enforce and decrees x x x promulgated by me personally or upon
obedience to all the laws and to all decrees, orders and my direction."
regulations promulgated by me personally or upon my
direction." The President is granted an Ordinance Power under Chapter
2, Book III of Executive Order No. 292 (Administrative Code of
\ 1987). She may issue any of the following:
Petitioners’ contention is understandable. A reading of PP Sec. 2. Executive Orders. — Acts of the President providing
1017 operative clause shows that it was lifted120 from Former for rules of a general or permanent character in
President Marcos’ Proclamation No. 1081, which partly reads: implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines by virtue of the powers vested upon me by Sec. 3. Administrative Orders. — Acts of the President which
Article VII, Section 10, Paragraph (2) of the Constitution, do relate to particular aspect of governmental operations in
hereby place the entire Philippines as defined in Article 1, pursuance of his duties as administrative head shall be
Section 1 of the Constitution under martial law and, in my promulgated in administrative orders.
capacity as their Commander-in-Chief, do hereby command
the Armed Forces of the Philippines, to maintain law and Sec. 4. Proclamations. — Acts of the President fixing a date or
order throughout the Philippines, prevent or suppress all declaring a status or condition of public moment or interest,
forms of lawless violence as well as any act of upon the existence of which the operation of a specific law or
insurrection or rebellion and to enforce obedience to all regulation is made to depend, shall be promulgated in
the laws and decrees, orders and regulations promulgated proclamations which shall have the force of an executive
by me personally or upon my direction. order.
We all know that it was PP 1081 which granted President Sec. 5. Memorandum Orders. — Acts of the President on
Marcos legislative power. Its enabling clause states: "to matters of administrative detail or of subordinate or temporary
enforce obedience to all the laws and decrees, orders and interest which only concern a particular officer or office of the
regulations promulgated by me personally or upon my Government shall be embodied in memorandum orders.
direction." Upon the other hand, the enabling clause of PP
1017 issued by President Arroyo is: to enforce obedience to
all the laws and to all decrees, orders and regulations Sec. 6. Memorandum Circulars. — Acts of the President on
promulgated by me personally or upon my direction." 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,
Is it within the domain of President Arroyo to promulgate for information or compliance, shall be embodied in
memorandum circulars. Third Provision: Power to Take Over
Sec. 7. General or Special Orders. — Acts and commands of The pertinent provision of PP 1017 states:
the President in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines shall be issued as general or x x x and to enforce obedience to all the laws and to all
special orders. decrees, orders, and regulations promulgated by me
personally or upon my direction;and as provided in Section
President Arroyo’s ordinance power is limited to the foregoing 17, Article XII of the Constitution do hereby declare a state
issuances. She cannot issue decrees similar to those issued of national emergency.
by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding The import of this provision is that President Arroyo, during the
force as statutes because they were issued by the President in state of national emergency under PP 1017, can call the
the exercise of his legislative power during the period of military not only to enforce obedience "to all the laws and to all
Martial Law under the 1973 Constitution.121 decrees x x x" but also to act pursuant to the provision of
Section 17, Article XII which reads:
This Court rules that the assailed PP 1017 is
unconstitutional insofar as it grants President Arroyo the Sec. 17. In times of national emergency, when the public
authority to promulgate "decrees." Legislative power is interest so requires, the State may, during the emergency and
peculiarly within the province of the Legislature. Section 1, under reasonable terms prescribed by it, temporarily take over
Article VI categorically states that "[t]he legislative power or direct the operation of any privately-owned public utility or
shall be vested in the Congress of the Philippines which business affected with public interest.
shall consist of a Senate and a House of Representatives."
To be sure, neither Martial Law nor a state of rebellion nor a What could be the reason of President Arroyo in invoking the
state of emergency can justify President Arroyo’s exercise of above provision when she issued PP 1017?
legislative power by issuing decrees.
The answer is simple. During the existence of the state of
Can President Arroyo enforce obedience to all decrees and national emergency, PP 1017 purports to grant the President,
laws through the military? without any authority or delegation from Congress, to take
over or direct the operation of any privately-owned public utility
As this Court stated earlier, President Arroyo has no authority or business affected with public interest.
to enact decrees. It follows that these decrees are void and,
therefore, cannot be enforced. With respect to "laws," she This provision was first introduced in the 1973 Constitution, as
cannot call the military to enforce or implement certain laws, a product of the "martial law" thinking of the 1971
such as customs laws, laws governing family and property Constitutional Convention.122 In effect at the time of its
relations, laws on obligations and contracts and the like. She approval was President Marcos’ Letter of Instruction No. 2
can only order the military, under PP 1017, to enforce laws
dated September 22, 1972 instructing the Secretary of
pertinent to its duty to suppress lawless violence. National Defense to take over "the management, control and
operation of the Manila Electric Company, the Philippine Long It may be pointed out that the second paragraph of the above
Distance Telephone Company, the National Waterworks and provision refers not only to war but also to "other national
Sewerage Authority, the Philippine National Railways, the emergency." If the intention of the Framers of our Constitution
Philippine Air Lines, Air Manila (and) Filipinas Orient was to withhold from the President the authority to declare a
Airways . . . for the successful prosecution by the Government "state of national emergency" pursuant to Section 18, Article
of its effort to contain, solve and end the present national VII (calling-out power) and grant it to Congress (like the
emergency." declaration of the existence of a state of war), then the
Framers could have provided so. Clearly, they did not intend
Petitioners, particularly the members of the House of that Congress should first authorize the President before he
Representatives, claim that President Arroyo’s inclusion of can declare a "state of national emergency." The logical
Section 17, Article XII in PP 1017 is an encroachment on the conclusion then is that President Arroyo could validly declare
legislature’s emergency powers. the existence of a state of national emergency even in the
absence of a Congressional enactment.
This is an area that needs delineation.
But the exercise of emergency powers, such as the taking
over of privately owned public utility or business affected with
A distinction must be drawn between the President’s authority
public interest, is a different matter. This requires a delegation
to declare "a state of national emergency" and
from Congress.
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 Courts have often said that constitutional provisions in pari
raised. But to the second, manifold constitutional issues arise. 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
Section 23, Article VI of the Constitution reads:
together and considered in the light of each
other.123 Considering that Section 17 of Article XII and Section
SEC. 23. (1) The Congress, by a vote of two-thirds of both 23 of Article VI, previously quoted, relate to national
Houses in joint session assembled, voting separately, shall emergencies, they must be read together to determine the
have the sole power to declare the existence of a state of limitation of the exercise of emergency powers.
war.
Generally, Congress is the repository of emergency
(2) In times of war or other national emergency, the powers. This is evident in the tenor of Section 23 (2), Article
Congress may, by law, authorize the President, for a limited VI authorizing it to delegate such powers to the
period and subject to such restrictions as it may prescribe, to President. Certainly, a body cannot delegate a power not
exercise powers necessary and proper to carry out a declared reposed upon it. However, knowing that during grave
national policy. Unless sooner withdrawn by resolution of the emergencies, it may not be possible or practicable for
Congress, such powers shall cease upon the next Congress to meet and exercise its powers, the Framers of our
adjournment thereof. Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain
conditions, thus: The order cannot properly be sustained as an exercise of the
President’s military power as Commander-in-Chief of the
(1) There must be a war or other emergency. 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
(2) The delegation must be for a limited period only.
war. Such cases need not concern us here. Even though
"theater of war" be an expanding concept, we cannot with
(3) The delegation must be subject to such faithfulness to our constitutional system hold that the
restrictions as the Congress may prescribe. Commander-in-Chief of the Armed Forces has the ultimate
power as such to take possession of private property in
(4) The emergency powers must be exercised to carry order to keep labor disputes from stopping production.
out a national policy declared by Congress.124 This is a job for the nation’s lawmakers, not for its military
authorities.
Section 17, Article XII must be understood as an aspect of the
emergency powers clause. The taking over of private business Nor can the seizure order be sustained because of the
affected with public interest is just another facet of the several constitutional provisions that grant executive
emergency powers generally reposed upon Congress. Thus, power to the President. In the framework of our
when Section 17 states that the "the State may, during the Constitution, the President’s power to see that the laws
emergency and under reasonable terms prescribed by it, are faithfully executed refutes the idea that he is to be a
temporarily take over or direct the operation of any lawmaker. The Constitution limits his functions in the
privately owned public utility or business affected with lawmaking process to the recommending of laws he
public interest," it refers to Congress, not the President. Now, thinks wise and the vetoing of laws he thinks bad. And the
whether or not the President may exercise such power is Constitution is neither silent nor equivocal about who
dependent on whether Congress may delegate it to him shall make laws which the President is to execute. The
pursuant to a law prescribing the reasonable terms first section of the first article says that "All legislative
thereof. Youngstown Sheet & Tube Co. et al. v. Powers herein granted shall be vested in a Congress of
Sawyer,125 held: the United States. . ."126
It is clear that if the President had authority to issue the order Petitioner Cacho-Olivares, et al. contends that the term
he did, it must be found in some provision of the Constitution. "emergency" under Section 17, Article XII refers to "tsunami,"
And it is not claimed that express constitutional language "typhoon," "hurricane"and"similar occurrences." This is a
grants this power to the President. The contention is that limited view of "emergency."
presidential power should be implied from the aggregate of his
powers under the Constitution. Particular reliance is placed on Emergency, as a generic term, connotes the existence of
provisions in Article II which say that "The executive Power conditions suddenly intensifying the degree of existing danger
shall be vested in a President . . . .;" that "he shall take Care to life or well-being beyond that which is accepted as normal.
that the Laws be faithfully executed;" and that he "shall be Implicit in this definitions are the elements of intensity, variety,
Commander-in-Chief of the Army and Navy of the United and perception.127 Emergencies, as perceived by legislature or
States.
executive in the United Sates since 1933, have been MR. VILLEGAS. Yes, it could refer to both military or
occasioned by a wide range of situations, classifiable under economic dislocations.
three (3) principal heads: a) economic,128 b) natural
disaster,129 and c) national security.130 MR. TINGSON. Thank you very much.133
"Emergency," as contemplated in our Constitution, is of the It may be argued that when there is national emergency,
same breadth. It may include rebellion, economic crisis, Congress may not be able to convene and, therefore, unable
pestilence or epidemic, typhoon, flood, or other similar to delegate to the President the power to take over privately-
catastrophe of nationwide proportions or effect.131 This is owned public utility or business affected with public interest.
evident in the Records of the Constitutional Commission, thus:
In Araneta v. Dinglasan,134 this Court emphasized that
MR. GASCON. Yes. What is the Committee’s definition of legislative power, through which extraordinary measures are
"national emergency" which appears in Section 13, page 5? It exercised, remains in Congress even in times of crisis.
reads:
"x x x
When the common good so requires, the State may
temporarily take over or direct the operation of any privately After all the criticisms that have been made against the
owned public utility or business affected with public interest. efficiency of the system of the separation of powers, the fact
remains that the Constitution has set up this form of
MR. VILLEGAS. What I mean is threat from external government, with all its defects and shortcomings, in
aggression, for example, calamities or natural disasters. preference to the commingling of powers in one man or group
of men. The Filipino people by adopting parliamentary
MR. GASCON. There is a question by Commissioner de los government have given notice that they share the faith of other
Reyes. What about strikes and riots? democracy-loving peoples in this system, with all its faults, as
the ideal. The point is, under this framework of government,
MR. VILLEGAS. Strikes, no; those would not be covered by legislation is preserved for Congress all the time, not excepting
the term "national emergency." 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
MR. BENGZON. Unless they are of such proportions such that
legislative branch of enacting laws been surrendered to
they would paralyze government service.132
another department – unless we regard as legislating the
carrying out of a legislative policy according to prescribed
xxxxxx standards; no, not even when that Republic was fighting a total
war, or when it was engaged in a life-and-death struggle to
MR. TINGSON. May I ask the committee if "national preserve the Union. The truth is that under our concept of
emergency" refers to military national emergency or could constitutional government, in times of extreme perils more
this be economic emergency?" than in normal circumstances ‘the various branches,
executive, legislative, and judicial,’ given the ability to act, are
called upon ‘to perform the duties and discharge the Of the seven (7) petitions, three (3) indicate "direct injury."
responsibilities committed to them respectively."
In G.R. No. 171396, petitioners David and Llamas alleged
Following our interpretation of Section 17, Article XII, invoked that, on February 24, 2006, they were arrested without
by President Arroyo in issuing PP 1017, this Court rules that warrants on their way to EDSA to celebrate the 20th
such Proclamation does not authorize her during the Anniversary of People Power I. The arresting officers cited PP
emergency to temporarily take over or direct the operation of 1017 as basis of the arrest.
any privately owned public utility or business affected with
public interest without authority from Congress. In G.R. No. 171409, petitioners Cacho-Olivares
and Tribune Publishing Co., Inc. claimed that on February 25,
Let it be emphasized that while the President alone can 2006, the CIDG operatives "raided and ransacked without
declare a state of national emergency, however, without warrant" their office. Three policemen were assigned to guard
legislation, he has no power to take over privately-owned their office as a possible "source of destabilization." Again, the
public utility or business affected with public interest. The basis was PP 1017.
President cannot decide whether exceptional circumstances
exist warranting the take over of privately-owned public utility And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et
or business affected with public interest. Nor can he determine al. alleged that their members were "turned away and
when such exceptional circumstances have ceased. dispersed" when they went to EDSA and later, to Ayala
Likewise, without legislation, the President has no power to Avenue, to celebrate the 20th Anniversary of People Power I.
point out the types of businesses affected with public interest
that should be taken over. In short, the President has no A perusal of the "direct injuries" allegedly suffered by the said
absolute authority to exercise all the powers of the State under petitioners shows that they resulted from the implementation,
Section 17, Article VII in the absence of an emergency powers pursuant to G.O. No. 5, of PP 1017.
act passed by Congress.
Can this Court adjudge as unconstitutional PP 1017 and G.O.
c. "AS APPLIED CHALLENGE" No 5 on the basis of these illegal acts? In general, does the
illegal implementation of a law render it unconstitutional?
One of the misfortunes of an emergency, particularly, that
which pertains to security, is that military necessity and the Settled is the rule that courts are not at liberty to declare
guaranteed rights of the individual are often not compatible. statutes invalid although they may be abused and
Our history reveals that in the crucible of conflict, many rights misabused135 and may afford an opportunity for abuse in
are curtailed and trampled upon. Here, the right against the manner of application.136 The validity of a statute or
unreasonable search and seizure; the right against ordinance is to be determined from its general purpose and its
warrantless arrest; and the freedom of speech, of efficiency to accomplish the end desired, not from its effects
expression, of the press, and of assembly under the Bill of in a particular case.137 PP 1017 is merely an invocation of the
Rights suffered the greatest blow.
President’s calling-out power. Its general purpose is to
command the AFP to suppress all forms of lawless violence,
invasion or rebellion. It had accomplished the end desired
which prompted President Arroyo to issue PP 1021. But there Unlike the term "lawless violence" which is unarguably extant
is nothing in PP 1017 allowing the police, expressly or in our statutes and the Constitution, and which is invariably
impliedly, to conduct illegal arrest, search or violate the associated with "invasion, insurrection or rebellion," the phrase
citizens’ constitutional rights. "acts of terrorism" is still an amorphous and vague concept.
Congress has yet to enact a law defining and punishing acts of
Now, may this Court adjudge a law or ordinance terrorism.
unconstitutional on the ground that its implementor committed
illegal acts? The answer is no. The criterion by which the In fact, this "definitional predicament" or the "absence of an
validity of the statute or ordinance is to be measured is the agreed definition of terrorism" confronts not only our country,
essential basis for the exercise of power, and not a mere but the international community as well. The following
incidental result arising from its exertion.138 This is logical. observations are quite apropos:
Just imagine the absurdity of situations when laws maybe
declared unconstitutional just because the officers In the actual unipolar context of international relations, the
implementing them have acted arbitrarily. If this were so, "fight against terrorism" has become one of the basic slogans
judging from the blunders committed by policemen in the when it comes to the justification of the use of force against
cases passed upon by the Court, majority of the provisions of certain states and against groups operating internationally.
the Revised Penal Code would have been declared Lists of states "sponsoring terrorism" and of terrorist
unconstitutional a long time ago. organizations are set up and constantly being updated
according to criteria that are not always known to the public,
President Arroyo issued G.O. No. 5 to carry into effect the but are clearly determined by strategic interests.
provisions of PP 1017. General orders are "acts and
commands of the President in his capacity as Commander-in- The basic problem underlying all these military actions – or
Chief of the Armed Forces of the Philippines." They are threats of the use of force as the most recent by the United
internal rules issued by the executive officer to his States against Iraq – consists in the absence of an agreed
subordinates precisely for definition of terrorism.
the proper and efficient administration of law. Such rules
and regulations create no relation except between the official Remarkable confusion persists in regard to the legal
who issues them and the official who receives them.139 They categorization of acts of violence either by states, by armed
are based on and are the product of, a relationship in which groups such as liberation movements, or by individuals.
power is their source, and obedience, their object.140 For these
reasons, one requirement for these rules to be valid is that
they must bereasonable, not arbitrary or capricious. The dilemma can by summarized in the saying "One country’s
terrorist is another country’s freedom fighter." The apparent
contradiction or lack of consistency in the use of the term
G.O. No. 5 mandates the AFP and the PNP to immediately "terrorism" may further be demonstrated by the historical fact
carry out the "necessary and appropriate actions and that leaders of national liberation movements such as Nelson
measures to suppress and prevent acts of terrorism and Mandela in South Africa, Habib Bourgouiba in Tunisia, or
lawless violence." 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 its actions be explained? In our analysis, the basic reason for
statesmen. these striking inconsistencies lies in the divergent interest of
states. Depending on whether a state is in the position of an
What, then, is the defining criterion for terrorist acts – occupying power or in that of a rival, or adversary, of an
the differentia specifica distinguishing those acts from occupying power in a given territory, the definition of terrorism
eventually legitimate acts of national resistance or self- will "fluctuate" accordingly. A state may eventually see itself as
defense? protector of the rights of a certain ethnic group outside its
territory and will therefore speak of a "liberation struggle," not
of "terrorism" when acts of violence by this group are
Since the times of the Cold War the United Nations
concerned, and vice-versa.
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 The United Nations Organization has been unable to reach a
between those who associate "terrorism" with any violent act decision on the definition of terrorism exactly because of these
by non-state groups against civilians, state functionaries or conflicting interests of sovereign states that determine in each
infrastructure or military installations, and those who believe in and every instance how a particular armed movement (i.e. a
the concept of the legitimate use of force when resistance non-state actor) is labeled in regard to the terrorists-freedom
against foreign occupation or against systematic oppression of fighter dichotomy. A "policy of double standards" on this vital
ethnic and/or religious groups within a state is concerned. issue of international affairs has been the unavoidable
consequence.
The dilemma facing the international community can best be
illustrated by reference to the contradicting categorization of This "definitional predicament" of an organization consisting of
organizations and movements such as Palestine Liberation sovereign states – and not of peoples, in spite of the emphasis
Organization (PLO) – which is a terrorist group for Israel and a in the Preamble to the United Nations Charter! – has become
liberation movement for Arabs and Muslims – the Kashmiri even more serious in the present global power constellation:
resistance groups – who are terrorists in the perception of one superpower exercises the decisive role in the Security
India, liberation fighters in that of Pakistan – the earlier Council, former great powers of the Cold War era as well as
Contras in Nicaragua – freedom fighters for the United States, medium powers are increasingly being marginalized; and the
terrorists for the Socialist camp – or, most drastically, the problem has become even more acute since the terrorist
Afghani Mujahedeen (later to become the Taliban movement): attacks of 11 September 2001 I the United States.141
during the Cold War period they were a group of freedom
fighters for the West, nurtured by the United States, and a The absence of a law defining "acts of terrorism" may result in
terrorist gang for the Soviet Union. One could go on and on in abuse and oppression on the part of the police or military. An
enumerating examples of conflicting categorizations that illustration is when a group of persons are merely engaged in
cannot be reconciled in any way – because of opposing a drinking spree. Yet the military or the police may consider
political interests that are at the roots of those perceptions. the act as an act of terrorism and immediately arrest them
pursuant to G.O. No. 5. Obviously, this is abuse and
How, then, can those contradicting definitions and conflicting oppression on their part. It must be remembered that an act
perceptions and evaluations of one and the same group and can only be considered a crime if there is a law defining the
same as such and imposing the corresponding penalty We first examine G.R. No. 171396 (David et al.)
thereon.
The Constitution provides that "the right of the people to be
So far, the word "terrorism" appears only once in our criminal secured in their persons, houses, papers and effects against
laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted by unreasonable search and seizure of whatever nature and for
President Marcos during the Martial Law regime. This decree any purpose shall be inviolable, and no search warrant
is entitled "Codifying The Various Laws on Anti-Subversion or warrant of arrest shall issue except upon probable cause
and Increasing The Penalties for Membership in Subversive to be determined personally by the judge after examination
Organizations." The word "terrorism" is mentioned in the under oath or affirmation of the complainant and the witnesses
following provision: "That one who conspires with any other he may produce, and particularly describing the place to be
person for the purpose of overthrowing the Government of the searched and the persons or things to be seized."142 The plain
Philippines x x x by force, violence, terrorism, x x x shall be import of the language of the Constitution is that searches,
punished by reclusion temporal x x x." seizures and arrests are normally unreasonable unless
authorized by a validly issued search warrant or warrant of
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws arrest. Thus, the fundamental protection given by this
the Communist Party of the Philippines) enacted by President provision is that between person and police must stand the
Corazon Aquino on May 5, 1985. These two (2) laws, protective authority of a magistrate clothed with power to issue
however, do not define "acts of terrorism." Since there is no or refuse to issue search warrants or warrants of arrest.143
law defining "acts of terrorism," it is President Arroyo alone,
under G.O. No. 5, who has the discretion to determine what In the Brief Account144 submitted by petitioner David, certain
acts constitute terrorism. Her judgment on this aspect is facts are established: first, he was arrested without
absolute, without restrictions. Consequently, there can be warrant; second, the PNP operatives arrested him on the basis
indiscriminate arrest without warrants, breaking into offices of PP 1017; third, he was brought at Camp Karingal, Quezon
and residences, taking over the media enterprises, prohibition City where he was fingerprinted, photographed and booked
and dispersal of all assemblies and gatherings unfriendly to like a criminal suspect; fourth,he was treated brusquely by
the administration. All these can be effected in the name of policemen who "held his head and tried to push him" inside an
G.O. No. 5. These acts go far beyond the calling-out power of unmarked car; fifth, he was charged with Violation of Batas
the President. Certainly, they violate the due process clause of Pambansa Bilang No. 880145 and Inciting to
the Constitution. Thus, this Court declares that the "acts of Sedition; sixth, he was detained for seven (7) hours;
terrorism" portion of G.O. No. 5 is unconstitutional. and seventh,he was eventually released for insufficiency of
evidence.
Significantly, there is nothing in G.O. No. 5 authorizing the
military or police to commit acts beyond what are necessary Section 5, Rule 113 of the Revised Rules on Criminal
and appropriate to suppress and prevent lawless Procedure provides:
violence, the limitation of their authority in pursuing the Order.
Otherwise, such acts are considered illegal. Sec. 5. Arrest without warrant; when lawful. - A peace
officer or a private person may, without a warrant, arrest a
person: peaceably to assemble and petition the government for
redress of grievances.
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or is attempting "Assembly" means a right on the part of the citizens to meet
to commit an offense. peaceably for consultation in respect to public affairs. It is a
necessary consequence of our republican institution and
(b) When an offense has just been committed and he complements the right of speech. As in the case of freedom of
has probable cause to believe based on personal expression, this right is not to be limited, much less denied,
knowledge of facts or circumstances that the person to except on a showing of a clear and present danger of a
be arrested has committed it; and 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
x x x.
restraint or censorship. It may not be conditioned upon the
prior issuance of a permit or authorization from the
Neither of the two (2) exceptions mentioned above justifies government authorities except, of course, if the assembly is
petitioner David’s warrantless arrest. During the inquest for the intended to be held in a public place, a permit for the use of
charges of inciting to sedition and violation of BP 880, all such place, and not for the assembly itself, may be validly
that the arresting officers could invoke was their observation required.
that some rallyists were wearing t-shirts with the
invective "Oust Gloria Now" and their erroneous assumption
The ringing truth here is that petitioner David, et al. were
that petitioner David was the leader of the
arrested while they were exercising their right to peaceful
rally.146Consequently, the Inquest Prosecutor ordered his
assembly. They were not committing any crime, neither was
immediate release on the ground of insufficiency of evidence.
there a showing of a clear and present danger that warranted
He noted that petitioner David was not wearing the subject t-
the limitation of that right. As can be gleaned from
shirt and even if he was wearing it, such fact is insufficient to
circumstances, the charges of inciting to
charge him with inciting to sedition. Further, he also stated
sedition and violation of BP 880 were mere afterthought.
that there is insufficient evidence for the charge of violation of
Even the Solicitor General, during the oral argument, failed to
BP 880 as it was not even known whether petitioner David
justify the arresting officers’ conduct. In De Jonge v.
was the leader of the rally.147
Oregon,148 it was held that peaceable assembly cannot be
made a crime, thus:
But what made it doubly worse for petitioners David et al. is
that not only was their right against warrantless arrest violated,
Peaceable assembly for lawful discussion cannot be made a
but also their right to peaceably assemble.
crime. The holding of meetings for peaceable political action
cannot be proscribed. Those who assist in the conduct of such
Section 4 of Article III guarantees: meetings cannot be branded as criminals on that score. The
question, if the rights of free speech and peaceful assembly
No law shall be passed abridging the freedom of speech, of are not to be preserved, is not as to the auspices under which
expression, or of the press, or the right of the people the meeting was held but as to its purpose; not as to the
relations of the speakers, but whether their utterances the dispersal. Such absence of notice is a fatal defect. When a
transcend the bounds of the freedom of speech which the person’s right is restricted by government action, it behooves a
Constitution protects. If the persons assembling have democratic government to see to it that the restriction is fair,
committed crimes elsewhere, if they have formed or are reasonable, and according to procedure.
engaged in a conspiracy against the public peace and order,
they may be prosecuted for their conspiracy or other violations G.R. No. 171409, (Cacho-Olivares, et al.) presents another
of valid laws. But it is a different matter when the State, facet of freedom of speech i.e., the freedom of the press.
instead of prosecuting them for such offenses, seizes Petitioners’ narration of facts, which the Solicitor General failed
upon mere participation in a peaceable assembly and a to refute, established the following: first, the Daily
lawful public discussion as the basis for a criminal Tribune’s offices were searched without warrant;second, the
charge. police operatives seized several materials for publication; third,
the search was conducted at about 1:00 o’ clock in the
On the basis of the above principles, the Court likewise morning of February 25, 2006; fourth, the search was
considers the dispersal and arrest of the members of KMU et conducted in the absence of any official of the Daily
al. (G.R. No. 171483) unwarranted. Apparently, their dispersal Tribune except the security guard of the building;
was done merely on the basis of Malacañang’s directive and fifth, policemen stationed themselves at the vicinity of
canceling all permits previously issued by local government the Daily Tribune offices.
units. This is arbitrary. The wholesale cancellation of all
permits to rally is a blatant disregard of the principle that Thereafter, a wave of warning came from government officials.
"freedom of assembly is not to be limited, much less Presidential Chief of Staff Michael Defensor was quoted as
denied, except on a showing of a clear and present saying that such raid was "meant to show a ‘strong
danger of a substantive evil that the State has a right to presence,’ to tell media outlets not to connive or do
prevent."149 Tolerance is the rule and limitation is the anything that would help the rebels in bringing down this
exception. Only upon a showing that an assembly presents a government." Director General Lomibao further stated that "if
clear and present danger that the State may deny the citizens’ they do not follow the standards –and the standards are if
right to exercise it. Indeed, respondents failed to show or they would contribute to instability in the government, or
convince the Court that the rallyists committed acts amounting if they do not subscribe to what is in General Order No. 5
to lawless violence, invasion or rebellion. With the blanket and Proc. No. 1017 – we will recommend a ‘takeover.’"
revocation of permits, the distinction between protected and National Telecommunications Commissioner Ronald Solis
unprotected assemblies was eliminated. urged television and radio networks to "cooperate" with the
government for the duration of the state of national
Moreover, under BP 880, the authority to regulate assemblies emergency. He warned that his agency will not hesitate to
and rallies is lodged with the local government units. They recommend the closure of any broadcast outfit that
have the power to issue permits and to revoke such violates rules set out for media coverage during times
permits after due notice and hearing on the determination of when the national security is threatened.151
the presence of clear and present danger. Here, petitioners
were not even notified and heard on the revocation of their The search is illegal. Rule 126 of The Revised Rules on
permits.150 The first time they learned of it was at the time of Criminal Procedure lays down the steps in the conduct of
search and seizure.Section 4 requires that a search sealed like the "Metropolitan Mail" and "We Forum"
warrant be issued upon probable cause in connection with newspapers in the above case, yet it cannot be denied that the
one specific offence to be determined personally by the judge CIDG operatives exceeded their enforcement duties. The
after examination under oath or affirmation of the complainant search and seizure of materials for publication, the stationing
and the witnesses he may produce. Section 8mandates that of policemen in the vicinity of the The Daily Tribune offices,
the search of a house, room, or any other premise be made in and the arrogant warning of government officials to media, are
the presence of the lawful occupant thereof or any member plain censorship. It is that officious functionary of the
of his family or in the absence of the latter, in the presence of repressive government who tells the citizen that he may speak
two (2) witnesses of sufficient age and discretion residing in only if allowed to do so, and no more and no less than what he
the same locality. And Section 9 states that the warrant must is permitted to say on pain of punishment should he be so rash
direct that it be served in the daytime, unless the property is as to disobey.153Undoubtedly, the The Daily Tribune was
on the person or in the place ordered to be searched, in which subjected to these arbitrary intrusions because of its anti-
case a direction may be inserted that it be served at any time government sentiments. This Court cannot tolerate the blatant
of the day or night. All these rules were violated by the CIDG disregard of a constitutional right even if it involves the most
operatives. defiant of our citizens. Freedom to comment on public affairs is
essential to the vitality of a representative democracy. It is the
Not only that, the search violated petitioners’ freedom of the duty of the courts to be watchful for the constitutional rights of
press. The best gauge of a free and democratic society rests the citizen, and against any stealthy encroachments thereon.
in the degree of freedom enjoyed by its media. In the Burgos The motto should always be obsta principiis.154
v. Chief of Staff152 this Court held that --
Incidentally, during the oral arguments, the Solicitor General
As heretofore stated, the premises searched were the admitted that the search of the Tribune’s offices and the
business and printing offices of the "Metropolitan Mail" and the seizure of its materials for publication and other papers are
"We Forum" newspapers. As a consequence of the search illegal; and that the same are inadmissible "for any purpose,"
and seizure, these premises were padlocked and sealed, thus:
with the further result that the printing and publication of
said newspapers were discontinued. JUSTICE CALLEJO:
Such closure is in the nature of previous restraint or You made quite a mouthful of admission when you said that
censorship abhorrent to the freedom of the press the policemen, when inspected the Tribune for the purpose of
guaranteed under the fundamental law, and constitutes a gathering evidence and you admitted that the policemen were
virtual denial of petitioners' freedom to express able to get the clippings. Is that not in admission of the
themselves in print. This state of being is patently admissibility of these clippings that were taken from the
anathematic to a democratic framework where a free, alert Tribune?
and even militant press is essential for the political
enlightenment and growth of the citizenry. SOLICITOR GENERAL BENIPAYO:
While admittedly, the Daily Tribune was not padlocked and Under the law they would seem to be, if they were illegally
seized, I think and I know, Your Honor, and these are As far as I know, no, Your Honor, from the facts, no.
inadmissible for any purpose.155
SR. ASSO. JUSTICE PUNO:
xxxxxxxxx
So, it has no basis, no legal basis whatsoever?
SR. ASSO. JUSTICE PUNO:
SOLGEN BENIPAYO:
These have been published in the past issues of the Daily
Tribune; all you have to do is to get those past issues. So why Maybe so, Your Honor. Maybe so, that is why I said, I don’t
do you have to go there at 1 o’clock in the morning and without know if it is premature to say this, we do not condone this. If
any search warrant? Did they become suddenly part of the the people who have been injured by this would want to
evidence of rebellion or inciting to sedition or what? sue them, they can sue and there are remedies for this.156
SOLGEN BENIPAYO: Likewise, the warrantless arrests and seizures executed by the
police were, according to the Solicitor General, illegal and
Well, it was the police that did that, Your Honor. Not upon my cannot be condoned, thus:
instructions.
CHIEF JUSTICE PANGANIBAN:
SR. ASSO. JUSTICE PUNO:
There seems to be some confusions if not contradiction in your
Are you saying that the act of the policeman is illegal, it is not theory.
based on any law, and it is not based on Proclamation 1017.
SOLICITOR GENERAL BENIPAYO:
SOLGEN BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed
It is not based on Proclamation 1017, Your Honor, because illegal or unlawful acts committed on the occasion of 1017, as I
there is nothing in 1017 which says that the police could go said, it cannot be condoned. You cannot blame the
and inspect and gather clippings from Daily Tribune or any President for, as you said, a misapplication of the law. These
other newspaper. are acts of the police officers, that is their responsibility.157
SR. ASSO. JUSTICE PUNO: The Dissenting Opinion states that PP 1017 and G.O. No. 5
are constitutional in every aspect and "should result in no
Is it based on any law? constitutional or statutory breaches if applied according to their
letter."
SOLGEN BENIPAYO:
The Court has passed upon the constitutionality of these
issuances. Its ratiocination has been exhaustively presented. also rules that under Section 17, Article XII of the Constitution,
At this point, suffice it to reiterate that PP 1017 is limited to the the President, in the absence of a legislation, cannot take over
calling out by the President of the military to prevent or privately-owned public utility and private business affected with
suppress lawless violence, invasion or rebellion. When in public interest.
implementing its provisions, pursuant to G.O. No. 5, the
military and the police committed acts which violate the In the same vein, the Court finds G.O. No. 5 valid. It is an
citizens’ rights under the Constitution, this Court has to declare Order issued by the President – acting as Commander-in-
such acts unconstitutional and illegal. Chief – addressed to subalterns in the AFP to carry out the
provisions of PP 1017. Significantly, it also provides a valid
In this connection, Chief Justice Artemio V. Panganiban’s standard – that the military and the police should take only the
concurring opinion, attached hereto, is considered an integral "necessary and appropriate actions and measures to
part of thisponencia. suppress and prevent acts of lawless violence."But the
words "acts of terrorism" found in G.O. No. 5 have not been
SUMMATION legally defined and made punishable by Congress and should
thus be deemed deleted from the said G.O. While "terrorism"
has been denounced generally in media, no law has been
In sum, the lifting of PP 1017 through the issuance of PP 1021
enacted to guide the military, and eventually the courts, to
– a supervening event – would have normally rendered this
determine the limits of the AFP’s authority in carrying out this
case moot and academic. However, while PP 1017 was still
portion of G.O. No. 5.
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 On the basis of the relevant and uncontested facts narrated
been media reports on April 30, 2006 that allegedly PP 1017 earlier, it is also pristine clear that (1) the warrantless arrest of
would be reimposed "if the May 1 rallies" become "unruly and petitioners Randolf S. David and Ronald Llamas; (2) the
violent." Consequently, the transcendental issues raised by dispersal of the rallies and warrantless arrest of the KMU and
the parties should not be "evaded;" they must now be resolved NAFLU-KMU members; (3) the imposition of standards on
to prevent future constitutional aberration. 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,
The Court finds and so holds that PP 1017 is constitutional
are not authorized by the Constitution, the law and
insofar as it constitutes a call by the President for the AFP to
jurisprudence. Not even by the valid provisions of PP 1017
prevent or suppress lawless violence. The proclamation is
and G.O. No. 5.
sustained by Section 18, Article VII of the Constitution and the
relevant jurisprudence discussed earlier. However, PP 1017’s
extraneous provisions giving the President express or implied Other than this declaration of invalidity, this Court cannot
power (1) to issue decrees; (2) to direct the AFP to enforce impose any civil, criminal or administrative sanctions on the
obedience to all laws even those not related to lawless individual police officers concerned. They have not been
violence as well as decrees promulgated by the President; and individually identified and given their day in court. The civil
(3) to impose standards on media or any form of prior restraint complaints or causes of action and/or relevant criminal
on the press, are ultra vires and unconstitutional. The Court Informations have not been presented before this Court.
Elementary due process bars this Court from making any i.e. whatever is "necessary and appropriate actions and
specific pronouncement of civil, criminal or administrative measures to suppress and prevent acts of lawless
liabilities. violence." Considering that "acts of terrorism" have not yet
been defined and made punishable by the Legislature, such
It is well to remember that military power is a means to an portion of G.O. No. 5 is declared UNCONSTITUTIONAL.
end and substantive civil rights are ends in themselves.
How to give the military the power it needs to protect the The warrantless arrest of Randolf S. David and Ronald
Republic without unnecessarily trampling individual Llamas; the dispersal and warrantless arrest of the KMU and
rights is one of the eternal balancing tasks of a NAFLU-KMU members during their rallies, in the absence of
democratic state.During emergency, governmental action proof that these petitioners were committing acts constituting
may vary in breadth and intensity from normal times, yet they lawless violence, invasion or rebellion and violating BP 880;
should not be arbitrary as to unduly restrain our people’s the imposition of standards on media or any form of prior
liberty. restraint on the press, as well as the warrantless search of
theTribune offices and whimsical seizure of its articles for
Perhaps, the vital lesson that we must learn from the theorists publication and other materials, are
who studied the various competing political philosophies is declared UNCONSTITUTIONAL.
that, it is possible to grant government the authority to cope
with crises without surrendering the two vital principles of No costs.
constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the SO ORDERED.
government to the governed.158
ANGELINA SANDOVAL-GUTIERREZ
WHEREFORE, the Petitions are partly granted. The Court Associate Justice
rules that PP 1017 is CONSTITUTIONAL insofar as it
constitutes a call by President Gloria Macapagal-Arroyo on the WE CONCUR:
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 ARTEMIO V. PANGANIBAN
promulgated by the President, are Chief Justice
declaredUNCONSTITUTIONAL. In addition, the provision in
PP 1017 declaring national emergency under Section 17,
Article VII of the Constitution isCONSTITUTIONAL, but such (On leave)
declaration does not authorize the President to take over LEONARDO A.
REYNATO S. PUNO
privately-owned public utility or business affected with public QUISUMBING
Associate Justice
interest without prior legislation. Asscociate Justice
MINITA V. CHICO-
CANCIO C. GARCIA
NAZARIO
Asscociate Justice
Associate Justice
CERTIFICATION
ARTEMIO V. PANGANIBAN
Chief Justice
EN BANC
[G.R. No. 149036. April 2, 2002] then Chairperson Harriet O. Demetriou renewed the appointment of
petitioner as Director IV of EID in a “Temporary” capacity. On
February 15, 2001, Commissioner Rufino S.B. Javier renewed again
the appointment of petitioner to the same position in a “Temporary”
MA. J. ANGELINA G. MATIBAG, petitioner, vs. ALFREDO L. capacity.[2]
BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO
On March 22, 2001, President Gloria Macapagal Arroyo
A. TUASON, JR., VELMA J. CINCO, and GIDEON C. DE
appointed, ad interim, Benipayo as COMELEC Chairman,[3] and
GUZMAN in his capacity as Officer-In-Charge, Finance
Borra[4] and Tuason[5] as COMELEC Commissioners, each for a term
Services Department of the Commission on
of seven years and all expiring on February 2, 2008. Benipayo took
Elections, respondents.
his oath of office and assumed the position of COMELEC
Chairman. Borra and Tuason likewise took their oaths of office and
DECISION assumed their positions as COMELEC Commissioners. The Office
CARPIO, J.: of the President submitted to the Commission on Appointments on
May 22, 2001 the ad interim appointments of Benipayo, Borra and
Tuason for confirmation.[6]However, the Commission on
Appointments did not act on said appointments.
The Case
On June 1, 2001, President Arroyo renewed the ad
interim appointments of Benipayo, Borra and Tuason to the same
Before us is an original Petition for Prohibition with prayer for positions and for the same term of seven years, expiring on February
the issuance of a writ of preliminary injunction and a temporary 2, 2008.[7] They took their oaths of office for a second time. The
restraining order under Rule 65 of the 1997 Rules of Civil Office of the President transmitted on June 5, 2001 their
Procedure. Petitioner Ma. J. Angelina G. Matibag (“Petitioner” for appointments to the Commission on Appointments for confirmation.[8]
brevity) questions the constitutionality of the appointment and the
Congress adjourned before the Commission on Appointments
right to hold office of the following: (1) Alfredo L. Benipayo
could act on their appointments. Thus, on June 8, 2001, President
(“Benipayo” for brevity) as Chairman of the Commission on Elections
Macapagal Arroyo renewed again the ad interim appointments of
(“COMELEC” for brevity); and (2) Resurreccion Z. Borra (“Borra” for
Benipayo, Borra and Tuason to the same positions.[9] The Office of
brevity) and Florentino A. Tuason, Jr. (“Tuason” for brevity) as
the President submitted their appointments for confirmation to the
COMELEC Commissioners. Petitioner also questions the legality of
Commission on Appointments.[10] They took their oaths of office
the appointment of Velma J. Cinco[1] (“Cinco” for brevity) as Director
anew.
IV of the COMELEC’s Education and Information Department (“EID”
for brevity). In his capacity as COMELEC Chairman, Benipayo issued a
Memorandum dated April 11, 2001[11] addressed to petitioner as
Director IV of the EID and to Cinco as Director III also of the EID,
The Facts designating Cinco Officer-in-Charge of the EID and reassigning
petitioner to the Law Department. COMELEC EID Commissioner-in-
Charge Mehol K. Sadain objected to petitioner’s reassignment in a
On February 2, 1999, the COMELEC en banc appointed Memorandum dated April 14, 2001[12] addressed to the
petitioner as “Acting Director IV” of the EID. On February 15, 2000, COMELEC en banc.Specifically, Commissioner Sadain questioned
Benipayo’s failure to consult the Commissioner-in-Charge of the EID Chairman and members. Petitioner also assails as illegal her
in the reassignment of petitioner. removal as Director IV of the EID and her reassignment to the Law
Department. Simultaneously, petitioner challenges the designation
On April 16, 2001, petitioner requested Benipayo to reconsider of Cinco as Officer-in-Charge of the EID. Petitioner, moreover,
her relief as Director IV of the EID and her reassignment to the Law questions the legality of the disbursements made by COMELEC
Department.[13] Petitioner cited Civil Service Commission Finance Services Department Officer-in-Charge Gideon C. De
Memorandum Circular No. 7 dated April 10, 2001, reminding heads Guzman to Benipayo, Borra and Tuason by way of salaries and
of government offices that “transfer and detail of employees are other emoluments.
prohibited during the election period beginning January 2 until June
13, 2001.” Benipayo denied her request for reconsideration on April In the meantime, on September 6, 2001, President Macapagal
18, 2001,[14] citing COMELEC Resolution No. 3300 dated November Arroyo renewed once again the ad interim appointments of Benipayo
6, 2000, which states in part: as COMELEC Chairman and Borra and Tuason as Commissioners,
respectively, for a term of seven years expiring on February 2, 2008.
[18]
“NOW, THEREFORE, the Commission on Elections by virtue of the They all took their oaths of office anew.
powers conferred upon it by the Constitution, the Omnibus Election
Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to The Issues
appoint, hire new employees or fill new positions and transfer or
reassign its personnel, when necessary in the effective performance
of its mandated functions during the prohibited period, provided that The issues for resolution of this Court are as follows:
the changes in the assignment of its field personnel within the thirty-
day period before election day shall be effected after due notice and 1. Whether or not the instant petition satisfies all the
hearing.” requirements before this Court may exercise its power
of judicial review in constitutional cases;
Petitioner appealed the denial of her request for reconsideration 2. Whether or not the assumption of office by Benipayo,
to the COMELEC en banc in a Memorandum dated April 23, 2001. Borra and Tuason on the basis of the ad
[15]
Petitioner also filed an administrative and criminal interim appointments issued by the President amounts
complaint[16] with the Law Department[17] against Benipayo, alleging to a temporary appointment prohibited by Section 1 (2),
that her reassignment violated Section 261 (h) of the Omnibus Article IX-C of the Constitution;
Election Code, COMELEC Resolution No. 3258, Civil Service
Memorandum Circular No. 07, s. 001, and other pertinent 3. Assuming that the first ad interim appointments and the
administrative and civil service laws, rules and regulations. first assumption of office by Benipayo, Borra and
Tuason are legal, whether or not the renewal of their ad
During the pendency of her complaint before the Law interim appointments and subsequent assumption of
Department, petitioner filed the instant petition questioning the office to the same positions violate the prohibition on
appointment and the right to remain in office of Benipayo, Borra and reappointment under Section 1 (2), Article IX-C of the
Tuason, as Chairman and Commissioners of the COMELEC, Constitution;
respectively. Petitioner claims that the ad interim appointments
of Benipayo, Borra and Tuason violate the constitutional provisions 4. Whether or not Benipayo’s removal of petitioner from her
on the independence of the COMELEC, as well as on the position as Director IV of the EID and her reassignment
prohibitions on temporary appointments and reappointments of its to the Law Department is illegal and without authority,
having been done without the approval of the petition was filed after the third time that these three respondents
COMELEC as a collegial body; were issued ad interim appointments.
5. Whether or not the Officer-in-Charge of the COMELEC’s Respondents insist that the real issue in this case is the legality
Finance Services Department, in continuing to make of petitioner’s reassignment from the EID to the Law
disbursements in favor of Benipayo, Borra, Tuason and Department. Consequently, the constitutionality of the ad
Cinco, is acting in excess of jurisdiction. interim appointments is not the lis mota of this case.
We are not persuaded.
First Issue: Propriety of Judicial Review Benipayo reassigned petitioner from the EID, where she was
Acting Director, to the Law Department, where she was placed on
detail service.[20] Respondents claim that the reassignment
Respondents assert that the petition fails to satisfy all the four was “pursuant to x x x Benipayo’s authority as Chairman of the
requisites before this Court may exercise its power of judicial review Commission on Elections, and as the Commission’s Chief
in constitutional cases. Out of respect for the acts of the Executive Executive Officer.”[21] Evidently, respondents anchor the legality of
department, which is co-equal with this Court, respondents urge this petitioner’s reassignment on Benipayo’s authority as Chairman of the
Court to refrain from reviewing the constitutionality of thead COMELEC. The real issue then turns on whether or not Benipayo is
interim appointments issued by the President to Benipayo, Borra and the lawful Chairman of the COMELEC. Even if petitioner is only an
Tuason unless all the four requisites are present. These are: (1) the Acting Director of the EID, her reassignment is without legal basis if
existence of an actual and appropriate controversy; (2) a personal Benipayo is not the lawful COMELEC Chairman, an office created by
and substantial interest of the party raising the constitutional issue; the Constitution.
(3) the exercise of the judicial review is pleaded at the earliest
On the other hand, if Benipayo is the lawful COMELEC
opportunity; and (4) the constitutional issue is the lis mota of the
Chairman because he assumed office in accordance with the
case.[19]
Constitution, then petitioner’s reassignment is legal and she has no
Respondents argue that the second, third and fourth requisites cause to complain provided the reassignment is in accordance with
are absent in this case. Respondents maintain that petitioner does the Civil Service Law. Clearly, petitioner has a personal and material
not have a personal and substantial interest in the case because she stake in the resolution of the constitutionality of Benipayo’s
has not sustained a direct injury as a result of the ad assumption of office. Petitioner’s personal and substantial injury, if
interim appointments of Benipayo, Borra and Tuason and their Benipayo is not the lawful COMELEC Chairman, clothes her with the
assumption of office. Respondents point out that petitioner does not requisite locus standi to raise the constitutional issue in this petition.
claim to be lawfully entitled to any of the positions assumed by
Respondents harp on petitioner’s belated act of questioning the
Benipayo, Borra or Tuason. Neither does petitioner claim to be
constitutionality of the ad interim appointments of Benipayo, Borra
directly injured by the appointments of these three respondents.
and Tuason. Petitioner filed the instant petition only on August 3,
Respondents also contend that petitioner failed to question the 2001, when the first ad interim appointments were issued as early as
constitutionality of the ad interim appointments at the earliest March 22, 2001. However, it is not the date of filing of the petition
opportunity. Petitioner filed the petition only on August 3, 2001 that determines whether the constitutional issue was raised at the
despite the fact that the ad interim appointments of Benipayo, Borra earliest opportunity. The earliest opportunity to raise a constitutional
and Tuason were issued as early as March 22, 2001. Moreover, the issue is to raise it in the pleadings before a competent court that can
resolve the same, such that, “if it is not raised in the pleadings, it
cannot be considered at the trial, and, if not considered at the trial, it “The Chairman and the Commissioners shall be appointed by the
cannot be considered on appeal.”[22] Petitioner questioned the President with the consent of the Commission on Appointments for a
constitutionality of the ad interim appointments of Benipayo, Borra term of seven years without reappointment. Of those first appointed,
and Tuason when she filed her petition before this Court, which is three Members shall hold office for seven years, two Members for
the earliest opportunity for pleading the constitutional issue before a five years, and the last Members for three years, without
competent body. Furthermore, this Court may determine, in the reappointment. Appointment to any vacancy shall be only for the
exercise of sound discretion, the time when a constitutional issue unexpired term of the predecessor. In no case shall any Member
may be passed upon.[23] There is no doubt petitioner raised the be appointed or designated in a temporary or acting
constitutional issue on time. capacity.” (Emphasis supplied)
Moreover, the legality of petitioner’s reassignment hinges on the
constitutionality of Benipayo’s ad interim appointment and Petitioner posits the view that an ad interim appointment can be
assumption of office. Unless the constitutionality of Benipayo’s ad withdrawn or revoked by the President at her pleasure, and can even
interim appointment and assumption of office is resolved, the legality be disapproved or simply by-passed by the Commission on
of petitioner’s reassignment from the EID to the Law Department Appointments. For this reason, petitioner claims that an ad
cannot be determined. Clearly, the lis mota of this case is the very interim appointment is temporary in character and consequently
constitutional issue raised by petitioner. prohibited by the last sentence of Section 1 (2), Article IX-C of the
Constitution.
In any event, the issue raised by petitioner is of paramount
importance to the public. The legality of the directives and decisions Based on petitioner’s theory, there can be no ad
made by the COMELEC in the conduct of the May 14, 2001 national interim appointment to the COMELEC or to the other two
elections may be put in doubt if the constitutional issue raised by constitutional commissions, namely the Civil Service Commission
petitioner is left unresolved. In keeping with this Court’s duty to and the Commission on Audit. The last sentence of Section 1 (2),
determine whether other agencies of government have remained Article IX-C of the Constitution is also found in Article IX-B and
within the limits of the Constitution and have not abused the Article IX-D providing for the creation of the Civil Service
discretion given them, this Court may even brush aside technicalities Commission and the Commission on Audit, respectively. Petitioner
of procedure and resolve any constitutional issue raised.[24] Here the interprets the last sentence of Section 1 (2) of Article IX-C to mean
petitioner has complied with all the requisite technicalities. Moreover, that the ad interim appointee cannot assume office until his
public interest requires the resolution of the constitutional issue appointment is confirmed by the Commission on Appointments for
raised by petitioner. only then does his appointment become permanent and no longer
temporary in character.
The rationale behind petitioner’s theory is that only an appointee
Second Issue: The Nature of an Ad Interim Appointment who is confirmed by the Commission on Appointments can
guarantee the independence of the COMELEC. A confirmed
appointee is beyond the influence of the President or members of the
Petitioner argues that an ad interim appointment to the Commission on Appointments since his appointment can no longer
COMELEC is a temporary appointment that is prohibited by Section be recalled or disapproved. Prior to his confirmation, the appointee is
1 (2), Article IX-C of the Constitution, which provides as follows: at the mercy of both the appointing and confirming powers since his
appointment can be terminated at any time for any cause. In the
words of petitioner, a Sword of Damocles hangs over the head of
every appointee whose confirmation is pending with the Commission reason other than that its provisional period has expired. Said
on Appointments. appointment is of course distinguishable from an ‘acting’
appointment which is merely temporary, good until another
We find petitioner’s argument without merit. permanent appointment is issued.” (Emphasis supplied)
An ad interim appointment is a permanent appointment because
it takes effect immediately and can no longer be withdrawn by the The Constitution imposes no condition on the effectivity of an ad
President once the appointee has qualified into office. The fact that it interim appointment, and thus an ad interim appointment takes effect
is subject to confirmation by the Commission on Appointments does immediately. The appointee can at once assume office and
not alter its permanent character. The Constitution itself makes exercise, as a de jure officer, all the powers pertaining to the
an ad interim appointment permanent in character by making it office. In Pacete vs. Secretary of the Commission on Appointments,
[26]
effective until disapproved by the Commission on Appointments or this Court elaborated on the nature of an ad interim appointment
until the next adjournment of Congress. The second paragraph of as follows:
Section 16, Article VII of the Constitution provides as follows:
“A distinction is thus made between the exercise of such presidential
“The President shall have the power to make appointments during prerogative requiring confirmation by the Commission on
the recess of the Congress, whether voluntary or compulsory, but Appointments when Congress is in session and when it is in recess.
such appointments shall beeffective only until disapproval by the In the former, the President nominates, and only upon the consent of
Commission on Appointments or until the next adjournment of the the Commission on Appointments may the person thus named
Congress.” (Emphasis supplied) assume office. It is not so with reference to ad interim
appointments. It takes effect at once. The individual chosen
Thus, the ad interim appointment remains effective until such may thus qualify and perform his function without loss of
disapproval or next adjournment, signifying that it can no longer be time. His title to such office is complete. In the language of the
withdrawn or revoked by the President. The fear that the President Constitution, the appointment is effective ‘until disapproval by the
can withdraw or revoke at any time and for any reason an ad Commission on Appointments or until the next adjournment of the
interim appointment is utterly without basis. Congress.’”
More than half a century ago, this Court had already ruled that Petitioner cites Black’s Law Dictionary which defines the term
an ad interim appointment is permanent in character. In Summers “ad interim” to mean “in the meantime” or “for the time
vs. Ozaeta,[25] decided on October 25, 1948, we held that: being.” Hence, petitioner argues that anad interim appointment is
undoubtedly temporary in character. This argument is not new and
“x x x an ad interim appointment is one made in pursuance of was answered by this Court in Pamantasan ng Lungsod ng
paragraph (4), Section 10, Article VII of the Constitution, which Maynilavs. Intermediate Appellate Court,[27] where we explained that:
provides that the ‘President shall have the power to make
appointments during the recess of the Congress, but such “x x x From the arguments, it is easy to see why the petitioner should
appointments shall be effective only until disapproval by the experience difficulty in understanding the situation. Private
Commission on Appointments or until the next adjournment of the respondent had been extended several ‘ad interim’ appointments
Congress.’ It is an appointment permanent in nature, and the which petitioner mistakenly understands as appointments temporary
circumstance that it is subject to confirmation by the in nature. Perhaps, it is the literal translation of the word ‘ad interim’
Commission on Appointments does not alter its permanent which creates such belief. The term is defined by Black to mean “in
character. An ad interim appointment is disapproved certainly for a
the meantime” or “for the time being”. Thus, an officer ad interim is An ad interim appointee who has qualified and assumed office
one appointed to fill a vacancy, or to discharge the duties of the becomes at that moment a government employee and therefore part
office during the absence or temporary incapacity of its regular of the civil service. He enjoys the constitutional protection that ”[n]o
incumbent (Black’s Law Dictionary, Revised Fourth Edition, officer or employee in the civil service shall be removed or
1978). But such is not the meaning nor the use intended in the suspended except for cause provided by law.”[29] Thus, anad
context of Philippine law. In referring to Dr. Esteban’s appointments, interim appointment becomes complete and irrevocable once the
the term is not descriptive of the nature of the appointments given to appointee has qualified into office. The withdrawal or revocation of
him. Rather, it is used to denote the manner in which said an ad interimappointment is possible only if it is communicated to the
appointments were made, that is, done by the President of the appointee before the moment he qualifies, and any withdrawal or
Pamantasan in the meantime, while the Board of Regents, revocation thereafter is tantamount to removal from office.[30] Once
which is originally vested by the University Charter with the an appointee has qualified, he acquires a legal right to the office
power of appointment, is unable to act. x x x.” (Emphasis which is protected not only by statute but also by the
supplied) Constitution. He can only be removed for cause, after notice and
hearing, consistent with the requirements of due process.
Thus, the term “ad interim appointment”, as used in letters of An ad interim appointment can be terminated for two causes
appointment signed by the President, means a permanent specified in the Constitution. The first cause is the disapproval of
appointment made by the President in the meantime that his ad interim appointment by the Commission on
Congress is in recess. It does not mean a temporary appointment Appointments. The second cause is the adjournment of Congress
that can be withdrawn or revoked at any time. The term, although without the Commission on Appointments acting on his appointment.
not found in the text of the Constitution, has acquired a definite legal These two causes are resolutory conditions expressly imposed by
meaning under Philippine jurisprudence. The Court had again the Constitution on all ad interim appointments. These resolutory
occasion to explain the nature of anad interim appointment in the conditions constitute, in effect, a Sword of Damocles over the heads
more recent case of Marohombsar vs. Court of Appeals,[28] where the of ad interim appointees. No one, however, can complain because it
Court stated: is the Constitution itself that places the Sword of Damocles over the
heads of the ad interim appointees.
“We have already mentioned that an ad interim appointment is not
descriptive of the nature of the appointment, that is, it is not While an ad interim appointment is permanent and irrevocable
indicative of whether the appointment is temporary or in an acting except as provided by law, an appointment or designation in a
capacity, rather it denotes the manner in which the appointment was temporary or acting capacity can be withdrawn or revoked at the
made. In the instant case, the appointment extended to private pleasure of the appointing power.[31] A temporary or acting appointee
respondent by then MSU President Alonto, Jr. was issued without does not enjoy any security of tenure, no matter how briefly. This is
condition nor limitation as to tenure. The permanent status of private the kind of appointment that the Constitution prohibits the President
respondent’s appointment as Executive Assistant II was recognized from making to the three independent constitutional commissions,
and attested to by the Civil Service Commission Regional Office No. including the COMELEC. Thus, in Brillantes vs. Yorac,[32] this Court
12. Petitioner’s submission that private respondent’s ad interim struck down
appointment is synonymous with a temporary appointment as unconstitutional the designation by then President Corazon
which could be validly terminated at any time is clearly Aquino of Associate Commissioner Haydee Yorac as Acting
untenable. Ad interim appointments are permanent but their Chairperson of the COMELEC. This Court ruled that:
terms are only until the Board disapproves them.” (Emphasis
supplied)
“A designation as Acting Chairman is by its very terms in Nacionalista Party vs. Bautista.[35] The ad interim appointments of
essentially temporary and therefore revocable at will. No Benipayo, Borra and Tuason are expressly allowed by the
cause need be established to justify its Constitution which authorizes the President, during the recess of
revocation. Assuming its validity, the designation of the Congress, to make appointments that take effect immediately.
respondent as Acting Chairman of the Commission on
Elections may be withdrawn by the President of the While the Constitution mandates that the COMELEC “shall be
Philippines at any time and for whatever reason she sees independent”[36], this provision should be harmonized with the
fit. It is doubtful if the respondent, having accepted such President’s power to extend ad interim appointments. To hold that
designation, will not be estopped from challenging its the independence of the COMELEC requires the Commission on
withdrawal. Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the President’s power to
make ad interim appointments. This is contrary to the rule on
xxx statutory construction to give meaning and effect to every provision
of the law. It will also run counter to the clear intent of the framers of
The Constitution provides for many safeguards to the the Constitution.
independence of the Commission on Elections, foremost
among which is the security of tenure of its The original draft of Section 16, Article VII of the Constitution -
members. That guarantee is not available to the on the nomination of officers subject to confirmation by the
respondent as Acting Chairman of the Commission on Commission on Appointments - did not provide for ad
Elections by designation of the President of the interim appointments. The original intention of the framers of the
Philippines.” Constitution was to do away with ad interim appointments because
the plan was for Congress to remain in session throughout the year
Earlier, in Nacionalista Party vs. Bautista,[33] a case decided except for a brief 30-day compulsory recess. However, because of
under the 1935 Constitution, which did not have a provision the need to avoid disruptions in essential government services, the
prohibiting temporary or acting appointments to the COMELEC, this framers of the Constitution thought it wise to reinstate the provisions
Court nevertheless declared unconstitutional the designation of the of the 1935 Constitution on ad interim appointments. The following
Solicitor General as acting member of the COMELEC. This Court discussion during the deliberations of the Constitutional Commission
ruled that the designation of an acting Commissioner would elucidates this:
undermine the independence of the COMELEC and hence violate
the Constitution. We declared then: “It would be more in keeping “FR. BERNAS: X x x our compulsory recess now is only 30 days. So
with the intent, purpose and aim of the framers of the Constitution to under such circumstances, is it necessary to provide for ad
appoint a permanent Commissioner than to designate one to act interim appointments? Perhaps there should be a little discussion on
temporarily.” (Emphasis supplied) that.
In the instant case, the President did in fact appoint permanent xxx
Commissioners to fill the vacancies in the COMELEC, subject only to
confirmation by the Commission on Appointments. Benipayo, Borra
and Tuason were extended permanent appointments during the MS. AQUINO: My concern is that unless this problem is
recess of Congress. They were not appointed or designated in a addressed, this might present problems in terms of anticipating
temporary or acting capacity, unlike Commissioner Haydee Yorac interruption of government business, considering that we are not
in Brillantes vs. Yorac[34] and Solicitor General Felix Bautista certain of the length of involuntary recess or adjournment of the
Congress. We are certain, however, of the involuntary adjournment “Now, why is the lifetime of ad interim appointments so
of the Congress which is 30 days, but we cannot leave to conjecture limited? Because, if they expired before the session of
the matter of involuntary recess. Congress, the evil sought to be avoided – interruption in the
discharge of essential functions – may take place. Because the
FR. BERNAS: That is correct, but we are trying to look for a formula. same evil would result if the appointments ceased to be effective
I wonder if the Commissioner has a formula x x x. during the session of Congress and before its adjournment. Upon
the other hand, once Congress has adjourned, the evil
aforementioned may easily be conjured by the issuance of other ad
xxx
interim appointments or reappointments.” (Emphasis supplied)
MR. BENGZON: Madam President, apropos of the matter raised by
Indeed, the timely application of the last sentence of Section 16,
Commissioner Aquino and after conferring with the Committee,
Article VII of the Constitution barely avoided the interruption of
Commissioner Aquino and I propose the following amendment as the
essential government services in the May 2001 national
last paragraph of Section 16, the wordings of which are in the 1935
elections. Following the decision of this Court in Gaminde vs.
Constitution: THE PRESIDENT SHALL HAVE THE POWER TO
Commission on Appointments,[39] promulgated on December 13,
MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS
2000, the terms of office of constitutional officers first appointed
WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH
under the Constitution would have to be counted starting February 2,
APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL
1987, the date of ratification of the Constitution, regardless of the
DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR
date of their actual appointment. By this reckoning, the terms of
UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS.
office of three Commissioners of the COMELEC, including the
Chairman, would end on February 2, 2001.[40]
This is otherwise called the ad interim appointments.
Then COMELEC Chairperson Harriet O. Demetriou was
xxx appointed only on January 11, 2000 to serve, pursuant to her
appointment papers, until February 15, 2002,[41] the original expiry
date of the term of her predecessor, Justice Bernardo P. Pardo, who
THE PRESIDENT: Is there any objection to the proposed
was elevated to this Court. The original expiry date of the term of
amendment of Commissioners Aquino and Bengzon, adding a
Commissioner Teresita Dy-Liacco Flores was also February 15,
paragraph to the last paragraph of Section 16? (Silence) The Chair
2002, while that of Commissioner Julio F. Desamito was November
hears none; the amendment is approved.”[37] (Emphasis supplied)
3, 2001.[42] The original expiry dates of the terms of office of
Chairperson Demetriou and Commissioners Flores and Desamito
Clearly, the reinstatement in the present Constitution of the ad were therefore supposed to fall after the May 2001
interim appointing power of the President was for the purpose of elections. Suddenly and unexpectedly, because of
avoiding interruptions in vital government services that otherwise the Gaminde ruling, there were three vacancies in the seven-person
would result from prolonged vacancies in government offices, COMELEC, with national elections looming less than three and one-
including the three constitutional commissions. In his concurring half months away. To their credit, Chairperson Demetriou and
opinion in Guevara vs. Inocentes,[38] decided under the 1935 Commissioner Flores vacated their offices on February 2, 2001 and
Constitution, Justice Roberto Concepcion, Jr. explained the rationale did not question any more before this Court the applicability of
behind ad interimappointments in this manner: the Gaminde ruling to their own situation.
In a Manifestation[43] dated December 28, 2000 filed with this paragraph of Section 16, Article VII of the Constitution. This power
Court in the Gaminde case, Chairperson Demetriou stated that she to make ad interim appointments is lodged in the President to be
was vacating her office on February 2, 2001, as she believed any exercised by her in her sound judgment. Under the second
delay in choosing her successor might create a “constitutional crisis” paragraph of Section 16, Article VII of the Constitution, the President
in view of the proximity of the May 2001 national can choose either of two modes in appointing officials who are
elections. Commissioner Desamito chose to file a petition for subject to confirmation by the Commission on Appointments. First,
intervention[44] in the Gaminde case but this Court denied the while Congress is in session, the President may nominate the
intervention. Thus, Commissioner Desamito also vacated his office prospective appointee, and pending consent of the Commission on
on February 2, 2001. Appointments, the nominee cannot qualify and assume
office. Second, during the recess of Congress, the President may
During an election year, Congress normally goes on voluntary extend an ad interim appointment which allows the appointee to
recess between February and June considering that many of the immediately qualify and assume office.
members of the House of Representatives and the Senate run for re-
election. In 2001, the Eleventh Congress adjourned from January 9, Whether the President chooses to nominate the prospective
2001 to June 3, 2001.[45] Concededly, there was no more time for appointee or extend an ad interim appointment is a matter within the
Benipayo, Borra and Tuason, who were originally extended ad prerogative of the President because the Constitution grants her that
interim appointments only on March 22, 2001, to be confirmed by the power. This Court cannot inquire into the propriety of the choice
Commission on Appointments before the May 14, 2001 elections. made by the President in the exercise of her constitutional power,
absent grave abuse of discretion amounting to lack or excess of
If Benipayo, Borra and Tuason were not extended ad jurisdiction on her part, which has not been shown in the instant
interim appointments to fill up the three vacancies in the COMELEC, case.
there would only have been one division functioning in the
COMELEC instead of two during the May 2001 elections. The issuance by Presidents of ad interim appointments to the
Considering that the Constitution requires that “all x x x election COMELEC is a long-standing practice. Former President Corazon
cases shall be heard and decided in division”,[46] the remaining one Aquino issued an ad interimappointment to Commissioner Alfredo E.
division would have been swamped with election cases. Moreover, Abueg.[47] Former President Fidel V. Ramos extended ad
since under the Constitution motions for reconsideration “shall be interim appointments to Commissioners Julio F. Desamito, Japal M.
decided by the Commission en banc”, the mere absence of one of Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.
[48]
the four remaining members would have prevented a quorum, a less Former President Joseph Estrada also extended ad
than ideal situation considering that the Commissioners are expected interim appointments to Commissioners Abdul Gani M.
to travel around the country before, during and after the Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and Ralph
elections. There was a great probability that disruptions in the C. Lantion.[49]
conduct of the May 2001 elections could occur because of the three
vacancies in the COMELEC. The successful conduct of the May The President’s power to extend ad interim appointments may
2001 national elections, right after the tumultuous EDSA II and indeed briefly put the appointee at the mercy of both the appointing
EDSA III events, was certainly essential in safeguarding and and confirming powers. This situation, however, is only for a short
strengthening our democracy. period - from the time of issuance of the ad interim appointment until
the Commission on Appointments gives or withholds its
Evidently, the exercise by the President in the instant case of consent. The Constitution itself sanctions this situation, as a trade-
her constitutional power to make ad interim appointments prevented off against the evil of disruptions in vital government services. This
the occurrence of the very evil sought to be avoided by the second is also part of the check-and-balance under the separation of
powers, as a trade-off against the evil of granting the President term of seven years without reappointment. Of those first
absolute and sole power to appoint. The Constitution has wisely appointed, three Members shall hold office for seven years, two
subjected the President’s appointing power to the checking power of Members for five years, and the last members for three
the legislature. years,without reappointment. X x x.” (Emphasis supplied)
This situation, however, does not compromise the
independence of the COMELEC as a constitutional body. The Petitioner theorizes that once an ad interim appointee is by-passed
vacancies in the COMELEC are precisely staggered to insure that by the Commission on Appointments, his ad interim appointment can
the majority of its members hold confirmed appointments, and not no longer be renewed because this will violate Section 1 (2), Article
one President will appoint all the COMELEC members.[50] In the IX-C of the Constitution which prohibits reappointments. Petitioner
instant case, the Commission on Appointments had long confirmed asserts that this is particularly true to permanent appointees who
four[51] of the incumbent COMELEC members, comprising a majority, have assumed office, which is the situation of Benipayo, Borra and
who could now be removed from office only by impeachment. The Tuason if their ad interim appointments are deemed permanent in
special constitutional safeguards that insure the independence of the character.
COMELEC remain in place.[52] The COMELEC enjoys fiscal There is no dispute that an ad interim appointee disapproved by
autonomy, appoints its own officials and employees, and the Commission on Appointments can no longer be extended a new
promulgates its own rules on pleadings and practice. Moreover, the appointment. The disapproval is a final decision of the Commission
salaries of COMELEC members cannot be decreased during their on Appointments in the exercise of its checking power on the
tenure. appointing authority of the President. The disapproval is a decision
In fine, we rule that the ad interim appointments extended by on the merits, being a refusal by the Commission on Appointments to
the President to Benipayo, Borra and Tuason, as COMELEC give its consent after deliberating on the qualifications of the
Chairman and Commissioners, respectively, do not constitute appointee. Since the Constitution does not provide for any appeal
temporary or acting appointments prohibited by Section 1 (2), Article from such decision, the disapproval is final and binding on the
IX-C of the Constitution. appointee as well as on the appointing power. In this instance, the
President can no longer renew the appointment not because of the
constitutional prohibition on reappointment, but because of a final
decision by the Commission on Appointments to withhold its consent
Third Issue: The Constitutionality of Renewals of Appointments to the appointment.
An ad interim appointment that is by-passed because of lack of
Petitioner also agues that assuming the first ad time or failure of the Commission on Appointments to organize is
interim appointments and the first assumption of office by Benipayo, another matter. A by-passed appointment is one that has not been
Borra and Tuason are constitutional, the renewal of the their ad finally acted upon on the merits by the Commission on Appointments
interim appointments and their subsequent assumption of office to at the close of the session of Congress. There is no final decision by
the same positions violate the prohibition on reappointment under the Commission on Appointments to give or withhold its consent to
Section 1 (2), Article IX-C of the Constitution, which provides as the appointment as required by the Constitution. Absent such
follows: decision, the President is free to renew the ad interim appointment of
a by-passed appointee. This is recognized in Section 17 of the Rules
“The Chairman and the Commissioners shall be appointed by the of the Commission on Appointments, which provides as follows:
President with the consent of the Commission on Appointments for a
“Section 17. Unacted Nominations or Appointments Returned to the jurisprudence under the 1935 Constitution governing ad
President. Nominations or appointments submitted by the President interim appointments by the President is doubtless applicable to the
of the Philippines which are not finally acted upon at the close of the present Constitution. The established practice under the present
session of Congress shall be returned to the President and, unless Constitution is that the President can renew the appointments of by-
new nominations or appointments are made, shall not again be passed ad interimappointees. This is a continuation of the well-
considered by the Commission.” (Emphasis supplied) recognized practice under the 1935 Constitution, interrupted only by
the 1973 Constitution which did not provide for a Commission on
Hence, under the Rules of the Commission on Appointments, a by- Appointments but vested sole appointing power in the President.
passed appointment can be considered again if the President The prohibition on reappointment in Section 1 (2), Article IX-C of
renews the appointment. the Constitution applies neither to disapproved nor by-passed ad
It is well settled in this jurisdiction that the President can renew interim appointments. A disapproved ad interim appointment cannot
the ad interim appointments of by-passed appointees. Justice be revived by another ad interim appointment because the
Roberto Concepcion, Jr. lucidly explained in his concurring opinion disapproval is final under Section 16, Article VII of the Constitution,
in Guevara vs. Inocentes[53] why by-passed ad interim appointees and not because a reappointment is prohibited under Section 1 (2),
could be extended new appointments, thus: Article IX-C of the Constitution. A by-passed ad
interim appointment can be revived by a new ad interim appointment
because there is no final disapproval under Section 16, Article VII of
“In short, an ad interim appointment ceases to be effective upon
the Constitution, and such new appointment will not result in the
disapproval by the Commission, because the incumbent can not
appointee serving beyond the fixed term of seven years.
continue holding office over the positive objection of the
Commission. It ceases, also, upon “the next adjournment of the Section 1 (2), Article IX-C of the Constitution provides that “[t]he
Congress”, simply because the President may then issue new Chairman and the Commissioners shall be appointed x x x for
appointments - not because of implied disapproval of the a term of seven years without reappointment.” (Emphasis
Commission deduced from its inaction during the session of supplied) There are four situations where this provision will
Congress, for, under the Constitution, the Commission may affect apply. The first situation is where an ad interim appointee to the
adversely the interim appointments only by action, never by COMELEC, after confirmation by the Commission on Appointments,
omission. If the adjournment of Congress were an implied serves his full seven-year term. Such person cannot be reappointed
disapproval of ad interim appointments made prior thereto, then the to the COMELEC, whether as a member or as a chairman, because
President could no longer appoint those so by-passed by the he will then be actually serving more than seven years. The second
Commission. But, the fact is that the President may reappoint situation is where the appointee, after confirmation, serves a part of
them, thus clearly indicating that the reason for said termination of his term and then resigns before his seven-year term of office
the ad interim appointments is not the disapproval thereof allegedly ends. Such person cannot be reappointed, whether as a member or
inferred from said omission of the Commission, but the circumstance as a chair, to a vacancy arising from retirement because a
that upon said adjournment of the Congress, the President is reappointment will result in the appointee also serving more than
free to make ad interim appointments or seven years. The third situation is where the appointee is confirmed
reappointments.” (Emphasis supplied) to serve the unexpired term of someone who died or resigned, and
the appointee completes the unexpired term. Such person cannot
Guevara was decided under the 1935 Constitution from where the be reappointed, whether as a member or chair, to a vacancy arising
second paragraph of Section 16, Article VII of the present from retirement because a reappointment will result in the appointee
Constitution on ad interimappointments was lifted verbatim.[54] The also serving more than seven years.
The fourth situation is where the appointee has previously all.” This was the interpretation despite the express provision in the
served a term of less than seven years, and a vacancy arises from 1935 Constitution that a COMELEC member “shall hold office for a
death or resignation. Even if it will not result in his serving more than term of nine years and may not be reappointed.”
seven years, a reappointment of such person to serve an unexpired
term is also prohibited because his situation will be similar to those To foreclose this interpretation, the phrase “without
appointed under the second sentence of Section 1 (2), Article IX-C of reappointment” appears twice in Section 1 (2), Article IX-C of the
the Constitution. This provision refers to the first appointees under present Constitution. The first phrase prohibits reappointment of any
the Constitution whose terms of office are less than seven years, but person previously appointed for a term of seven years. The second
are barred from ever being reappointed under any situation. Not phrase prohibits reappointment of any person previously appointed
one of these four situations applies to the case of Benipayo, for a term of five or three years pursuant to the first set of appointees
Borra or Tuason. under the Constitution. In either case, it does not matter if the
person previously appointed completes his term of office for the
The framers of the Constitution made it quite clear that any intention is to prohibit any reappointment of any kind.
person who has served any term of office as COMELEC member –
whether for a full term of seven years, a truncated term of five or However, an ad interim appointment that has lapsed by inaction
three years, or even for an unexpired term of any length of time – of the Commission on Appointments does not constitute a term of
can no longer be reappointed to the COMELEC. Commissioner Foz office. The period from the time the ad interim appointment is made
succinctly explained this intent in this manner: to the time it lapses is neither a fixed term nor an unexpired term. To
hold otherwise would mean that the President by his unilateral action
could start and complete the running of a term of office in the
“MR. FOZ. But there is the argument made in the COMELEC without the consent of the Commission on
concurring opinion of Justice Angelo Bautista in the case Appointments. This interpretation renders inutile the confirming
of Visarra vs. Miraflor, to the effect that the prohibition on power of the Commission on Appointments.
reappointment applies only when the term or tenure is for
seven years. But in cases where the appointee serves only The phrase “without reappointment” applies only to one who
for less than seven years, he would be entitled to has been appointed by the President and confirmed by the
reappointment. Unless we put the qualifying words Commission on Appointments, whether or not such person
“without reappointment” in the case of those completes his term of office. There must be a confirmation by the
appointed, then it is possible that an interpretation Commission on Appointments of the previous appointment before
could be made later on their case, they can still be the prohibition on reappointment can apply. To hold otherwise will
reappointed to serve for a total of seven years. lead to absurdities and negate the President’s power to make ad
interim appointments.
Precisely, we are foreclosing that possibility by
In the great majority of cases, the Commission on Appointments
making it clear that even in the case of those first
usually fails to act, for lack of time, on the ad interim appointments
appointed under the Constitution, no reappointment
first issued to appointees. If such ad interim appointments can no
can be made.”[55] (Emphasis supplied)
longer be renewed, the President will certainly hesitate to make ad
interim appointments because most of her appointees will effectively
In Visarra vs. Miraflor,[56] Justice Angelo Bautista, in his concurring be disapproved by mere inaction of the Commission on
opinion, quoted Nacionalista vs. De Vera[57] that a “[r]eappointment is Appointments. This will nullify the constitutional power of the
not prohibited when a Commissioner has held office only for, say, President to make ad interimappointments, a power intended to
three or six years, provided his term will not exceed nine years in avoid disruptions in vital government services. This Court cannot
subscribe to a proposition that will wreak havoc on vital government “MR. SUAREZ: These are only clarificatory questions,
services. Madam President. May I call the sponsor’s attention, first of
all, to Section 2 (2) on the Civil Service Commission
The prohibition on reappointment is common to the three wherein it is stated: “In no case shall any Member be
constitutional commissions. The framers of the present Constitution appointed in a temporary or acting capacity.” I detect in the
prohibited reappointments for two reasons. The first is to prevent a Committee’s proposed resolutions a constitutional
second appointment for those who have been previously appointed hangover, if I may use the term, from the past
and confirmed even if they served for less than seven years. The administration. Am I correct in concluding that the reason
second is to insure that the members of the three constitutional the Committee introduced this particular provision is to
commissions do not serve beyond the fixed term of seven years. As avoid an incident similar to the case of the Honorable
reported in the Journal of the Constitutional Commission, Francisco Tantuico who was appointed in an acting
Commissioner Vicente B. Foz, who sponsored[58]the proposed capacity as Chairman of the Commission on Audit for about
articles on the three constitutional commissions, outlined the four 5 years from 1975 until 1980, and then in 1980, was
important features of the proposed articles, to wit: appointed as Chairman with a tenure of another 7
years. So, if we follow that appointment to (its) logical
“Mr. Foz stated that the Committee had introduced basic conclusion, he occupied that position for about 12 years in
changes in the common provision affecting the three violation of the Constitution?
Constitutional Commissions, and which are: 1) fiscal
autonomy which provides (that) appropriations shall be MR. FOZ: It is only one of the considerations. Another is
automatically and regularly released to the Commission in really to make sure that any member who is appointed
the same manner (as) provided for the Judiciary; 2) fixed to any of the commissions does not serve beyond 7
term of office without reappointment on a staggered years.”[60] (Emphasis supplied)
basis to ensure continuity of functions and to minimize the
opportunity of the President to appoint all the members
during his incumbency; 3) prohibition to decrease salaries Commissioner Christian Monsod further clarified the prohibition
of the members of the Commissions during their term of on reappointment in this manner:
office; and 4) appointments of members would not require
confirmation.”[59] (Emphasis supplied) "MR. MONSOD. If the (Commissioner) will read the whole
Article, she will notice that there is no reappointment of
There were two important amendments subsequently made by any kind and, therefore as a whole there is no way that
the Constitutional Commission to these four features. First, as somebody can serve for more than seven years. The
discussed earlier, the framers of the Constitution decided to require purpose of the last sentence is to make sure that this
confirmation by the Commission on Appointments of all does not happen by including in the appointment both
appointments to the constitutional commissions. Second, the temporary and acting capacities."[61] (Emphasis supplied)
framers decided to strengthen further the prohibition on serving
beyond the fixed seven-year term, in the light of a former chair of the Plainly, the prohibition on reappointment is intended to insure that
Commission on Audit remaining in office for 12 years despite his there will be no reappointment of any kind. On the other hand, the
fixed term of seven years. The following exchange in the prohibition on temporary or acting appointments is intended to
deliberations of the Constitutional Commission is instructive: prevent any circumvention of the prohibition on reappointment that
may result in an appointee’s total term of office exceeding seven
years. The evils sought to be avoided by the twin prohibitions are THE PRESIDING OFFICER (Mr. Trenas): Is there any
very specific - reappointment of any kind and exceeding one’s term objection? (Silence) The Chair hears none; the amendment is
in office beyond the maximum period of seven years. approved.”[62]
Not contented with these ironclad twin prohibitions, the framers
of the Constitution tightened even further the screws on those who The ad interim appointments and subsequent renewals of
might wish to extend their terms of office. Thus, the word appointments of Benipayo, Borra and Tuason do not violate the
“designated” was inserted to plug any loophole that might be prohibition on reappointments because there were no previous
exploited by violators of the Constitution, as shown in the following appointments that were confirmed by the Commission on
discussion in the Constitutional Commission: Appointments. A reappointment presupposes a previous confirmed
appointment. The same ad interim appointments and renewals of
appointments will also not breach the seven-year term limit
“MR. DE LOS REYES: On line 32, between the words “appointed” because all the appointments and renewals of appointments of
and “in”, I propose to insert the words OR DESIGNATED so that the Benipayo, Borra and Tuason are for a fixed term expiring on
whole sentence will read: “In no case shall any Member be February 2, 2008.[63] Any delay in their confirmation will not extend
appointed OR DESIGNATED in a temporary or acting capacity.” the expiry date of their terms of office. Consequently, there is no
danger whatsoever that the renewal of the ad interim appointments
THE PRESIDING OFFICER (Mr. Trenas): What does the of these three respondents will result in any of the evils intended to
Committee say? be exorcised by the twin prohibitions in the Constitution. The
continuing renewal of the ad interim appointment of these three
MR. FOZ: But it changes the meaning of this sentence. The respondents, for so long as their terms of office expire on February
sentence reads: “In no case shall any Member be appointed in a 2, 2008, does not violate the prohibition on reappointments in
temporary or acting capacity.” Section 1 (2), Article IX-C of the Constitution.
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this
amendment is that some lawyers make a distinction between an Fourth Issue: Respondent Benipayo’s Authority to Reassign
appointment and a designation. The Gentleman will recall that in the Petitioner
case of Commissioner on Audit Tantuico, I think his term exceeded
the constitutional limit but the Minister of Justice opined that it did not
because he was only designated during the time that he acted as Petitioner claims that Benipayo has no authority to remove her
Commissioner on Audit. So, in order to erase that distinction as Director IV of the EID and reassign her to the Law
between appointment and designation, we should specifically place Department. Petitioner further argues that only the COMELEC,
the word so that there will be no more ambiguity. “In no case shall acting as a collegial body, can authorize such
any Member be appointed OR DESIGNATED in a temporary or reassignment. Moreover, petitioner maintains that a reassignment
acting capacity.” without her consent amounts to removal from office without due
process and therefore illegal.
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
Petitioner’s posturing will hold water if Benipayo does not
possess any color of title to the office of Chairman of the
MR. DE LOS REYES: Thank you. COMELEC. We have ruled, however, that Benipayo is the de
jure COMELEC Chairman, and consequently he has full authority to
exercise all the powers of that office for so long as his ad ‘It is settled that a permanent appointment can be issued only ‘to a
interim appointment remains effective. Under Section 7 (4), person who meets all the requirements for the position to which he is
Chapter 2, Subtitle C, Book V of the Revised Administrative Code, being appointed, including the appropriate eligibility prescribed.’
the Chairman of the COMELEC is vested with the following power: Achacoso did not. At best, therefore, his appointment could be
regarded only as temporary. And being so, it could be withdrawn at
“Section 7. Chairman as Executive Officer; Powers and Duties. The will by the appointing authority and ‘at a moment’s notice’,
Chairman, who shall be the Chief Executive Officer of the conformably to established jurisprudence x x x.
Commission, shall:
The mere fact that a position belongs to the Career Service does not
xxx automatically confer security of tenure on its occupant even if he
does not possess the required qualifications. Such right will have to
depend on the nature of his appointment, which in turn depends on
(4) Make temporary assignments, rotate and transfer
his eligibility or lack of it. A person who does not have the requisite
personnel in accordance with the provisions of the Civil Service
qualifications for the position cannot be appointed to it in the first
Law.” (Emphasis supplied)
place, or as an exception to the rule, may be appointed to it merely in
an acting capacity in the absence of appropriate eligibles. The
The Chairman, as the Chief Executive of the COMELEC, is appointment extended to him cannot be regarded as permanent
expressly empowered on his own authority to transfer or reassign even if it may be so designated x x x.’”
COMELEC personnel in accordance with the Civil Service Law. In
the exercise of this power, the Chairman is not required by law to
Having been appointed merely in a temporary or acting
secure the approval of the COMELEC en banc.
capacity, and not possessed of the necessary qualifications to hold
Petitioner’s appointment papers dated February 2, 1999, the position of Director IV, petitioner has no legal basis in claiming
February 15, 2000 and February 15, 2001, attached as Annexes “X“, that her reassignment was contrary to the Civil Service Law. This
“Y” and “Z” to her Petition, indisputably show that she held her time, the vigorous argument of petitioner that a temporary or acting
Director IV position in the EID only in appointment can be withdrawn or revoked at the pleasure of the
an acting or temporary capacity.[64] Petitioner is not a Career appointing power happens to apply squarely to her situation.
Executive Service (CES) officer, and neither does she hold Career
Still, petitioner assails her reassignment, carried out during the
Executive Service Eligibility, which are necessary qualifications for
election period, as a prohibited act under Section 261 (h) of the
holding the position of Director IV as prescribed in the Qualifications
Omnibus Election Code, which provides as follows:
Standards (Revised 1987) issued by the Civil Service Commission.
[65]
Obviously, petitioner does not enjoy security of tenure as Director
IV. InSecretary of Justice Serafin Cuevas vs. Atty. Josefina G. “Section 261. Prohibited Acts. The following shall be
Bacal,[66] this Court held that: guilty of an election offense:
“As respondent does not have the rank appropriate for the position of xxx
Chief Public Attorney, her appointment to that position cannot be
considered permanent, and she can claim no security of tenure in (h) Transfer of officers and employees in the civil service -
respect of that position. As held in Achacoso v. Macaraig: Any public official who makes or causes any transfer or
detail whatever of any officer or employee in the civil
service including public school teachers, within the election “NOW, THEREFORE, the Commission on Elections by virtue of the
period except upon prior approval of the Commission.” powers conferred upon it by the Constitution, the Omnibus Election
Code and other election laws, as an exception to the foregoing
Petitioner claims that Benipayo failed to secure the approval of the prohibitions, has RESOLVED, as it is hereby RESOLVED, to
COMELEC en banc to effect transfers or reassignments of appoint, hire new employees or fill new positions and transfer or
COMELEC personnel during the election period.[67] Moreover, reassign its personnel, when necessary in the effective
petitioner insists that the COMELEC en banc must concur to every performance of its mandated functions during the prohibited
transfer or reassignment of COMELEC personnel during the election period, provided that the changes in the assignment of its field
period. personnel within the thirty-day period before election day shall be
effected after due notice and hearing.” (Emphasis supplied)
Contrary to petitioner’s allegation, the COMELEC did in fact
issue COMELEC Resolution No. 3300 dated November 6, 2000, The proviso in COMELEC Resolution No. 3300, requiring due notice
[68]
exempting the COMELEC from Section 261 (h) of the Omnibus and hearing before any transfer or reassignment can be made within
Election Code. The resolution states in part: thirty days prior to election day, refers only to
COMELEC field personnel and not to head office personnel like the
“WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the petitioner. Under the Revised Administrative Code,[69] the COMELEC
Omnibus Election Code provides as follows: Chairman is the sole officer specifically vested with the power to
transfer or reassign COMELEC personnel. The COMELEC
xxx Chairman will logically exercise the authority to transfer or reassign
COMELEC personnel pursuant to COMELEC Resolution No.
Sec. 261. Prohibited Acts. The following shall be 3300. The COMELEC en banc cannot arrogate unto itself this power
guilty of an election offense: because that will mean amending the Revised Administrative Code,
an act the COMELEC en banc cannot legally do.
xxx COMELEC Resolution No. 3300 does not require that every
transfer or reassignment of COMELEC personnel should carry the
(h) Transfer of officers and employees in the civil concurrence of the COMELEC as a collegial body. Interpreting
service – Any public official who makes or causes any Resolution No. 3300 to require such concurrence will render the
transfer or detail whatever of any officer or employee resolution meaningless since the COMELEC en banc will have to
in the civil service including public school teachers, approve every personnel transfer or reassignment, making the
within the election period except upon approval of the resolution utterly useless. Resolution No. 3300 should be interpreted
Commission. for what it is, an approval to effect transfers and reassignments of
personnel, without need of securing a second approval from the
WHEREAS, the aforequoted provisions are applicable to the national COMELEC en banc to actually implement such transfer or
and local elections on May 14, 2001; reassignment.
The COMELEC Chairman is the official expressly authorized by
WHEREAS, there is an urgent need to appoint, transfer or reassign law to transfer or reassign COMELEC personnel. The person
personnel of the Commission on Elections during the prohibited holding that office, in a de jurecapacity, is Benipayo. The
period in order that it can carry out its constitutional duty to conduct COMELEC en banc, in COMELEC Resolution No. 3300, approved
free, orderly, honest, peaceful and credible elections; the transfer or reassignment of COMELEC personnel during the
election period. Thus, Benipayo’s order reassigning petitioner from
the EID to the Law Department does not violate Section 261 (h) of
the Omnibus Election Code. For the same reason, Benipayo’s order
designating Cinco Officer-in-Charge of the EID is legally
unassailable.