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INCAPACITY, SUCCESSION AND

PROHIBITIONS
[G.R. No. 163783. June 22, 2004]
PIMENTEL vs. CONGRESS
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUN 22 2004.
G. R. No. 163783 (Aquilino Q. Pimentel, Jr. vs. Joint Committee of Congress to Canvass the Votes Cast for
President and Vice-President in the May 10, 2004 Elections.)
RESOLUTION
By the present Petition for Prohibition, petitioner Senator Aquilino Q. Pimentel, Jr. seeks a judgment
declaring null and void the continued existence of the Joint Committee of Congress (Joint Committee) to
determine the authenticity and due execution of the certificates of canvass and preliminarily canvass the
votes cast for Presidential and Vice-Presidential candidates in the May 10, 2004 elections following the
adjournment of Congress sine die on June 11, 2004. The petition corollarily prays for the issuance of a writ
of prohibition directing the Joint Committee to cease and desist from conducting any further proceedings
pursuant to the Rules of the Joint Public Session of Congress on Canvassing.
Petitioner posits that with "the adjournment sine die on June 11, 2004 by the Twelfth Congress of its last
regular session, [its] term ... terminated and expired on the said day and the said Twelfth Congress serving
the term 2001 to 2004 passed out of legal existence." Henceforth, petitioner goes on, "all pending matters
and proceedings terminate upon the expiration of ... Congress." To advance this view, he relies on
"legislative procedure, precedent or practice [as] borne [out] by the rules of both Houses of Congress."
Given the importance of the constitutional issue raised and to put to rest all questions regarding the
regularity, validity or constitutionality of the canvassing of votes fro President and Vice-President in the
recently concluded national elections, this Court assumes jurisdiction over the instant petition pursuant to its
power and duty "to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government" under Section 1 of
Article VIII of the Constitution and its original jurisdiction over petitions for prohibition under Section 5 of
the same Article.
After a considered and judicious examination of the arguments raised by petitioner as well as those
presented in the Comments filed by the Solicitor General and respondent Joint Committee, this Court finds
that the petition has absolutely no basis under the Constitution and must, therefore, be dismissed.
Petitioner's claim that his arguments are buttressed by "legislative procedure, precedent or practice [as]
borne [out] by the rules of both Houses of Congress" is directly contradicted by Section 42 of Rule XIV of the
Rules adopted by the Senate, of which he is an incumbent member. This section clearly provides that the
Senate shall convene in joint session during any voluntary orcompulsory recess to canvass the
votes for President and Vice-President not later than thirty days after the day of the elections in
accordance with Section 4, Article VII of the Constitution.

Moreover, as pointed out in the Comment filed by the Senate Panel for respondent Joint Committee and that
of the Office of the Solicitor General, the precedents set by the 1992 and 1998 Presidential Elections do not
support the move to stop the ongoing canvassing by the Joint Committee, they citing the observations of
former Senate President Jovito Salonga.
Thus, during the 1992 Presidential elections, both Houses of Congress adjourned sine die on May 25, 1992.
On June 16, 1992, the Joint Committee finished tallying the votes for President and Vice-President.
[1]
Thereafter, on June 22, 1992, the Eighth Congress convened in joint public session as the National Board
of Canvassers, and on even date proclaimed Fidel V. Ramos and Joseph Ejercito Estrada as President and
Vice-President, respectively.[2]
cralaw

cralaw

Upon the other hand, during the 1998 Presidential elections, both Houses of Congress adjourned sine die on
May 25, 1998. The Joint Committee completed the counting of the votes for President and Vice-President on
May 27, 1998.[3] The Tenth Congress then convened in joint public session on May 29, 1998 as the National
Board of Canvassers and proclaimed Joseph Ejercito Estrada as President and Gloria Macapagal-Arroyo as
President and Vice-President, respectively.[4]
cralaw

cralaw

As for petitioner's argument that "the [e]xistence and [p]roceedings [o]f the Joint Committee of Congress
[a]re [i]nvalid, [i]llegal and [u]nconstitutional [f]ollowing the [a]djournment [s]ine [d]ie [o]f [b]oth Houses
of Congress [o]f [t]heir [r]egular [s]essions on June 11, 2004," he cites in support thereof Section 15,
Article VI of the Constitution which reads:
Sec. 15. The Congress shall convene once every year on the fourth Monday of July for its regular session,
unless a different date is fixed by law, and shall continue to be in session for such number of days as it may
determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays,
and legal holidays. The President may call a special session at any time.
Contrary to petitioner's argument, however, the term of the present Twelfth Congress did not terminate and
expire upon the adjournment sine die of the regular session of both Houses on June 11, 2004.
Section 15, Article VI of the Constitution cited by petitioner does not pertain to the term of Congress, but to
its regular annual legislative sessions and the mandatory 30-day recess before the opening of its next
regular session (subject to the power of the President to call a special session at any time).
Section 4 of Article VIII also of the Constitution clearly provides that "[t]he term of office of the
Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth
day of June next following their election." Similarly, Section 7 of the same Article provides that "[t]he
Members of the House of Representatives shall be elected for a term of three years which shall begin,
unless otherwise provided by law, at noon on the thirtieth day of June next following their election."
Consequently, there being no law to the contrary, until June 30, 2004, the present Twelfth Congress to which
the present legislators belong cannot be said to have "passed out of legal existence."
The legislative functions of the Twelfth Congress may have come to a close upon the final adjournment of
its regular sessions on June 11, 2004, but this does not affect its non-legislativefunctions, such as that of
being the National Board of Canvassers. In fact, the joint public session of both Houses of Congress
convened by express directive of Section 4, Article VII of the Constitution to canvass the votes for and to
proclaim the newly elected President and Vice-President has not, and cannot, adjourn sine die until it has
accomplished its constitutionally mandated tasks. For only when a board of canvassers has completed its
functions is it rendered functus officio. Its membership may change, but it retains its authority as a board
until it has accomplished its purposes. (Pelayo v. Commission on Elections, 23 SCRA 1374, 1385 [1968],
citing Bautista v. Fugoso, 60 Phil. 383, 389 [1934] and Aquino v. Commission on Elections, L-28392,
January 29 1968)
Since the Twelfth Congress has not yet completed its non-legislative duty to canvass the votes and proclaim
the duly elected President and Vice-President, its existence as the National Board of Canvassers, as well as

that of the Joint Committee to which it referred the preliminary tasks of authenticating and canvassing the
certificates of canvass, has not become functus officio.
In sum, despite the adjournment sine die of Congress, there is no legal impediment to the Joint Committee
completing the tasks assigned to it and transmitting its report for the approval of the joint public session of
both Houses of Congress, which may reconvene without need of call by the President to a special session.
WHEREFORE, the instant Petition is hereby DISMISSED.
Vitug, J., on official leave; Ynares-Santiago and Austria-Martinez, JJ., on leave.

EN BANC

[G.R. Nos. 146710-15. April 3, 2001]

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity


as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST
CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES
FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA,
ROMEO
CAPULONG
and
ERNESTO
B.
FRANCISCO,
JR., respondents.

[G.R. No. 146738. April 3, 2001]

JOSEPH
E.
ESTRADA, petitioner,
ARROYO, respondent.

vs. GLORIA

MACAPAGAL-

R E S O LUTIO N
PUNO, J.:

For resolution are petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and
Omnibus Motion in G.R. No. 146738 of the Courts Decision of March 2, 2001.
In G.R. Nos. 146710-15, petitioner raises the following grounds:
I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART. XI, SECTION 3
(7) OF THE CONSTITUTION AND THE SETTLED JURISPRUDENCE THEREON.
II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS RULING
WOULD VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION,

CONSIDERING THAT PETITIONER WAS ACQUITTED IN THE IMPEACHMENT


PROCEEDINGS.
III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO ABSOLUTE
IMMUNITY FROM SUIT.
IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR TRIAL HAVE NOT
BEEN PREJUDICED BY PRE-TRIAL PUBLICITY.
V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT THE COURT TO
ENJOIN THE PRELIMINARY INVESTIGATION OF THE INCUMBENT
OMBUDSMAN, PETITIONER HAVING FAILED TO PROVE THE IMPAIRED
CAPACITY OF THE OMBUDSMAN TO RENDER A BIASED FREE DECISION.

In G.R. No. 146738, petitioner raises and argues the following issues:
1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED RESIGNED AS
OF JANUARY 20, 2001;
2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF
THE FOLLOWING RULES ON EVIDENCE: HEARSAY, BEST EVIDENCE,
AUTHENTICATION, ADMISSIONS AND RES INTER ALIOS ACTA;
3. WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE OF THE
HEARSAY RULE;
4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS INABILITY TO
GOVERN CONSIDERING SECTION 11, ARTICLE VII OF THE CONSTITUTION; and
5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONERS RIGHT TO
FAIR TRIAL.

We find the contentions of petitioner bereft of merit.


I

Prejudicial Publicity on the Court

Petitioner insists he is the victim of prejudicial publicity. Among others, he assails the
Decision for adverting to newspaper accounts of the events and occurrences to reach the
conclusion that he has resigned. In our Decision, we used the totality test to arrive at the
conclusion that petitioner has resigned. We referred to and analyzed events that were prior,
contemporaneous and posterior to the oath-taking of respondent Arroyo as president. All these
events are facts which are well-established and cannot be refuted. Thus, we adverted to prior
events that built up the irresistible pressure for the petitioner to resign. These are: (1) the expose
of Governor Luis Chavit Singson on October 4, 2000; (2) the I accuse speech of then Senator
Teofisto Guingona in the Senate; (3) the joint investigation of the speech of Senator Guingona by
the Blue Ribbon Committee and the Committee on Justice; (4) the investigation of the Singson
expose by the House Committee on Public Order and Security; (5) the move to impeach the
petitioner in the House of Representatives; (6) the Pastoral Letter of Archbishop Jaime Cardinal
Sin demanding petitioners resignation; (7) a similar demand by the Catholic Bishops conference;
(8) the similar demands for petitioners resignation by former Presidents Corazon C. Aquino and

Fidel V. Ramos; (9) the resignation of respondent Arroyo as Secretary of the DSWD and her call
for petitioner to resign; (10) the resignation of the members of petitioners Council of Senior
Economic Advisers and of Secretary Mar Roxas III from the Department of Trade and Industry;
(11) the defection of then Senate President Franklin Drilon and then Speaker of the House of
Representatives Manuel Villar and forty seven (47) representatives from petitioners Lapiang
Masang Pilipino; (12) the transmission of the Articles of Impeachment by Speaker Villar to the
Senate; (13) the unseating of Senator Drilon as Senate President and of Representative Villar as
Speaker of the House; (14) the impeachment trial of the petitioner; (15) the testimonies of
Clarissa Ocampo and former Finance Secretary Edgardo Espiritu in the impeachment trial; (16)
the 11-10 vote of the senator-judges denying the prosecutors motion to open the 2nd envelope
which allegedly contained evidence showing that petitioner held a P3.3 billion deposit in a secret
bank account under the name of Jose Velarde; (17) the prosecutors walkout and resignation; (18)
the indefinite postponement of the impeachment proceedings to give a chance to the House of
Representatives to resolve the issue of resignation of their prosecutors; (19) the rally in the
EDSA Shrine and its intensification in various parts of the country; (20) the withdrawal of
support of then Secretary of National Defense Orlando Mercado and the then Chief of Staff,
General Angelo Reyes, together with the chiefs of all the armed services; (21) the same
withdrawal of support made by the then Director General of the PNP, General Panfilo Lacson,
and the major service commanders; (22) the stream of resignations by Cabinet secretaries,
undersecretaries, assistant secretaries and bureau chiefs; (23) petitioners agreement to hold a
snap election and opening of the controversial second envelope.All these prior events are facts
which are within judicial notice by this Court. There was no need to cite their news
accounts. The reference by the Court to certain newspapers reporting them as they
happened does not make them inadmissible evidence for being hearsay. The news account
only buttressed these facts as facts. For all his loud protestations, petitioner has not singled
out any of these facts as false.
We now come to some events of January 20, 2001 contemporaneous to the oath taking of
respondent Arroyo. We used the Angara Diary to decipher the intent to resign on the part of the
petitioner. Let it be emphasized that it is not unusual for courts to distill a persons subjective
intent from the evidence before them. Everyday, courts ascertain intent in criminal cases, in civil
law cases involving last wills and testaments, in commercial cases involving contracts and in
other similar cases. As will be discussed below, the use of the Angara Diary is not prohibited by
the hearsay rule. Petitioner may disagree with some of the inferences arrived at by the Court
from the facts narrated in the Diary but that does not make the Diary inadmissible as evidence.
We did not stop with the contemporaneous events but proceeded to examine some events
posterior to the oath-taking of respondent Arroyo. Specifically, we analyzed the all important
press release of the petitioner containing his final statement which was issued after the oathtaking of respondent Arroyo as president. After analyzing its content, we ruled that petitioners
issuance of the press release and his abandonemnt of Malacaang Palace confirmed his
resignation.[1] These are overt acts which leave no doubt to the Court that the petitioner has
resigned.
In light of this finding that petitioner has resigned before 12 oclock noon of Janaury 20,
2001, the claim that the office of the President was not vacant when respondent Arroyo
took her oath of office at half past noon of the same day has no leg to stand on.

We also reject the contention that petitioners resignation was due to duress and
an involuntary resignation is no resignation at all.

x x x [I]t has been said that, in determining whether a given resignation is voluntarily
tendered, the element of voluntariness is vitiated only when the resignation is
submitted under duress brought on by government action. The three-part test for
such duress has been stated as involving the following elements: (1) whether one side
involuntarily accepted the others terms; (2) whether circumstances permitted no other
alternative; and (3) whether such circumstances were the result of coercive acts of the
opposite side. The view has also been expressed that a resignation may be found
involuntary if on the totality of the circumstances it appears that the employers
conduct in requesting resignation effectively deprived the employer of free choice in
the matter. Factors to be considered, under this test, are: (1) whether the employee
was given some alternative to resignation; (2) whether the employee understood the
nature of the choice he or she was given; (3) whether the employewe was given a
reasonable time in which to choose; and (4) whether he or she was permitted to select
the effective date of resignation. In applying this totality of the circumstances test, the
assessment whether real alternatives were offered must be gauged by an objective
standard rather than by the employees purely subjective evaluation; that the
employee may perceive his or her only option to be resignation for example,
because of concerns about his or her reputation is irrelevant. Similarly, the mere
fact that the choice is between comparably unpleasant alternatives for example,
resignation or facing disciplinary charges does not of itself establish that a
resignation was induced by duress or coercion, and was therefore
involuntary. This is so even where the only alternative to resignation is facing
possible termination for cause, unless the employer actually lacked good cause to
believe that grounds for termination existed. In this regard it has also been said that a
resignation resulting from a choice between resigning or facing proceedings for
dismissal is not tantamount to discharge by coercion without procedural view if the
employee is given sufficient time and opportunity for deliberation of the choice
posed. Futhermore, a resignation by an officer charged with misconduct is not given
under duress, though the appropriate authority has already determined that the officers
alternative is termination, where such authority has the legal authority to terminate the
officers employment under the particular circumstances, since it is not duress to
threaten to do what one has the legal right to do, or to threaten to take any measure
authorized by law and the circumstances of the case. [2]
In the cases at bar, petitioner had several options available to him other than
resignation. He proposed to the holding of snap elections. He transmitted to the Congress a
written declaration of temporary inability. He could not claim he was forced to resign because
immediately before he left Malacaang, he asked Secretary Angara: Ed, aalis na ba ako? which
implies that he still had a choice of whether or not to leave.

To be sure, pressure was exerted for the petitioner to resign. But it is difficult to believe
that the pressure completely vitiated the voluntariness of the petitioners resignation. The
Malacaang ground was then fully protected by the Presidential Security Guard armed with tanks
and high-powered weapons. The then Chief of Staff, General Angelo Reyes, and other military
officers were in Malacaang to assure that no harm would befall the petitioner as he left the
Palace. Indeed, no harm, not even a scratch, was suffered by the petitioner, the members of his
family and his Cabinet who stuck it out with him in his last hours. Petitioners entourage was
even able to detour safely to the Municipal Hall of San Juan and bade goodbye to his followers
before finally going to his residence in Polk Street, Greenhills. The only incident before the
petitioner left the Palace was the stone throwing between a small group of pro and anti Erap
rallyists which resulted in minor injuries to a few of them. Certainly, there were no tanks that
rumbled through the Palace, no attack planes that flew over the presidential residence, no
shooting, no large scale violence, except verbal violence, to justify the conclusion that petitioner
was coerced to resign.
II

Evidentiary Issues

Petitioner devotes a large part of his arguments on the alleged improper use by this Court of
the Angara Diary. It is urged that the use of the Angara Diary to determine the state of mind of
the petitioner on the issue of his resignation violates the rule against the admission of hearsay
evidence.
We are unpersuaded. To begin with, the Angara diary is not an out of court
statement. The Angara Diary is part of the pleadings in the cases at bar. Petitioner cannot
complain he was not furnished a copy of the Angara Diary. Nor can he feign surprise on its
use. To be sure, the said Diary was frequently referred to by the parties in their pleadings. [3] The
three parts of the Diary published in the PDI from February 4-6, 2001 were attached as Annexes
A-C, respectively, of the Memorandum of private respondents Romeo T. Capulong, et al., dated
February 20, 2001. The second and third parts of the Diary were earlier also attached as Annexes
12 and 13 of the Comment of private respondents Capulong, et al., dated February 12, 2001. In
fact, petitioner even cited in his Second Supplemental Reply Memorandum both the second part
of the diary, published on February 5, 2001, [4] and the third part, published on February 6, 2001.
[5]
It was also extensively used by Secretary of Justice Hernando Perez in his oral
arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but
unfortunately failed to do so.
Even assuming arguendo that the Angara Diary was an out of court statement, still its use is
not covered bythe hearsay rule.[6] Evidence is called hearsay when its probative force depends, in
whole or in part, on the competency and credibility of some persons other than the witness by
whom it is sought to produce it.[7] There are three reasons for excluding hearsay evidence: (1)
absence of cross examination; (2) absence of demeanor evidence, and (3) absence of the oath.
[8]
Not at all hearsay evidence, however, is inadmissible as evidence. Over the years, a huge body
of hearsay evidence has been admitted by courts due to their relevance, trustworthiness and

necessity.[9] The emergence of these exceptions and their wide spread acceptance is wellexplained by Weinstein, Mansfield, Abrams and Berger as follows:

xxx
On the other hand, we all make decisions in our everyday lives on the basis of other
persons accounts of what happened, and verdicts are usually sustained and affirmed
even if they are based on hearsay erroneously admitted, or admitted because no
objection was made. See Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985)
(hearsay evidence alone can support a verdict).Although volumes have been written
suggesting ways to revise the hearsay rule, no one advocates a rule that would bar all
hearsay evidence. Indeed, the decided historical trend has been to exclude
categories of highly probative statements from the definition of hearsay (sections
2 and 3, infra), and to develop more class exceptions to the hearsay rule (sections
4-11, infra).Furthermore, many states have added to their rules the residual, or
catch-all, exceptions first pioneered by the Federal Rules which authorize the
admission of hearsay that does not satisfy a class exception, provided it is
adequately trustworthy and probative (section 12, infra).
Moreover, some commentators believe that the hearsay rule should be abolished
altogether instead of being loosened. See, e.g., Note, The Theoretical Foundation of
the Hearsay Rules, 93 Harv.L.Rev. 1786, 1804-1805, 1815 (1980) (footnotes omitted):
The Federal Rules of Evidence provide that [a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice. Under this structure, exclusion is justified by fears of how the jury will be
influenced by the evidence. However, it is not traditional to think of hearsay as merely
a subdivision of this structure, and the Federal Rules do not conceive of hearsay in
that manner. Prejudice refers to the jurys use of evidence for inferences other than
those for which the evidence is legally relevant; by contrast, the rule against hearsay
questions the jurys ability to evaluate the strength of a legitimate inference to be
drawn from the evidence. For example, were a judge to exclude testimony because a
witness was particularly smooth or convincing, there would be no doubt as to the
usurpation of the jurys function. Thus, unlike prejudices recognized by the evidence
rules, such as those stemming from racial or religious biases or from the introduction
of photographs of a victims final state, the exclusion of hearsay on the basis of
misperception strikes at the root of the jurys function by usurping its power to process
quite ordinary evidence, the type of information routinely encountered by jurors in
their everyday lives.
Since virtually all criteria seeking to distinguish between good and bad hearsay are
either incoherent, inconsistent, or indeterminate, the only altenative to a general rule

of admission would be an absolute rule of exclusion, which is surely inferior. More


important, the assumptions necessary to justify a rule against hearsay seem
insupportable and, in any event, are inconsistent with accepted notions of the function
of the jury. Therefore, the hearsay rules should be abolished.
Some support for this view can be found in the limited empirical research now
available which is, however, derived from simulations that suggests that admitting
hearsay has little effect on trial outcomes because jurors discount the value of
hearsay evidence. See Rakos & Landsman, Researching the Hearsay Rule: Emerging
Findings, General Issues, and Future Directions, 76 Minn.L.Rev. 655 (1992); Miene,
Park, & Borgidas, Jury Decision Making and the Evaluation of Hearsay Evidence, 76
Minn.L.Rev. 683 (1992); Kovera, Park, & Penrod, Jurors Perceptions of Eyewitness
and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman & Rakos, Research
Essay: A Preliminary Empirical Enquiry Concerning the prohibition of Hearsay
Evidence in American Courts, 15 Law & Psychol. Rev. 65 (1991).
Others, even if they concede that restrictions on hearsay have some utility, question
whether the benefits outweigh the cost:

The cost of maintaining the rule is not just a function of its contribution to justice. It
also includes the time spent on litigating the rule. And of course this is not just a cost
voluntarily borne by the parties, for in our system virtually all the cost of the court
salaries, administrative costs, and capital costs are borne by the public. As expensive
as litigation is for the parties, it is supported by an enormous public subsidy. Each
time a hearsay question is litigated, the public pays. The rule imposes other costs
as well. Enormous time is spent teaching and writing about the hearsay rule, which are
both costly enterprises. In some law schools, students spend over half their time in
evidence classes learning the intricacies of the hearsay rule, and enormous academic
resources are expended on the rule.
Allen, Commentary on Professor Friendmans Article: The Evolution of the Hearsay
Rule to a Rule of Admission, 76 Minn.L.Rev. 797, 800 [1992] (but would abolish rule
only in civil cases).See also Friedman, Toward a Partial Economic, Game-Theoretic
Analysis of Hearsay, 76 Minn. L. Rev. 723 (1992).[10]
A complete analysis of any hearsay problem requires that we further determine whether
the hearsay evidence is one exempted from the rules of exclusion. A more circumspect
examination of our rules of exclusion will show that they do not cover admissions of a party
and the Angara Diary belongs to this class. Section 26 of Rule 130 provides that the act,
declaration or omission of a party as to a relevant fact may be given in evidence against him. [11] It
has long been settled that these admissions are admissible even if they are hearsay. Retired Justice Oscar
Herrera of the Court of Appeals cites the various authorities who explain why admissions are not
covered by the hearsay rule:[12]

Wigmore, after pointing out that the partys declaration has generally the probative
value of any other persons asssertion, argued that it had a special value when offered
against the party. In that circumstance, the admission discredits the partys statement
with the present claim asserted in pleadings and testimony, much like a witness
impeached by contradictory statements.Moreover, he continued, admissions pass the
gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded
if there was no opportunity for the opponent to cross-examine because it is the
opponents own declaration, and he does not need to cross examine
himself. Wigmore then added that the Hearsay Rule is satisfied since the party now as
opponent has the full opportunity to put himself on the stand and explain his former
assertion. (Wigmore on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec.
154, McCormick)
According to Morgan: The admissibility of an admission made by the party himself
rests not upon any notion that the circumstances in which it was made furnish the trier
means of evaluating it fairly, but upon the adversary theory of litigation. A party can
hardly object that he had no opportunity to cross-examine himself or that he is
unworthy of credence save when speaking under sanction of an oath.
A mans acts, conduct, and declaration, wherever made, if voluntary, are admissible
against him, for the reason that it is fair to presume that they correspond with the
truth, and it is his fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578, 583).
The Angara Diary contains direct statements of petitioner which can be categorized
as admissions of a party: his proposal for a snap presidential election where he would not be a
candidate; his statement that he only wanted the five-day period promised by Chief of Staff
Angelo Reyes; his statements that he would leave by Monday if the second envelope would be
opened by Monday and Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako
sa red tape, bureaucracy, intriga. (I am very tired. I dont want any more of this its too painful. Im
tired of the red tape, the bureaucracy, the intrigue). I just want to clear my name, then I will
go. We noted that days before, petitioner had repeatedly declared that he would not resign despite
the growing clamor for his resignation. The reason for the meltdown is obvious - - - his will not
to resign has wilted.
It is, however, argued that the Angara Diary is not the diary of the petitioner, hence,
non-binding on him. The argument overlooks the doctrine of adoptive admission. An adoptive
admission is a partys reaction to a statement or action by another person when it is reasonable to
treat the partys reaction as an admission of something stated or implied by the other person.
[13]
Jones explains that the basis for admissibility of admissions made vicariously is that arising from
the ratification or adoption by the party of the statements which the other person had made. [14] To
use the blunt language of Mueller and Kirkpatrick, this process of attribution is not mumbo jumbo but
common sense.[15] In the Angara Diary, the options of the petitioner started to dwindle when the
armed forces withdrew its support from him as President and commander-in-chief. Thus,
Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to consider

the option of dignified exit or resignation. Petitioner did not object to the suggested option but
simply said he could never leave the country. Petitioners silence on this and other related
suggestions can be taken as an admission by him.[16]
Petitioner further contends that the use of the Angara diary against him violated the rule
on res inter alios acta. The rule is expressed in section 28 of Rule 130 of the Rules of Court,
viz:The rights of a party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.
Again, petitioner errs in his contention. The res inter alios acta rule has several
exceptions. One of them is provided in section 29 of Rule 130 with respect to admissions by a
co-partner or agent.
Executive Secretary Angara as such was an alter ego of the petitioner. He was the Little
President. Indeed, he was authorized by the petitioner to act for him in the critical hours and
days before he abandoned Malacaang Palace. Thus, according to the Angara Diary, the
petitioner told Secretary Angara: Mula umpisa pa lang ng kampanya, Ed, ikaw na lang
pinakikinggan ko. At hanggang sa huli, ikaw pa rin. (Since the start of the campaign, Ed, you
have been the only one Ive listened to. And now at the end, you still are.) [17] This statement of full
trust was made by the petitioner after Secretary Angara briefed him about the progress of the first
negotiation. True to this trust, the petitioner had to ask Secretary Angara if he would already leave
Malacaang after taking their final lunch on January 20, 2001 at about 1:00 p.m. The Angara
Diary quotes the petitioner as saying to Secretary Angara: ed, kailangan ko na bang umalis? (Do I

have to leave now?)[18] Secretary Angara told him to go and he did. Petitioner cannot deny that
Secretary Angara headed his team of negotiators that met with the team of the respondent Arroyo
to discuss the peaceful and orderly transfer of power after his relinquishment of the powers of the
presidency. The Diary shows that petitioner was always briefed by Secretary Angara on the
progress of their negotiations.Secretary Angara acted for and in behalf of the petitioner in the
crucial days before respondent Arroyo took her oath as President. Consequently, petitioner is
bound by the acts and declarations of Secretary Angara.
Under our rules of evidence, admissions of an agent (Secretary Angara) are binding on
the principal (petitioner).[19] Jones very well explains the reasons for the rule, viz: What is done,
by agent, is done by the principal through him, as through a mere instrument. So, whatever is
said by an agent, either in making a contract for his principal, or at the time and accompanying
the performance of any act within the scope of his authority, having relation to, and connected
with, and in the course of the particular contract or transaction in which he is then engaged, or in
the language of the old writers, dum fervet opus is, in legal effect, said by his principal and
admissible in evidence against such principal.[20]
Moreover, the ban on hearsay evidence does not cover independently relevant
statements. These are statements which are relevant independently of whether they are true
or not.They belong to two (2) classes: (1) those statements which are the very facts in issue, and
(2) those statements which are circumstantial evidence of the facts in issue. The second class
includes the following:[21]
a. Statement of a person showing his state of mind, that is, his mental condition, knowledge,
belief, intention, ill will and other emotions;
b. Statements of a person which show his physical condition, as illness and the like;

c. Statements of a person from which an inference may be made as to the state of mind of
another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter;
d. Statements which may identify the date, place and person in question; and
e. Statements showing the lack of credibility of a witness.

Again, Jones tells us why these independently relevant statements are not covered by
the prohibition against hearsay evidence:[22]

1088. Mental State or Condition Proof of Knowledge.- There are a number of comon
issues, forming a general class, in proof of which hearsay is so obviously necessary
that it is not customary to refer to its admissibility as by virtue of any exception to the
general exclusionary rule. Admissibility, in such cases, is as of course. For
example, where any mental state or condition is in issue, such as motive, malice,
knowledge, intent, assent or dissent, unless direct testimony of the particular person is
to be taken as conclusive of his state of mind, the only method of proof available is
testimony of others to the acts or statements of such person. Where his acts or
statements are against his interest, they are plainly admissible within the rules
hereinabove announced as to admissions against interest. And even where not against
interest, if they are so closely connected with the event or transaction in issue as to
constitute one of the very facts in controversy, they become admissible of necessity.
As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his
state of mind and are circumstantial evidence of his intent to resign. It also contains statements of
Secretary Angara from which we can reasonably deduce petitioners intent to resign. They are
admissible and they are not covered by the rule on hearsay. This has long been a quiet area of our
law on evidence and petitioners attempt to foment a belated tempest cannot receive our
imprimatur.
Petitioner also contends that the rules on authentication of private writings and best
evidence were violated in our Decision, viz:

The use of the Angara diary palpably breached several hornbook rules of evidence,
such as the rule on authentication of private writings
xxx

A. Rule on Proof of Private Writings Violated


The rule governing private documents as evidence was violated. The law provides that
before any private writing offered as authentic is received in evidence, its due
execution and authenticity must be proved either: a) by anyone who saw the document
executed or written, or b) by evidence of the genuineness of the signature or
handwriting of the maker.

xxx

B. Best Evidence Rule Infringed


Clearly, the newspaper reproduction is not the best evidence of the Angara diary. It is
secondary evidence, of dubious authenticity. It was however used by this Honorable
Court without proof of the unavailability of the original or duplicate original of the
diary. The Best Evidence Rule should have been applied since the contents of the
diary are the subject of inquiry.
The rule is that, except in four (4) specific instances, [w]hen the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the original
document itself.[23]
Petitioners contention is without merit. In regard to the Best Evidence rule, the Rules of
Court provides in sections 2 to 4 of Rule 130, as follows:

Sec. 2. Documentary evidence. Documents as evidence consist of writings or any


material containing letters, words, numbers, figures or other modes of written
expressions offered as proof of their contents.
Sec. 3. Original document must be produced; exceptions. When the subject of inquiry
is the contents of a document, no evidence shall be admissible other than the original
document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom
the evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot
be examined in court without great loss of time and the fact sought to be established
from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is
recorded in a public office.
Sec. 4. Original of document. (a) The original of a document is one the contents of
which are the subject of inquiry.
(b) When a document is in two or more copies executed at or about the same time,
with identical contents, all such copies are equally regarded as originals.

(c) When an entry is repeated in the regular course of business, one being copied from
another at or near the time of the transaction, all the entries are likewise equally
regarded as originals.
It is true that the Court relied not upon the original but only copy of the Angara Diary as
published in the Philippine Daily Inquirer on February 4-6, 2001. In doing so, the Court, did
not, however, violate the best evidence rule. Wigmore, in his book on evidence, states that:

Production of the original may be dispensed with, in the trial courts discretion,
whenever in the case in hand the opponent does not bona fide dispute the contents
of the document and no other useful purpose will be served by requiring production.
[24]

xxx

In several Canadian provinces, the principle of unavailability has been abandoned, for
certain documents in which ordinarily no real dispute arised. This measure is a
sensible and progressive one and deserves universal adoption (post, sec. 1233). Its
essential feature is that a copy may be used unconditionally, if the opponent has been
given an opportunity to inspect it. (empahsis supplied)
Franciscos opinion is of the same tenor, viz:

Generally speaking, an objection by the party against whom secondary evidence is


sought to be introduced is essential to bring the best evidence rule into application;
and frequently, where secondary evidence has been admitted, the rule of exclusion
might have successfully been invoked if proper and timely objection had been
taken. No general rule as to the form or mode of objecting to the admission of
secondary evidence is set forth. Suffice it to say here that the objection should be
made in proper season that is, whenever it appears that there is better evidence
than that which is offered and before the secondary evidence has been
admitted. The objection itself should be sufficiently definite to present a tangible
question for the courts consideration.[25]
He adds:

Secondary evidence of the content of the writing will be received in evidence if no


objection is made to its reception.[26]
In regard to the authentication of private writings, the Rules of Court provides in section 20 of
Rule 132, viz:

Sec. 20. Proof of private document. Before any private document offered as authentic
is received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.
On the rule of authentication of private writings, Francisco states that:

A proper foundation must be laid for the admission of documentary evidence; that is,
the identity and authenticity of the document must be reasonably established as a prerequisite to its admission. (Rouw v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A.L.R. 1263,
and others) However, a party who does not deny the genuineness of a proffered
instrument may not object that it was not properly identified before it was
admitted in evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103
A.L.R. 835).[27]
Petitioner cites the case of State prosecutors v. Muro,[28] which frowned on reliance by
courts on newspaper accounts. In that case, Judge Muro was dismissed from the service for
relying on a newspaper account in dismissing eleven (11) cases against Mrs. Imelda Romualdez
Marcos. There is a significant difference, however, between the Muro case and the cases at bar. In
the Murocase, Judge Muro dismissed the cases against Mrs. Marcos on the basis of a newspaper
account without affording the prosecution the basic opportunity to be heard on the matter by way of
a written comment or on oral argument. . .(this is) not only a blatant denial of elementary due
process to the Government but is palpably indicative of bad faith and partiality. In the instant
cases, however, the petitioner had an opportunity to object to the admissibility of the Angara
Diary when he filed his Memorandum dated February 20, 2001, Reply Memorandum dated
February 22, 2001, Supplemental Memorandum dated February 23, 2001, and Second
Supplemental memorandum dated February 24, 2001. He was therefore not denied due
process. In the words of Wigmore,supra, petitioner had been given an opportunity to inspect
the Angara Diary but did not object to its admissibility. It is already too late in the day to raise his
objections in an Omnibus Motion, after theAngara Diary has been used as evidence and a decision rendered partly
on the basis thereof.
III

Temporary Inability

Petitioner argues that the Court misinterpreted the meaning of section 11, Article VII, of the
Constitution in that congress can only decide the issue of inability when there is a variance of
opinion between a majority of the Cabinet and the President. The situation presents itself when
majority of the Cabinet determines that the President is unable to govern; later, the President

informs Congress that his inability has ceased but is contradicted by a majority of the members
of the Cabinet. It is also urged that the presidents judgment that he is unable to govern
temporarily which is thereafter communicated to the Speaker of the House and the President of
the Senate is the political question which this Court cannot review.
We cannot sustain the petitioner. Lest petitioner forgets, he himself made the
submission in G.R. No. 146738 that Congress has the ultimate authority under the
Constitution to determine whether the President is incapable of performing his functions in
the manner provided for in section 11 of Article VII.[29] We sustained this submission and
held that by its many acts, Congress has already determined and dismissed the claim of alleged
temporary inability to govern proffered by petitioner. If petitioner now feels aggrieved by
the manner Congress exercised its power, it is incumbent upon him to seek redress from
Congress itself. The power is conceded by the petitioner to be with Congress and its alleged
erroneous exercise cannot be corrected by this Court. The recognition of respondent Arroyo
as our de jure president made by Congress is unquestionably a political judgment. It is
significant that House Resolution No. 176 cited as the bases of its judgment such factors as
the peoples loss of confidence on the ability of former President Joseph Ejercito Estrada to
effectively govern and the members of theinternational community had extended their
recognition of Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the
Philippines and it has a constitutional duty of fealty to the supreme will of the people x x
x. This political judgment may be right or wrong but Congress is answerable only to the
people for its judgment. Its wisdom is fit to be debated before the tribunal of the people and not
before a court of justice. Needles to state, the doctrine of separation of power constitutes
an inseparable bar against this courts interposition of its power of judicial review to review the
judgment of Congress rejecting petitioners claim that he is still the President, albeit on leave and
that respondent Arroyo is merely an acting President.
Petitioner attempts to extricate himself from his submission that Congress has the ultimate
authority to determine his inability to govern, and whose determination is a political question by
now arguing that whether one is a de jure or de facto President is a judicial
question. Petitioners change of theory, ill disguised as it is, does not at all impress. The cases at
bar do not present the general issue of whether the respondent Arroyo is the de jure or a de
facto President. Specific issues were raised to the Court for resolution and we ruled on an issue
by issue basis. On the issue of resignation under section 8, Article VII of the Constitution, we
held that the issue is legal and ruled that petitioner has resigned from office before respondent
Arroyo took her oath as President. On the issue of inability to govern under section 11, Article
VII of the Constitution, we held that the Congress has the ultimate authority to determine the
question as opined by the petitioner himself and that the determination of Congress is a political
judgment which this Court cannot review. Petitioner cannot blur these specific rulings by the
generalization that whether one is a de jure or de facto President is a judicial question.
Petitioner now appears to fault Congress for its various acts expressed thru resolutions
which brushed off his temporary inability to govern and President-on-leave argument. He
asserts that these acts of Congress should not be accorded any legal significance because: (1)
they are post facto and (2) a declaration of presidential incapacity cannot be implied.
We disagree. There is nothing in section 11 of Article VII of the Constitution which states
that the declaration by Congress of the Presidents inability must always be a priori or before the

Vice-President assumes the presidency. In the cases at bar, special consideration should be given
to the fact that the events which led to the resignation of the petitioner happened at express speed
and culminated on a Saturday. Congress was then not in session and had no reasonable
opportunity to act a priori on petitioners letter claiming inability to govern. To be sure,
however, the petitioner cannot strictly maintain that the President of the Senate, the Honorable
Aquilino Pimentel, Jr. and the then Speaker of the House of Representatives, the Honorable
Arnulfo P. Fuentebella, recognized respondent Arroyo as the constitutional successor to the
presidency post facto. Petitioner himself states that his letter alleging his inability to govern was
received by the Office of the Speaker on January 20, 2001 at 8:30 A.M. and the Office of the
Senate at 9 P.M. of the same day.[30] Respondent took her oath of office a few minutes past 12
oclock in the afternoon of January 20. Before the oath-taking, Senate President Pimentel, Jr. and
Speaker Fuentebella had prepared a Joint Statement which states:[31]

Joint Statement of Support


and Recognition from the
Senate President and the Speaker
Of the House of Representatives
We, the elected leaders of the Senate and the House of Representatives, are called
upon to address the constitutional crisis affecting the authority of the President to
effectively govern our distressed nation. We understand that the Supreme Court at that
time is issuing an en banc resolution recognizing this political reality. While we may
differ on the means to effect a change of leadership, we however, cannot be indifferent
and must act resolutely. Thus, in line with our sworn duty to represent our people
and in pursuit of our goals for peace and prosperity to all, we, the Senate
President and the Speaker of the House of Representatives, hereby declare our
support and recognition to the constitutional successor to the Presidency. We
similarly call on all sectors to close ranks despite our political differences. May God
bless our nation in this period of new beginnings.
Mabuhay and Pilipinas at ang mamamayang Pilipino.
(Sgd.) AQUILINO PIMENTEL, JR.
Senate President
(Sgd.) ARNULFO P. FUENTEBELLA
Speaker of the House of Representatives
This a priori recognition by the President of the Senate and the Speaker of the House of
Representatives of respondent Arroyo as the constitutional successor to the presidency was
followed post facto by various resolutions of the Senate and the House, in effect, confirming this
recognition. Thus, Resolution No. 176 expressed x x x the support of the House of
Representatives to the assumption into office by Vice-President Gloria Macapagal-Arroyo as
President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nations goal under the

Constitution.[32] Resolution No. 82 of the Senate and Resolution No. 178 of the House of
Representatives both confirmed the nomination of then Senator Teofisto Guingona, Jr., as VicePresident.[33] It also passed Resolution No. 83 declaring the impeachment court functus officio.
[34]
Both Houses sent bills to respondent Arroyo to be signed by her into law as President of the
Philippines.[35] These acts of Congress, a priori and post facto, cannot be dismissed as merely
implied recognitions of respondent Arroyo, as the President of the Republic. Petitioners
insistence that respondent Arroyo is just a de facto President because said acts of Congress x x x
are mere circumstances of acquiescence calculated to induce people to submit to respondents
exercise of the powers of the presidency[36] is a guesswork far divorced from reality to deserve
further discussion.
Similarly way off the mark is petitioners point that while the Constitution has made
Congress the national board of canvassers for presidential and vice-presidential elections, this
Honorable Court nonetheless remains the sole judge in presidential and vice presidential
contests.[37] He thus postulates that such constitutional provision [38] is indicative of the desire of
the sovereign people to keep out of the hands of Congress questions as to the legality of a
persons claim to the presidential office.[39] Suffice to state that the inference is illogical. Indeed,
there is no room to resort to inference. The Constitution clearly sets out the structure on how
vacancies and election contest in the office of the President shall be decided. Thus, section 7 of
Article VII covers the instance when (a) the President-elect fails to qualify, (b) if a President
shall not have been chosen and (c) if at the beginning of the term of the President, the Presidentelect shall have died or shall have become permanently disabled. Section 8 of Article VII covers
the situation of the death, permanent disability, removal from office or resignation of the
President. Section 11 of Article VII covers the case where the President transmits to the
President of the Senate and the Speaker of the House of Representatives his written declaration
that he is unable to discharge the powers and duties of his office. In each case, the Constitution
specifies the body that will resolve the issues that may arise from the contingency. In case of
election contest, section 4, Article VII provides that the contests shall be resolved by this Court
sitting en banc. In case of resignation of the President, it is not disputed that this Court has
jurisdiction to decide the issue. In case of inability to govern, section 11 of Article VII gives the
Congress the power to adjudge the issue and petitioner himself submitted this thesis which was
shared by this Court. In light of these clear provisions of the Constitution, it is inappropriate, to
say the least, for petitioner to make inferences that simply distort their meanings.
IV

Impeachment and Absolute Immunity

Petitioner contends that this Court disregarded section 3 (7) of Article XI of the Constitution
which provides:

(7) Judgment in cases of impeachment shall not extend further than removal from
office and disqualification to hold any office under the Republic of the Philippines,

but the party convicted should nevertheless be liable and subject to prosecution, trial
and punishment according to law.
Petitioner reiterates the argument that he must be first convicted in the impeachment
proceedings before he could be criminally prosecuted. A plain reading of the provision will not
yield this conclusion. The provision conveys two uncomplicated ideas: first, it tells us that
judgment in impeachment cases has a limited reach. . .i.e., it cannot extend further than removal
from office and disqualification to hold any office under the Republic of the Philippines,
and second, it tells us the consequence of the limited reach of a judgment in impeachment
proceedings considering its nature, i.e., that the party convicted shall still be liable and subject to
prosecution, trial and punishment according to law. No amount of manipulation will justify
petitioners non sequitursubmission that the provision requires that his conviction in the
impeachment proceedings is a condition sine qua non to his prosecution, trial and punishment
for the offenses he is now facing before the respondent Ombudsman.
Petitioner contends that the private and public prosecutors walk out from the impeachment
proceedings should be considered failure to prosecute on the part of the public and private
prosecutors, and the termination of the case by the Senate is equivalent to acquittal.[40] He
explains failure to prosecute as the failure of the prosecution to prove the case, hence dismissal
on such grounds is a dismissal on the merits. [41] He then concludes that dismissal of a case for
failure to prosecute amounts to an acquittal for purposes of applying the rule against double
jeopardy.[42]
Without ruling on the nature of impeachment proceedings, we reject petitioners
submission.
The records will show that the prosecutors walked out in the January 16, 2001 hearing of
the impeachment cases when by a vote of 11-10, the Senator-judges refused to open the second
envelope allegedly containing the P3.3 billion deposit of the petitioner in a secret bank account
under the name Jose Velarde. The next day, January 17, the public prosecutors submitted a letter
to the Speaker of the House tendering their resignation. They also filed their Manifestation of
Withdrawal of Appearance with the impeachment tribunal. Senator Raul Roco immediately
moved for the indefinite suspension of the impeachment proceedings until the House of
Representatives shall have resolved the resignation of the public prosecutors. The Roco
motion was then granted by Chief Justice Davide, Jr. Before the House could resolve the issue
of resignation of its prosecutors or on January 20, 2001, petitioner relinquished the presidency
and respondent Arroyo took her oath as President of the Republic. Thus, on February
7, 2001, the Senate passed Resolution No. 83 declaring that the impeachment court is functus
officio.
Prescinding from these facts, petitioner cannot invoke double jeopardy. Double
jeopardy attaches only: (1) upon a valid complaint; (2) before a competent court; (3) after
arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or
convicted or the case was dismissed or otherwise terminated without the express consent of the
accused.[43]Assuming arguendo that the first four requisites of double jeopardy were complied
with, petitioner failed to satisfy the fifth requisite for he was not acquitted nor was the
impeachment proceeding dismissed without his express consent. Petitioners claim of double
jeopardy cannot be predicated on prior conviction for he was not convicted by the impeachment

court. At best, his claim of previous acquittal may be scrutinized in light of a violation of his
right to speedy trial, which amounts to a failure to prosecute. As Bernas points out, a failure to
prosecute, which is what happens when the accused is not given a speedy trial, means failure of
the prosecution to prove the case. Hence, dismissal on such grounds is a dismissal on the merits.
[44]

This Court held in Esmea v. Pogoy[45], viz:

If the defendant wants to exercise his constitutional right to a speedy trial, he should
ask, not for the dismissal, but for the trial of the case. After the prosecutions motion
for postponement of the trial is denied and upon order of the court the fiscal does not
or cannot produce his evidence and, consequently fails to prove the defendants guilt,
the court upon defendants motion shall dismiss the case, such dismissall amounting to
an acquittal of the defendant.
In a more recent case, this Court held:

It is true that in an unbroken line of cases, we have held that the dismissal of cases on
the ground of failure to prosecute is equivalent to an acquittal that would bar further
prosecution of the accused for the same offense. It must be stressed, however, that
these dismissals were predicated on the clear right of the accused to speedy
trial. These cases are not applicable to the petition at bench considering that the right
of the private respondents to speedy trial has not been violated by the State. For this
reason, private respondents cannot invoke their right against double jeopardy.[46]
Petitioner did not move for the dismissal of the impeachment case against him. Even
assuming arguendo that there was a move for its dismissal, not every invocation of an accuseds
right to speedy trial is meritorious. While the Court accords due importance to an accuseds right
to a speedy trial and adheres to a policy of speedy administration of justice, this right cannot be
invoked loosely. Unjustified postponements which prolong the trial for an unreasonable length of
time are what offend the right of the accused to speedy trial.[47] The following provisions of the
Revised Rules of Criminal Procedure are apropos:

Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions,
the accused shall be entitled to the following rights:
(h) To have speedy, impartial and public trial.
Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once
commenced shall continue from day to day as far as practicable until terminated. It
may be postponed for a reasonable length of time for good cause.
The court shall, after consultation with the prosecutor and defense counsel, set the
case for continuous trial on a weekly or other short-term trial calendar at the earliest

possible time so as to ensure speedy trial. In no case shall the entire trial period
exceed one hundred eighty (180) days from the first day of trial, except as otherwise
authorized by the Supreme Court.
Petitioner therefore failed to show that the postponement of the impeachment
proceedings was unjustified, much less that it was for an unreasonable length of
time. Recalling the facts, on January 17, 2001, the impeachment proceeding was suspended until
the House of Representatives shall have resolved the issue on the resignation of the public
prosecutors. This was justified and understandable for an impeachment proceeding without a
panel of prosecutors is a mockery of the impeachment process. However, three (3) days from the
suspension or January 20, 2001, petitioners resignation supervened. With the sudden turn of
events, the impeachment court became functus officio and the proceedings were therefore
terminated. By no stretch of the imagination can the four-day period from the time the
impeachment proceeding was suspended to the day petitioner resigned, constitute an
unreasonable period of delay violative of the right of the accused to speedy trial.
Nor can the claim of double jeopardy be grounded on the dismissal or termination of
the case without the express consent of the accused. We reiterate that the impeachment
proceeding was closed only after the petitioner had resigned from the presidency, thereby
rendering the impeachment court functus officio. By resigning from the presidency, petitioner
more than consented to the termination of the impeachmment case against him, for he brought
about the termination of the impeachment proceedings. We have consistently ruled that when the
dismissal or termination of the case is made at the instance of the accused, there is no double
jeopardy.[48]
Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from
suit. His arguments are merely recycled and we need not prolong the longevity of the debate on
the subject. In our Decision, we exhaustively traced the origin of executive immunity in our
jurisdiction and its bends and turns up to the present time. We held that given the intent of the
1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner,
as a non-sitting President, cannot claim executive immunity for his alleged criminal acts
committed while a sitting President. Petitioners rehashed arguments including their thinly
disguised new spins are based on the rejected contention that he is still President, albeit, a
President on leave. His stance that his immunity covers his entire term of office or until June 30,
2004 disregards the reality that he has relinquished the presidency and there is now a new de
jurePresident.
Petitioner goes a step further and avers that even a non-sitting President enjoys immunity
from suit during his term of office. He buttresses his position with the deliberations of the
Constitutional Commission, viz:

Mr. Suarez. Thank you.


The last question is with reference to the Committees omitting in the draft proposal
the immunity provision for the President. I agree with Commissioner Nolledo that the
Committee did very well in striking out this second sentence, at the very least, of the
original provision on immunity from suit under the 1973 Constitution. But would the

Committee members not agree to a restoration of at least the first sentence that the
President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing
litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?
Fr. Bernas: The reason for the omission is that we consider it understood in present jurisprudence that
during his tenure he is immune from suit.
Mr. Suarez: So there is no need to express it here.
Fr. Bernas: There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.
Mr. Suarez; On the understanding, I will not press for any more query, madam President.

I thank the Commissioner for the clarification. [49]


Petitioner, however, fails to distinguish between term and tenure. The term means the
time during which the officer may claim to hold the office as of right, and fixes the interval after
which the several incumbents shall succeed one another. The tenure represents the term during
which the incumbent actually holds office. The tenure may be shorter than the term for reasons
within or beyond the power of the incumbent.[50] From the deliberations, the intent of the
framers is clear that the immunity of the president from suit is concurrent only with his
tenure and not his term.
Indeed, petitioners stubborn stance cannot but bolster the belief that the cases at bar were
filed not really for petitioner to reclaim the presidency but just to take advantage of the immunity
attached to the presidency and thus, derail the investigation of the criminal cases pending against
him in the Office of the Ombudsman.
V

Prejudicial Publicity on the Ombudsman

Petitioner hangs tough on his submission that his due process rights to a fair trial have been
prejudiced by pre-trial publicity. In our Decision, we held that there is not enough evidence to
sustain petitioners claim of prejudicial publicity. Unconvinced, petitioner alleges that the vivid
narration of events in our Decision itself proves the pervasiveness of the prejudicial publicity. He
then posits the thesis that doubtless, the national fixation with the probable guilt of petitioner
fueled by the hate campaign launched by some high circulation newspaper and by the bully
pulpit of priests and bishops left indelible impression on all sectors of the citizenry
and all regions, so harsh and so pervasive that the prosecution and the judiciary can no longer
assure petitioner a sporting chance.[51] To be sure, petitioner engages in exageration when he
alleges that all sectors of the citizenry and all regions have been irrevocably influenced by this

barrage of prejudicial publicity. This exaggeration collides with petitioners claim that he still
enjoys the support of the majority of our people, especially the masses.
Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or the transaction
speaks for itself) to support his argument. Under the res ipsa loquitur rule in its broad sense, the
fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and
present a question of fact for defendant to meet with an explanation. [52] It is not a rule of
substantive law but more a procedural rule. Its mere invocation does not exempt the plaintiff
with the requirement of proof to prove negligence. It merely allows the plaintiff to present along
with the proof of the accident, enough of the attending circumstances to invoke the doctrine,
creating an inference or presumption of negligence and to thereby place on the defendant the
burden of going forward with the proof.[53]
We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule usually applied
only in tort cases, to the cases at bar. Indeed, there is no court in the whole world that has
applied the res ipsa loquitur rule to resolve the issue of prejudicial publicity. We again stress
that the issue before us is whether the alleged pervasive publicity of the cases against the
petitioner has prejudiced the minds of the members of the panel of investigators. We reiterate the
test we laid down in People v. Teehankee,[54] to resolve this issue, viz:

We cannot sustain appellants claim that he was denied the right to impartial trial due
to prejudicial publicity. It is true that the print and broadcast media gave the case at
bar pervasive publicity, just like all high profile and high stake criminal trials. Then
and now, we rule that the right of an accused to a fair trial is not incompatible to a
free press. To be sure, responsible reporting enhances an accuseds right to a fair trial
for, as well pointed out , a responsible press has always been regarded as the
handmaiden of effective judicial administration, especially in the criminal field x x
x. The press does not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The
mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated the mind of the trial judge and
impaired his impartiality. For one, it is impossible to seal the minds of members of the
bench from pre-trial and other off-court publicity of sensational criminal cases. The
state of the art of our communication system brings news as hey happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, our idea of a fair and impartial
judge is not that of a hermit who is out of touch with the world. We have not installed
the jury system whose members are overly protected from publicity lest they lost their
impartiality. x x x x x x x x x. Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to a

litigation. Their mere exposure to publications and publicity stunts does not per
se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial
judge due to the barrage of publicity that characterized the investigation and trial of
the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of
possibility of prejudice and adopted the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, the records do not show that the trial judge
developed actual bias against appellant as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of circumstances of the
case does not prove that the trial judge acquired a fixed opinion as a result of
prejudicial publicity which is incapable of change even by evidence presented during
the trial. Appellant has the burden to prove this actual bias and he has not discharged
the burden.
Petitioner keeps on pounding on the adverse publicity against him but fails to prove
how the impartiality of the panel of investigators from the Office of the Ombudsman has
been infected by it. As we held before and we hold it again, petitioner has completely failed to
adduce any proof of actual prejudice developed by the members of the Panel of
Investigators. This fact must be established by clear and convincing evidence and cannot be left
to loose surmises and conjectures. In fact, petitioner did not even identify the members of the
Panel of Investigators.We cannot replace this test of actual prejudice with the rule of res ipsa
loquitur as suggested by the petitioner. The latter rule assumes that an injury (i.e., prejudicial
publicity) has been suffered and then shifts the burden to the panel of investigators to prove that
the impartiality of its members has been affected by said publicity. Such a rule will overturn our
case law that pervasive publicity is not per se prejudicial to the right of an accused to fair
trial. The cases are not wanting where an accused has been acquitted despite pervasive publicity.
[55]
For this reason, we continue to hold that it is not enough for petitioner to conjure possibility of
prejudice but must prove actual prejudice on the part of his investigators for the Court to sustain his
plea. It is plain that petitioner has failed to do so.
Petitioner agains suggests that the Court should order a 2-month cooling off period to allow
passions to subside and hopefully the alleged prejudicial publicity against him would die
down.We regret not to acquiesce to the proposal. There is no assurance that the so called 2month cooling off period will achieve its purpose. The investigation of the petitioner is a natural
media event.It is the first time in our history that a President will be investigated by the Office of
the Ombudsman for alleged commission of heinous crimes while a sitting President. His
investigation will even be monitored by the foreign press all over the world in view of its legal
and historic significance. In other words, petitioner cannot avoid the kleiglight of publicity. But
what is important for the petitioner is that his constitutional rights are not violated in the
process of investigation. For this reason, we have warned the respondent Ombudsman in our
Decision to conduct petitioners preliminary investigation in a circus-free atmosphere. Petitioner
is represented by brilliant legal minds who can protect his right as an accused.

VI

Recusation

Finally, petitioner prays that the members of this Honorable Court who went to EDSA put
on record who they were and consider recusing or inhibiting themselves, particularly those who
had ex-parte contacts with those exerting pressure on this Honorable Court, as mentioned in our
Motion of March 9, 2001, given the need for the cold neutrality of impartial judges.[56]
We hold that the prayer lacks merit. There is no ground to inhibit the twelve (12)
members of the Court who merely accepted the invitation of the respondent Arroyo to attend her
oath taking. As mere spectators of a historic event, said members of the Court did not
prejudge the legal basis of the claim of respondent Arroyo to the presidency at the time she took
her oath.Indeed, the Court in its en banc resolution on January 22, 2001, the first working day
after respondent Arroyo took her oath as President, held in Administrative Matter No. 01-1-05
SC, to wit:

A.M. No. 01-1-05-SC In re: Request for Vice President Gloria Macapagal-Arroyo to
Take Her Oath of Office as President of the Republic of the Philippines before the
Chief Justice Acting on the urgent request of Vice President Gloria Macapagal-Arroyo
to be sworn in as President of the Republic of the Philippines, addressed to the Chief
Justice and confirmed by a letter to the Court, dated January 20, 2001, which request
was treated as an administrative matter, the court Resolved unanimously to confirm
the authority given by the twelve (12) members of the Court then present to the Chief
Justice on January 20, 2001 to administer the oath of office to Vice President Gloria
Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that may
be filed by a proper party.
The above resolution was unanimously passed by the 15 members of the Court. It should be
clear from the resolution that the Court did not treat the letter of respondent Arroyo to be
administered the oath by Chief Justice Davide, Jr., as a case but as an administrative matter. If it
were considered as a case, then petitioner has reason to fear that the Court has
predetermined the legitimacy of the claim of respondent Arroyo to the presidency. To dispel
the erroneous notion, the Court precisely treated the letter as an administrative matter and
emphasized that it was without prejudice to the disposition of any justiciable case that may
be filed by a proper party. In further clarification, the Court on February 20, 2001
issuedanother resolution to inform the parties and the public that it xxx did not issue a
resolution on January 20, 2001 declaring the office of the President vacant and that neither did
the Chief Justice issue a press statement justifying the alleged resolution. Thus, there is no
reason for petitioner to request for the said twelve (12) justices to recuse themselves. To be
sure, a motion to inhibit filed by a party after losing his case is suspect and is regarded with
general disfavor.

Moreover, to disqualify any of the members of the Court, particularly a majority of them, is
nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that
judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the
case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to
the deprivation of the judicial power of the court itself. It affects the very heart of judicial
independence.[57] The proposed mass disqualification, if sanctioned and ordered, would leave the
Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the
participation of its entire membership of Justices.[58]
IN VIEW WHEREOF, petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and
his Omnibus Motion in G.R. No. 146738 are DENIED for lack of merit.
SO ORDERED.
Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., no part for reason given in open court and in the extended explanation.
Vitug, J., see separate concurring opinion.
Mendoza, J., see concurring opinion.
Kapunan, J., concurs on the result but strongly reiterate my separate opinion in the case.
Ynares-Santiago, J., concurs in the result but maintains separate opinion in the main
Decision.
Sandoval-Gutierrez, J., concurs in the result subject to separate opinion in the main
Decision.
Panganiban, J., no part see Extended Explanation of Inhibition prom. on March 8, 2001.

Decision, p. 35.

[2]

63C Am Jur 2d Public Officers and Employees, section 158.

[3]

See e.g., Comment of respondents de Vera, Funa and Capulong, p. 26; Rollo, Vol II. p. 204: Memorandum of
respondent Capulong Rollo, Vol. III, pp. 661, et seq.
[4]

See paragraph 6.1 on p. 5 of petitioners Second Supplemental Reply Memorandum.

[5]

Id., see paragraph 7 on pp. 7-8.

[6]

The myth of hearsay is that no one understands it, and students and practicing lawyers always make mistakes
about it. Best, Evidence, 59 (3rd ed., p. 59, 1999).
[7]

Francisco, Evidence, 513 citing 33 CJS 919.

[8]

Mueller and Kirkpatrick, Evidence under the Rules 116-117 (2nd ed., 1993); McCormick Evidence 93-94

[9]

See, generally, Swift, One Hundred Years of Evidence Law Reform: Thayers Triumph, 88 Cal. L. Rev. No. 6,
2437-2476 (2000). Swifts thesis is that the view of Thayer and other major twentieth century reformers advocating
increased discretion of trial judges to admit or exclude evidence has prevailed.
[10]

Evidence, Cases and Materials 473-474 (9th ed.). As well put by author Best, supra, p. 87, the supreme irony of
the hearsay doctrine is that a vast amount of hearsay is admissible at common law and under the Federal Rules. Our
hearsay rules are American in origin.

[11]

Admissions of a party should not be confused with declarations against interest, judicial admission and
confessions.
Admission distinguished from declaration against interest. An admission is distinguishable from a declaration
against interest in several respects. The admission is primary evidence and is receivable, although the declarant is
available as a witness; it is competent only when the declarant, or someone identified in legal interest with him, is a
party to the action; and need not have been considered by the decalrant as opposed to his interest at the time when it
was made. The declaration against interest is in the nature of secondary evidence, receivable only when the declarant
is unavailable as a witness; it is competent in any action to which it is relevant, although the declarant is not a party
to, or in privity with, any party to the action; and it must have been, when made, to the knowledge of the declarant,
against his obvious and real interest. (VIII Francisco, Evidence, 304 [1997 ed.])
Admission distinguished from confession.- The term admission is distinguished from that of confession. The former
is applied to civil transactions and to matters of fact in criminal cases not involving criminal intent, the latter to
acknowledgements of guilt in crimnal cases. (id., p. 303)
Judicial and extra-judicial admission defined.- A judicial admission is one so made in pleadings filed or in the
progress of a trial as to dispense with the introduction of evidence otherwise necessary to dispense with some rules
of practice necessary to be observed and complied with.
Extra-judicial admission is one made out of court.
The most important distinction between judicial and other admissions, is that strictly, judicial admissions are
conclusive upon the party making them, while other admissions are, as a rule and where the elements of estoppel are
not present, disputable. (id., p. 90)
[12]

Herrera, Evidence, 315-316.

[13]

Best, op cit., p. 90.

[14]

Herrera, op cit., p. 371, citing 2 Jones Sec. 13-28.

[15]

Evidence Under the Rules, 216 (2nd ed., 1993).

[16]

Section 32, Rule 130 provides: An act or declaration made in the presence and within the hearing or observation
of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if
not true, and when proper and possible for him to do so, may be given in evidence against him.
[17]

Phil. Daily Inquirer, February 5, 2001, p. A6.

[18]

Id., February 6, 2001, p. 1; Rollo, Vol. II, p. 250.

[19]

Section 29, Rule 130 states: the act or declaration of a partner or agent of the party within the scope of his
authority and during the existence of the partnership or agency, may be given in evidence against such party after the
partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other person jointly interested with the party.
[20]

Jones on Evidence, S. 944, p. 1741.

[21]

Moran, Evidence3, 298.

[22]

Jones, op cit., S. 1088, p. 2010.

[23]

Omnibus Motion, pp. 24-25, footnotes omitted.

[24]

Wigmore on Evidence, sec. 1191, p. 334.

[25]

Francisco, The Revised Rules of Court in the Philippines: Evidence 139 (1999), citing I Jones on Evidence, 390391.
[26]

Id., citing People v. Stuckrath, 64 Cal. App. 84, 220, p. 433; see also Suddayao, et al.v. Agatep, et al., 46 Off. Gaz.
1119.
[27]

Francisco, supra, p.129.

[28]

236 SCRA 505 (1994).

[29]

See Decision, p. 41.

[30]

See Petition in G.R. No. 146738, p. 7, further stating that no one apparently was around or willing to receive the
letter to the Senate President earlier.
[31]

See Annex A-1, Petition in G.R. No. 146738.

[32]

Decision, p. 12.

[33]

Decision, p. 13.

[34]

Ibid.

[35]

Decision, p. 12.

[36]

Omnibus Motion, p. 37.

[37]

Id., pp. 38-39.

[38]

Id., p. 39.

[39]

Section 4, Article VII of the Constitution states in part: The Supreme Court sitting en banc, shall be the sole judge
of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may
promulgate its rules for the purpose.
[40]

Motion for Reconsideration, p. 5.

[41]

Id., p. 5, citing Bernas, The 1987 Constitution of the Philippines: A Commentary, 1996, p. 532.

[42]

Id., p. 5, citing People v. Diaz, 94 Phil. 714 and People v. Robles, 105 Phil. 1016.

[43]

Tecson v. Sandiganbayan, 318 SCRA 80 (1999).

[44]

Bernas, The Constitution of the Republic of the Philippines: A Commentary, 1987, p. 470.

[45]

102 SCRA 861 (1981), citing 4 Morans Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela v.
Lutero, 88 Phil. 299, 307 and People v. Diaz, 94 Phil. 714, 717.
[46]

People v. Leviste, 255 SCRA 238 (1996), citing People v. Tampal, 244 SCRA 202 (1995).

[47]

Tai Lim v. Court of Appeals, 317 SCRA 521 (1999).

[48]

People v. Quizada, 160 SCRA 516; Sta. Rita v. Court of Appeals, 247 SCRA 484; People v. Leviste, supra.

[49]

Motion for Reconsideration, GR Nos. 146710-15, p. 17.

[50]

Topacio Nueno, et al. vs. Angeles, et al., 76 Phil. 12, 21- 22.

[51]

Motion for Reconsideration, p. 27.

[52]

57B Am Jur 2d 493 (1989).

[53]

Ibid., pp. 502-503.

[54]

249 SCRA 54 (1995); see Martelino et al. v. Alejandro, et al., 32 SCRA 106 (1970); Webb v. de Leon, etc., 247
SCRA 652 (1995); Larranaga v. CA, et al., 289 SCRA 581 (1998).
[55]

People v. Ritter, 194 SCRA 690 (1991).

[56]

Omnibus Motion, p.55.

[57]

Vargas v. Rilloraza, et al., 80 Phil. 297 (1948).

[58]

Abbas, et al., v. Senate Electoral Tribunal, 166 SCRA 651 (1988).

Republic of the Philippines


SUPREME COURT
Manila
PRESIDENTIAL ELECTORAL TRIBUNAL
P.E.T. Case No. 003

January 18, 2008

LOREN B. LEGARDA, protestant,


vs.
NOLI L. DE CASTRO, protestee.
RESOLUTION
QUISUMBING, J.:
On June 23, 2004, Congress sitting as the National Board of Canvassers (NBC)
proclaimed1 protestee Noli L. de Castro the duly elected Vice-President of the Republic of the
Philippines. The official count of the votes cast for Vice-President in the May 10, 2004 elections
showed that the protestee obtained the highest number of votes, garnering 15,100,431 votes as
against the 14,218,709 votes garnered by the protestant Loren B. Legarda, who placed second, in a
field consisting of four candidates for Vice-President.
On July 23, 2004, the protestant filed this protest with this Tribunal praying for the annulment of the
protestee's proclamation as the duly elected Vice-President of the Republic of the Philippines. 2
The protest has two main parts. The First Aspect originally covered "all the erroneous, if not
manipulated, and falsified results as reflected in the final canvass documents" for 9,007 precincts in
six provinces, one city and five municipalities.3 Protestant avers that the correct results appearing in
the election returns were not properly transferred and reflected in the subsequent election
documents and ultimately, in the final canvass of documents used as basis for protestee's
proclamation. Protestant seeks the recomputation, recanvass and retabulation of the election returns
to determine the true result.
The Second Aspect required revision of ballots in 124,404 precincts specified in the protest. 4
The Tribunal confirmed its jurisdiction over the protest and denied the motion of protestee for its
outright dismissal. Protestee filed a motion for reconsideration arguing in the main that the Tribunal
erred in ruling that the protest alleged a cause of action sufficient to contest protestee's victory in the
May 2004 elections.5
On March 31, 2005, the Tribunal ruled that:
On the matter of sufficiency of the protest, protestee failed to adduce new substantial
arguments to reverse our ruling. We hold that while Pea v. House of Representatives
Electoral Tribunal on requisites of sufficiency of election protest is still good law, it is
inapplicable in this case. We dismissed the petition inPea because it failed to specify the
contested precincts. In the instant protest, protestant enumerated all the provinces,
municipalities and cities where she questions all the results in all the precincts therein.
The protest here is sufficient in form and substantively, serious enough on its face to pose a

challenge to protestee's title to his office. In our view, the instant protest consists of alleged
ultimate facts, not mere conclusions of law, that need to be proven in due time.
Considering that we find the protest sufficient in form and substance, we must again stress
that nothing as yet has been proved as to the veracity of the allegations. The protest is
only sufficient for the Tribunal to proceed and give the protestant the opportunity to prove her
case pursuant to Rule 61 of the PET Rules. Although said rule only pertains to revision of
ballots, nothing herein prevents the Tribunal from allowing or including the correction of
manifest errors, pursuant to the Tribunal's rule-making power under Section 4, Article VII of
the Constitution.
On a related matter, the protestant in her reiterating motion prays for ocular inspection and
inventory-taking of ballot boxes, and appointment of watchers. However, the Tribunal has
already ordered the protection and safeguarding of the subject ballot boxes; and it has
issued also the appropriate directives to officials concerned. At this point, we find no showing
of an imperative need for the relief prayed for, since protective and safeguard measures are
already being undertaken by the custodians of the subject ballot boxes.
WHEREFORE, protestee's motion for reconsideration is hereby DENIED WITH
FINALITY for lack of merit. Protestant's reiterating motion for ocular inspection and
inventory-taking with very urgent prayer for the appointment of watchers is also DENIED for
lack of showing as to its actual necessity.
Further, the protestant LOREN B. LEGARDA is ORDERED to specify, within ten (10) days
from notice, the three (3) provinces best exemplifying the manifest errors alleged in the first
part of her protest, and three (3) provinces best exemplifying the frauds and irregularities
alleged in the second part of her protest, for the purpose herein elucidated.
Lastly, the Tribunal hereby ORDERS the Commission on Elections to SUBMIT, within 30
days hereof, the official project of precincts of the May 2004 Elections.
SO ORDERED.6
On April 11, 2005, protestant identified three (3) provinces as pilot areas best exemplifying her
grounds for theFirst Aspect of the protest. She chose the provinces of Lanao del Sur, Lanao del
Norte, and Surigao del Sur with the following number of protested precincts: 1,607, 2,346 and 350,
respectively, or a total of 4,303 out of the original 9,007 precincts.7
On June 21, 2005, the Tribunal ascertained8 the number of ballot boxes subject of the protest, to wit:
The Tribunal Resolved to NOTE the Letter dated 30 May 2005 filed by Executive Director Pio
Jose S. Joson, COMELEC, in compliance with the Letter dated 14 April 2005 of Atty.
Luzviminda D. Puno, Acting Clerk of the Tribunal, informing the Tribunal that one thousand
four hundred fifty-four (1,454) ballot boxes are involved in the precincts of the province of
Surigao del Sur which the protestant has identified to the Tribunal as best exemplifying the
irregularities in connection with the 10 May 2004 National and Local Elections.
Accordingly, without prejudice to its recomputation, the number of ballot boxes involved in
the precincts of the provinces which the protestant has identified to the Tribunal as best
exemplifying the irregularities in connection with the said elections are as follows:

Lanao del Sur

1,568

Lanao del Norte

2,317

Surigao del Sur

1,454

Cebu City

10,127

Pampanga

5,458

Maguindanao

1,755

Total

22,679 ballot boxes involved in the precincts

x P500.00

P11,339,500.00

On November 2, 2005 protestant moved to withdraw and abandon almost all pilot precincts in
the First Aspectexcept those in the province of Lanao del Sur.9 On November 22, 2005, the Tribunal
granted the said motion withdrawing and abandoning the protest involving the manifest errors in the
municipalities of Lanao del Norte and Surigao del Sur.10
Thereafter, proceedings duly ensued concerning both the First and Second Aspects. Former
Associate Justice Bernardo P. Pardo as Hearing Commissioner 11 heard the presentation of evidence
of both parties for the First Aspect. Subpoenas were issued to the witnesses of the protestant, e.g.
the President/General Manager of Ernest Printing Corporation12 and then Commission on Elections
Chairman Benjamin Abalos.13 On August 28, 2006, a preliminary conference was called by Hearing
Commissioner Bernardo P. Pardo to schedule the presentation of evidence. The latter then ordered
as follows:
Pursuant to the Resolution of the Tribunal dated 22 August 2006, setting the preliminary
conference of the parties with the Hearing Commissioner today, the designated Hearing
Commissioner called the preliminary conference in order to consider the order of hearing

and presentation of evidence of the parties according to the procedure prescribed in the
Resolution of the Tribunal of 1 August 2006, under paragraph B (1 and 2).
The following are the appearances:
1) Protestant Loren B. Legarda, in person;
2) Atty. Sixto S. Brillantes, Jr. and Atty. Jesus P. Casila, for the protestant;
3) Protestee Noli L. de Castro did not appear;
4) Atty. Armando M. Marcelo and Atty. Carlo Vistan, for the protestee.
Atty. Brillantes manifested that the protestant is ready to adduce testimonial and
documentary evidence on a date to be scheduled and agreed upon by the parties; they have
about seven witnesses to testify on the first aspect as indicated in the Tribunal's Resolution
of 1 August 2006. He suggested 6 September 2006 as the initial date of the hearing. Atty.
Marcelo stated that he was leaving for abroad on 6 September 2006 for one month and
suggested a hearing after his return in October 2006. At any rate, protestee has a pending
motion for reconsideration of the Tribunal's Resolution of 22 August 2006 designating a
retired Justice of the Supreme Court as Hearing Commissioner. They wanted an incumbent
Justice of the Supreme Court or an official of the Tribunal who is a member of the Bar to be
the designated Hearing Commissioner.
The undersigned Hearing Commissioner suggested that the initial hearing be held on 4
September 2006, at 10:00 a.m., when protestee's counsel will still be in town, without
prejudice to the resolution of the Tribunal on his motion for reconsideration.
The undersigned Hearing Commissioner suggested to protestant's counsel to submit by this
afternoon the list of the names of the proposed witnesses and documents to be produced so
that the proper process may be issued to them.
The undersigned Hearing Commissioner set the initial hearing tentatively on Monday, 4
September 2006, at 10:00 a.m., at the same venue, subject to the Tribunal's ruling on
protestee's motion for reconsideration of the person of the Hearing Commissioner, and
protestant to submit by this afternoon the list of witnesses and documents to be produced at
the hearing.
IT IS SO ORDERED.14
Several hearings on the First Aspect were held wherein the protestant adduced evidence and the
protestee interposed his continuing objection to such in the form of motions and comments. Months
of continuous trial took place until the Hearing Commissioner made his final report of the
proceedings for detailed consideration by the Tribunal.
On January 31, 2006, while the case was sub judice, the Tribunal ordered both parties to refrain
from sensationalizing the case in the media. Its extended resolution on the matter reads as follows:
On December 12, 2005, the re-tabulation of election returns (ERs) from the ten (10)
protested municipalities of Lanao del Sur commenced. According to the report submitted by
the Acting Clerk of the Tribunal, Atty. Maria Luisa D. Villarama, the correction team was able

to re-tabulate only the ERs from four (4) of the ten (10) protested municipalities of Lanao del
Sur, namely, Balindong, Masiu, Mulondo and Taraka. The ERs of the other six (6) protested
municipalities were not found inside the ballot boxes collected from the House of
Representatives, but found were the ERs from municipalities not subject of the protest.
Therefore, acting on the aforementioned report of the Acting Clerk, the Tribunal resolves
to REQUIRE Hon. Roberto Nazareno, Secretary General of the House of Representatives
and Atty. Artemio Adasa, Jr., Deputy Secretary General for Operation, of the House of
Representatives, within a non-extendible period of five (5) days from notice, to
(a) DELIVER to the Tribunal the election returns and other election
documents/paraphernalia used in the May 2004 National/Local elections for the
remaining six (6) protested municipalities of Lanao del Sur, namely (1) BacolodKalawi; (2) Ganassi; (3) Kapai; (4) Sultan Gumander; (5) Tamparan; and (6) Wao;
(b) EXPLAIN why the election returns and other election documents and
paraphernalia which were turned over to the PET Retrieval Team are incomplete
when compared to the COMELEC's total number of clustered precincts for Lanao del
Sur; and
(c) SUBMIT to the Tribunal the complete list of all the election returns,
Provincial/District Certificates of Canvass and Statements of Votes and other election
documents and paraphernalia used in the May 2004 National and Local Elections for
the province of Lanao del Sur which were in its official custody.
In the resolution dated December 6, 2005, the Tribunal granted protestant's motion to
suspend the remittance of additional cash deposit amounting to P3,882,000 as required in
the resolution of November 22, 2005. Protestant also manifested in said motion that she will
make the required cash deposit sometime in the year 2006. Thus, the Tribunal resolves
to REQUIRE protestant to comply with the resolution of November 22, 2005 requiring her to
make additional cash deposit of P3,882,000 within ten (10) days.
On another matter, the Presidential Electoral Tribunal notes the following news reports:
(1) In an article entitled "Recount shows fraud, says Legarda" appearing in the
December 13, 2005 issue of The Manila Times, protestant Legarda said that the
election returns from Congress had been tampered after initial retabulation of votes
by the Tribunal showed that the lead of protestee De Castro over her has widened.
She added that this discovery confirmed her claim of massive poll fraud in favor of
protestee in the 2004 election.
(2) In an article entitled "Intel feelers offer proof of poll fraud to Loren" published in
the December 13, 2005 issue of The Daily Tribune, sources from protestant's legal
team said that feelers from the military's intelligence service arm have reached their
camp offering videotapes of cheating in the 2004 elections for a price they cannot
afford.
(3) In another article entitled "Election returns altered inside Congress-Loren"
published in the December 15, 2005 issue of Philippine Daily Inquirer, protestant
claimed that the altering of election returns from Lanao del Sur occurred right inside
Congress as borne out by the "spurious" returns being retabulated by the Tribunal.
She said the crime could have been perpetrated by the operatives of protestee.

(4) In a news article entitled "Cebu recount shows Noli, Loren votes tally with NBC"
appearing in the January 6, 2006 issue of The Manila Times, Atty. Romulo Macalintal,
counsel of protestee, stated that "the initial recount in Lapu-lapu showed that there
was no tampering of the ballot boxes in the city," and further noted that the four (4)
out of the 40 ballot boxes "contained tampered or spurious ballots, but these are not
connected to the protest of Senator Legarda but on local protests."
(5) In an article entitled "Noli condemns tampering of ballots" appearing in the
January 6, 2006 issue of Manila Standard Today, Atty. Armando Marcelo said that
their revisors at the PET discovered that several ballots of Legarda had been
substituted with fake and spurious ballots. Atty. Macalintal added that "the
substitution of ballots was so clear, that the security markings of the substitute ballots
were not reflected or visible or that the ultraviolet markings of the COMELEC seal do
not appear or are not present", and that "these ultraviolet markings are readily visible
in a genuine ballot once lighted with an ultraviolet light."
(6) In an article entitled "No cheating in Cebu, Noli's lawyer insists," published in the
January 19, 2006 issue of Philippine Daily Inquirer, Atty. Macalintal said that "the
results of the actual count of the ballots for Legarda and De Castro from the cities of
Mandaue and Lapu-lapu tallied with the results as reflected in the election returns
and tally boards. There was no sign of any tampering of the results of the ballot count
as well as the votes reflected on the returns and tally boards." He also said that
protestant Legarda is already estopped from questioning the results of the election in
these cities since she failed to object to the returns.
(7) In an article entitled "GMA-Noli poll win in Cebu affirmed," published in the
January 19, 2006 issue of The Philippine Star, it was reported that Atty. Macalintal, in
his speech before the Rotary Club of Pasay City, denied protestant's claim that 90
percent of the ballots from two major cities of the province were found to be spurious
by the Tribunal. He added that "if a candidate would allow himself to be cheated by
90 percent, then he or she has no business to be in politics."
(8) In an article entitled "Why Noli is unacceptable" appearing in the January 20,
2006 issue of The Daily Tribune, protestant "told the media that the real ballots from
Mandaue City and Lapu-lapu City were 'clearly substituted with fakes so that they
would correspond with the similarly spurious results reflected in the election returns
(ERs).'"
Surely, the parties do not harbor the idea that the re-tabulation of election returns and
revision of ballots is the end of the election protest. They are merely the first phase of the
process and must still pass closer scrutiny by the Tribunal.
The great public interest at stake behooves the Tribunal to exercise its power and render
judgment free from public pressure and uninterrupted by the parties' penchant for media
mileage. Therefore, in view of the foregoing reports where press statements of both parties
appeared as an attempt to influence the proceedings, convince the public of their version of
facts, and create bias, prejudice and sympathies, the Tribunal resolves to WARN both parties
and counsels from making public comments on all matters that aresub judice.
Finally, acting on the pleadings filed in this electoral protest case, the Tribunal further
Resolves to

(a) NOTE the Comment on Protestee's Motion to Allow Revisors to Examine All
Ballots dated January 24, 2006, filed by counsel for protestant Legarda, in
compliance with the resolution of January 17, 2006, informing the Tribunal that she
interposes no objection and opposition to the motion and GRANT the aforesaid
motion of the protestee;
(b) DIRECT all Head Revisors to ALLOW the parties to examine the ballots within a
reasonable time;
(c) NOTE the Manifestation dated January 24, 2006, filed by counsel for protestant
relative to the Motion to Intervene filed by Intervenor/Movant Amytis D. Batao,
informing the Tribunal that she is not waiving the revision of the thirty-five (35) ballot
boxes subject of the electoral protest for the mayoralty post of Carmen, Cebu, and
proposing that priority be given and extended to the same so that upon completion of
the revision by the Tribunal, said ballot boxes can be returned to the Regional Trial
Court of Mandaue City, at the earliest time possible; and
(d) DENY the above Motion to Intervene of Intervenor/Movant Amytis D. Batao, with
regard to the return of the ballot boxes considering that the Tribunal has priority in
their possession and examination." Ynares Santiago, J., no part. 15
Revision of ballots was also conducted for the Second Aspect in the Tribunal's premises by the duly
designated officials and trained personnel with both parties duly represented. After ten months of
continuous work by twenty-four revision teams, under the supervision of Atty. Orlando Cario as the
designated Consultant, the revision of the ballots from the pilot province of Cebu was completed.
Revision also started for the second pilot province of Pampanga, but was suspended after the
Tribunal granted the protestee's Motion for Partial Determination of Election Protest Based on the
Results of the Revision of Ballots of the Province of Cebu and the Recanvass of Election Returns
from Lanao Del Sur and to Hold in Abeyance Revision of Ballots from Pampanga. 16
On May 3, 2007, the protestant was required to deposit P3,914,500 for expenses necessary for the
continuation of the revision of ballots.17 But protestant failed to pay on the due date. Thus, protestee
moved to dismiss the protest. The Tribunal extended the period for protestant to make the necessary
deposit. Even with this extension, she still failed to pay. Thus, in a Resolution dated June 5, 2007,
the Tribunal partially granted the protestee's motion to dismiss pursuant to Rule 33 18 of PET rules,
and ordered the dismissal of the Second Aspect of the protest as follows:
PET Case No. 003 (Loren B. Legarda vs. Noli L. de Castro). - Acting on the protestee's
Motion to Dismiss dated May 9, 2007, the Tribunal Resolved to
(a) PARTIALLY GRANT the aforesaid motion pursuant to Rule 33 of the 2005 PET
Rules; and
(b) DISMISS the second aspect of the protest (revision of ballots), for protestant's
failure to make the required deposit.
The Tribunal further Resolved to DENY the request of Atty. Eric C. Reginaldo in his letter
dated May 29, 2007 that he be furnished with a copy of the petition in this case for case
study, as he is neither a party nor a counsel of any party in this protest. 19

On June 13, 2007, Hearing Commissioner Bernardo P. Pardo submitted to the Tribunal a Report of
the Proceedings of the First Aspect.20
On June 18 2007, protestant filed an Urgent Motion to Resolve First Aspect of the Protest, stating
that she formally moved for the immediate resolution of the submitted portion of the First Aspect of
the protest.21Protestee did not interpose any objection to this motion.
On July 10, 2007, the Tribunal resolved to note the report of the Hearing Commissioner. In response
to the motion filed by the protestant, the Tribunal required the parties to submit their respective
memoranda within twenty days from notice, pursuant to Rule 6122 of the PET Rules.23
On August 2, 2007, by counsel protestant submitted her memorandum.24 On August 16, 2007, also
by counsel protestee filed his memorandum.25
On October 1, 2007, Hearing Commissioner Bernardo P. Pardo submitted his Final Report of the
Proceedings on the First Aspect. After a thorough analysis of the parties' memoranda and the results
of the proceedings on the protest, he recommended the dismissal of the First Aspect.26
For her part, protestant filed a memorandum stating that based on the pieces of evidence she
presented, both documentary and testimonial, she has shown that electoral fraud or cheating was
committed through the so-called dagdag-bawas strategy in the elections for President and VicePresident held last May 14, 2004. Protestant in particular submitted that electoral fraud was
perpetuated as follows:
1. That the correct votes of the parties were properly recorded and tabulated in the election
returns (ERs), wherein she garnered a higher number of votes over protestee De Castro; 27
2. That when the ERs were canvassed at the municipal level, the ER results were "wrongly
and erroneously" transposed and transferred to the Statement of Votes by Precinct (SOV-P),
such that the protestee was given a higher number of votes;28
3. That the inaccurate results shown in the SOV-P were totaled and transferred to the
Municipal Certificate of Canvass (MCOC), with protestee prevailing over protestant; 29
4. That the MCOC, with incorrect totals, was transmitted to the Provincial Board of
Canvassers, wherein the inaccurate MCOC totals were transposed to the Statement of Votes
by Municipalities (SOV-M);30
5. That the numbers reflected in the individual SOV-Ms were totaled, and the sum for the
whole province was indicated in the Provincial Certificate of Canvass (PCOC); 31
6. That the PCOCs, with the erroneously transposed totals stemming from the incorrect
SOV-Ps, were the ones canvassed by Congress, acting as the National Board of Canvassers
for the presidential and vice-presidential positions;32 and
7. That Congress, sitting as the National Board of Canvassers, merely "noted" and denied
protestant's request to view the precinct-source ERs, and proceeded to canvass the
"already-manipulated/dagdag-bawas" PCOCs, resulting in the flawed and farcical victory of
protestee De Castro.33

Protestant avers that fraud, by means of the anomalous election practices, was sufficiently proven
by using her sample-pilot precincts in two municipalities in Lanao del Sur, particularly Balindong and
Taraka. She likewise alleges that the "dagdag-bawas" scheme, which was perpetrated through the
deliberate and erroneous transposition of results from the authentic ERs to the SOV-Ps, was further
aggravated by an alleged cover-up operation to hide the same. According to protestant, the
Congress-retrieved copies of the ERs which tally with the SOV-Ps, were fake and spurious; they
were intended to cover-up the electoral fraud committed. Protestant submits that the correct voting
results are those reflected in the COMELEC and NAMFREL's copies of the ERs, not those in the
copies retrieved from Congress.
Protestant further claims that while she presented pieces of evidence, both testimonial and
documentary, in only two municipalities of Lanao del Sur, i.e., Balindong and Taraka, to prove the
electoral fraud perpetrated through the dagdag-bawas strategy, she could have shown that such
fraudulent machination was replicated in several other municipalities of Lanao del Sur and other
provinces, such as Basilan, Sulu, Tawi-Tawi, Maguindanao, Sultan Kudarat, and Lanao del Sur if she
had enough time.
Protestee, for his part, argues that the Congress-retrieved ERs are public documents as defined
under Section 19 (a),34 Rule 132 of the Rules of Court, and thus, they enjoy the presumption of
regularity accorded thereto, and they are prima facie evidence of the facts stated therein. He avers
that there is prima facie presumption that the Congress-retrieved copies of the ERs are genuine,
authentic and duly executed. Protestee submits that protestant has failed to rebut such presumption
with clear and convincing evidence.
Protestee adds that a blank or unused ER form duly authenticated by the COMELEC, with the
correct and complete set of security features and markings, should have been marked and offered
as evidence, to serve as basis for comparison with the various sets of ERs presented to prove the
genuiness of the security features and markings in the ER forms. On this score, according to
protestee, the protestant's counsel has failed in his task. At any rate, protestee points out that the
witnesses presented by protestant, i.e., COMELEC Chairman Benjamin S. Abalos and Mr. Robert
Payongayong of the Ernest Printing Corporation, testified that they were able to discern security
features and markings in the Congress-retrieved copies of the ERs. Protestee also claims that when
Mr. Payongayong testified about the security features on the Congress' copies, he was shown only a
sample set thereof, and was not able to examine all Congress' copies being contested. Protestee
thus concludes that the Tribunal cannot rely on the testimonies of the protestant's witnesses
debunking the authenticity of the Congress-retrieved copies vis--vis the other sets of ER copies.
Protestee further contends that, assuming arguendo that the results reflected in the COMELEC,
NAMFREL and MBOC's35 copies of the ERs are re-tabulated, in lieu of the results in the Congressretrieved copies, or even if all the votes in the 497 precincts included in the pilot areas, as well as in
the remaining protested precincts in theFirst Aspect, are counted in favor of protestant, said votes
would be insufficient to overcome the lead of the protestee totaling 881,722 votes. Hence, in view of
the failure of the protestant to make out her case for the First Aspect of the protest, the same and
ultimately the protest in its entirety, must be dismissed without consideration of the other provinces
mentioned.
The Hearing Commissioner further recommended, following the precedent set in Defensor-Santiago
v. Ramos,36that the protest be dismissed for being moot and academic due to abandonment and
withdrawal resulting from protestant's election and assumption of office as senator. He also
emphasized that assuming that dagdag-bawashad indeed occurred and that the results in the
COMELEC's ER copies indicated in Annex "A" were to be used for re-tabulation, protestant would be
entitled to an additional 4,912 votes for the municipality of Taraka and 5,019 votes for Balindong, or

a total of 9,931 votes, which is not adequate to surpass protestee's lead of 881,722 votes over
protestant.
On protestant's charges of electoral fraud allegedly aggravated by a cover-up operation that
switched or exchanged the Congress' ER copies with spurious ones, the Hearing Commissioner
stressed that the Congress-retrieved ERs are public documents which enjoy the presumption of
regularity and are prima facie evidence of the facts stated therein. He concluded that the protestant
failed to adequately and convincingly rebut the presumption. The Hearing Commissioner also
emphasized that protestant failed to substantiate sufficiently her claim that the Congress-retrieved
ERs are spurious and were switched with the authentic copies during an alleged break-in at the
storage area of the House of Representatives as no evidence was presented to prove such break-in.
Hence, the alleged discrepancies found in NAMFREL, MBOC and COMELEC's copies of the ERs
are insufficient to exclude the Congress-retrieved ER copies from the re-tabulation. The Hearing
Commissioner also observed that in 11 out of the 51 precincts in Balindong, Lanao del Sur, there are
similar entries in the Congress-retrieved ERs and in the COMELEC's copies of the ERs, where
protestant garnered a higher number of votes over protestee, while the entries in the respective
SOV-Ms are different in that the protestee received more votes, belying protestant's assertion that
the Congress-retrieved ERs should all be disregarded since the results therein differ from those in
the COMELEC's copies of ERs and that they have been manipulated to favor protestee.
Consequently, according to the Hearing Commissioner's report, protestant failed to make out her
case.
Thus, the Hearing Commissioner recommended that the protestant's Motion to Resolve the First
Aspect of the Protest under consideration should be denied, and consequently, the protest itself, be
dismissed for lack of legal and factual basis, as the pilot-tested revision of ballots or re-tabulation of
the certificates of canvass would not affect the winning margin of the protestee in the final canvass
of the returns, in addition to the ground of abandonment or withdrawal by reason of her candidacy
for, election and assumption of office as Senator of the Philippines.37
After thorough deliberation and consideration of the issues in this case, this Tribunal finds the
abovestated recommendations of its Hearing Commissioner well-taken, and adopts them for its own.
Further, we are also in agreement that the protestant, in assuming the office of Senator and
discharging her duties as such, which fact we can take judicial notice of, 38 has effectively abandoned
or withdrawn her protest, or abandoned her determination to protect and pursue the public interest
involved in the matter of who is the real choice of the electorate. The most relevant precedent on this
issue is Defensor-Santiago v. Ramos,39 a decision rendered by this Tribunal, which held that:
The term of office of the Senators elected in the 8 May 1995 election is six years, the first
three of which coincides with the last three years of the term of the President elected in the
11 May 1992 synchronized elections. The latter would be Protestant Santiago's term if she
would succeed in proving in the instant protest that she was the true winner in the 1992
elections. In assuming the office of Senator then, the Protestant has effectively abandoned
or withdrawn this protest, or at the very least, in the language ofMoraleja, abandoned her
"determination to protect and pursue the public interest involved in the matter of who is the
real choice of the electorate." Such abandonment or withdrawal operates to render moot the
instant protest. Moreover, the dismissal of this protest would serve public interest as it would
dissipate the aura of uncertainty as to the results of the 1992 presidential election, thereby
enhancing the all-[too] crucial political stability of the nation during this period of national
recovery.

It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an
election protest may be summarily dismissed, regardless of the public policy and public
interest implications thereof, on the following grounds:
(1) The petition is insufficient in form and substance;
(2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof;
(3) The filing fee is not paid within the periods provided for in these Rules;
(4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after
the filing of the protest; and
(5) The petition or copies thereof and the annexes thereto filed with the Tribunal are
not clearly legible.
Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply
in a suppletory character, may likewise be pleaded as affirmative defenses in the answer.
After which, the Tribunal may, in its discretion, hold a preliminary hearing on such grounds. In
sum, if an election protest may be dismissed on technical grounds, then it must be, for a
decidedly stronger reason, if it has become moot due to its abandonment by the Protestant. 40
In the case at bar, protestant's tenure in the Senate coincides with the term of the Vice-Presidency
2004-2010, that is the subject of her protest. In Defensor-Santiago v. Ramos, the protestant's tenure
in the Senate also coincided with the term of the Presidency she was vying for. Like the protestant in
the aforementioned case, the protestant in the case at bar filed her certificate of candidacy for the
Senate, campaigned for the office, assumed office after election, and discharged the duties and
functions of said office. Thus, we agree concerning the applicability of the Defensor-Santiago case
as a precedent in the resolution of the present protest, though they differ in that DefensorSantiago's case involves the Presidency while Legarda's protest concerns only the Vice-Presidency.
On the matter of the alleged spurious ER copies, we agree with the protestee that the protestant had
not adequately and convincingly rebutted the presumption that as public documents, the Congressretrieved ER copies, used for the proclamation of the protestee by the NBC, are authentic and duly
executed in the regular course of official business. The evidence adduced by protestee to show that
the supposed security features and markings in the Congress-retrieved ERs and the
COMELEC/NAMFREL's copies are different, did not categorically establish that the Congressretrieved ERs are fake and spurious. To overcome the presumption of regularity, there must be
evidence that is clear, convincing and more than merely preponderant. Absent such convincing
evidence, the presumption must be upheld.41 In fact, the records show that even the witnesses
presented by the protestant testified that they were able to discern security features and markings in
the Congress-retrieved ERs. The records also show that witnesses were not made to examine all
Congress-retrieved ERs in making observations relative to security features and markings, but only
a sample set thereof was utilized, resulting in grave insufficiency in the evidence presented by
protestant.
As to the alleged break-in in Congress, which allegedly facilitated the switching of ERs, no
conclusive evidence has been given. One of the protestant's own witnesses, Atty. Artemio Adasa,
Deputy General for Legislative Operations of the House of Representatives, categorically denied that
a break-in and a switching of ERs had occurred in Congress.42

At any rate, as pointed out by protestee, even assuming arguendo that all the votes in the 497
precincts included in the pilot areas for the First Aspect with approximately 99,400 votes are
considered in favor of protestant, still the protestant would not be able to overcome the lead of the
protestee. The margin in favor of protestee adds up to a total of 881,722 votes, and it would take
much more than a hundred thousand votes to overcome this lead. This is what the protestant had
set out to do in her protest before the Tribunal, but unfortunately she failed to make out her case. 43 In
fact, Taraka and Balindong, the only two municipalities on which protestant anchors her arguments
for the First Aspect, would only yield an additional 9,931 votes (4,912 votes for Taraka and 5,019
votes for Balindong), a mere fraction of the lead of protestee over protestant. To say that she could
have shown that such fraudulent machination was replicated in several other municipalities of Lanao
del Sur and other provinces, such as Basilan, Sulu, Tawi-Tawi, Maguindanao, Sultan Kudarat and
Lanao del Sur if she had enough time, is mere conjecture and can not be considered convincing by
this Tribunal. It is the protestant herself who admits that she was able to adduce evidence only in
Taraka and Balindong, for lack of time. But this Tribunal has been liberal in granting her plea for time
extension. To say that the protestant had shown enough evidence to prove that the whole or even
half (440,862)44 of the lead of the protestee over the protestant is spurious, would go against the
grain of the evidence on hand. One cannot say that half a million votes were illegally obtained based
on unclear evidence of cheating in less than ten thousand. The protestant has been afforded ample
opportunity to adduce evidence in her behalf for the First Aspect of the protest but the evidence
presented is simply insufficient to convince the Tribunal to render invalid all or even half of the
881,722 votes that protestee had over her in the last elections for Vice-President.
WHEREFORE, the First Aspect of the protest is hereby DISMISSED for lack of legal and factual
basis, as the pilot-tested revision of ballots or re-tabulation of the certificates of canvass would not
affect the winning margin of the protestee in the final canvass of the returns, in addition to the
ground of abandonment or withdrawal by reason of protestant's candidacy for, election to and
assumption of the office of Senator of the Philippines. The Second Aspect, having been already
DISMISSED on June 5, 2007, pursuant to Rule 33 of this Tribunal, the entire Protest is now
deemed DISMISSED and TERMINATED.
SO ORDERED.
Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, CarpioMorales, Azcuna, Tinga, Nachura, Reyes, Leonardo-de-Castro, JJ., concur.
Chico-Nazario, J., on official leave.
Velasco, Jr., J., on leave.

APPOINTMENT

EN BANC
AQUILINO Q. PIMENTEL, JR.,
EDGARDO J. ANGARA,
JUAN PONCE ENRILE,
LUISA P. EJERCITO-ESTRADA,
JINGGOY E. ESTRADA,
PANFILO M. LACSON,
ALFREDO S. LIM,
JAMBY A.S. MADRIGAL, and
SERGIO R. OSMEA III,
Petitioners,

G.R. No. 164978

Present:
Davide, Jr., C.J.,
Puno,
Panganiban,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
Austria-Martinez,
- versus Corona,
Carpio Morales,
EXEC. SECRETARY EDUARDO
Callejo, Sr.,
R. ERMITA, FLORENCIO B. ABAD, Azcuna,
AVELINO J. CRUZ, JR.,
Tinga,
MICHAEL T. DEFENSOR, Chico-Nazario, and
JOSEPH H. DURANO, Garcia, JJ.
RAUL M. GONZALEZ,
ALBERTO G. ROMULO,
RENE C. VILLA, and Promulgated:
ARTHUR C. YAP,
Respondents. October 13, 2005
x-----------------------------------------------------x

DECISION
CARPIO, J.:
The Case

This is a petition for certiorari and prohibition[1] with a prayer for the
issuance of a writ of preliminary injunction to declare unconstitutional the

appointments issued by President Gloria Macapagal-Arroyo (President Arroyo)


through Executive Secretary Eduardo R. Ermita (Secretary Ermita) to Florencio B.
Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M.
Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap (respondents) as
acting secretaries of their respective departments. The petition also seeks to
prohibit respondents from performing the duties of department secretaries.
Antecedent Facts

The Senate and the House of Representatives (Congress) commenced their


regular session on 26 July 2004. The Commission on Appointments, composed of
Senators and Representatives, was constituted on 25 August 2004.
Meanwhile, President Arroyo issued appointments[2] to respondents as acting
secretaries of their respective departments.
Appointee
Arthur C. Yap
Alberto G. Romulo
Raul M. Gonzalez
Florencio B. Abad
Avelino J. Cruz, Jr.
Rene C. Villa
Joseph H. Durano
Michael T. Defensor

Department
Agriculture
Foreign Affairs
Justice
Education
National Defense
Agrarian Reform
Tourism
Environment and Natural Resources

The appointment papers are uniformly worded as follows:


Sir:

Date of Appointment
15 August 2004
23 August 2004
23 August 2004
23 August 2004
23 August 2004
23 August 2004
23 August 2004
23 August 2004

Pursuant to the provisions of existing laws, you are hereby appointed


ACTING SECRETARY, DEPARTMENT OF (appropriate department) vice (name
of person replaced).
By virtue hereof, you may qualify and enter upon the performance of the
duties and functions of the office, furnishing this Office and the Civil Service
Commission with copies of your Oath of Office.
(signed)
Gloria Arroyo

Respondents took their oath of office and assumed duties as acting secretaries.
On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator Pimentel), Edgardo J.
Angara (Senator Angara), Juan Ponce Enrile (Senator Enrile), Luisa P. EjercitoEstrada (Senator Ejercito-Estrada), Jinggoy E. Estrada (Senator Estrada), Panfilo
M. Lacson (Senator Lacson), Alfredo S. Lim (Senator Lim), Jamby A.S. Madrigal
(Senator Madrigal), and Sergio R. Osmea, III (Senator Osmea) (petitioners) filed
the present petition as Senators of the Republic of the Philippines.

Congress adjourned on 22 September 2004. On 23 September 2004,


President Arroyo issued ad interim appointments[3] to respondents as secretaries of
the departments to which they were previously appointed in an acting capacity. The
appointment papers are uniformly worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed
SECRETARY [AD INTERIM], DEPARTMENT OF (appropriate department).

By virtue hereof, you may qualify and enter upon the performance of the
duties and functions of the office, furnishing this Office and the Civil Service
Commission with copies of your oath of office.
(signed)
Gloria Arroyo

Issue

The petition questions the constitutionality of President Arroyos


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

The petition has no merit.

Preliminary Matters
On the Mootness of the Petition

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

As a rule, the writ of prohibition will not lie to enjoin acts already done.
[4]

However, as an exception to the rule on mootness, courts will decide a question

otherwise moot if it is capable of repetition yet evading review.[5]


In the present case, the mootness of the petition does not bar its resolution. The
question of the constitutionality of the Presidents appointment of department
secretaries in an acting capacity while Congress is in session will arise in every
such appointment.
On the Nature of the Power to Appoint

The power to appoint is essentially executive in nature, and the legislature may not
interfere with the exercise of this executive power except in those instances when
the Constitution expressly allows it to interfere.[6] Limitations on the executive
power to appoint are construed strictly against the legislature. [7] The scope of the
legislatures interference in the executives power to appoint is limited to the power
to prescribe the qualifications to an appointive office. Congress cannot appoint a
person to an office in the guise of prescribing qualifications to that office. Neither
may Congress impose on the President the duty to appoint any particular person to
an office.[8]
However, even if the Commission on Appointments is composed of members of
Congress, the exercise of its powers is executive and not legislative. The
Commission on Appointments does not legislate when it exercises its power to
give or withhold consent to presidential appointments. Thus:

xxx The Commission on Appointments is a creature of the Constitution. Although


its membership is confined to members of Congress, said Commission is
independent of Congress. The powers of the Commission do not come from
Congress, but emanate directly from the Constitution. Hence, it is not an agent of
Congress. In fact, the functions of the Commissioner are purely executive in
nature. xxx[9]

On Petitioners Standing

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

on

the

other

hand,

state

that

the

Court

can

exercise

its certiorari jurisdiction over unconstitutional acts of the President. [11] Petitioners
further contend that they possess standing because President Arroyos appointment
of department secretaries in an acting capacity while Congress is in session impairs
the powers of Congress. Petitioners cite Sanlakas v. Executive Secretary[12] as
basis, thus:

To the extent that the powers of Congress are impaired, so is the power of
each member thereof, since his office confers a right to participate in the exercise
of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by a
member of Congress. In such a case, any member of Congress can have a resort to
the courts.

Considering the independence of the Commission on Appointments from


Congress, it is error for petitioners to claim standing in the present case as
members of Congress. President Arroyos issuance of acting appointments while
Congress is in session impairs no power of Congress. Among the petitioners, only
the following are members of the Commission on Appointments of the
13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as
Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada,
and Senator Osmea as members.
Thus, on the impairment of the prerogatives of members of the Commission
on Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and
Osmea have standing in the present petition. This is in contrast to Senators
Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their
perceived prerogatives as members of Congress, possess no standing in the present
petition.
The Constitutionality of President Arroyos Issuance
of Appointments to Respondents as Acting Secretaries

Petitioners contend that President Arroyo should not have appointed


respondents as acting secretaries because in case of a vacancy in the Office of a
Secretary, it is only an Undersecretary who can be designated as Acting Secretary.
[13]

Petitioners base their argument on Section 10, Chapter 2, Book IV of Executive

Order No. 292 (EO 292),[14] which enumerates the powers and duties of the
undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary
shall:
xxx
(5) Temporarily discharge the duties of the Secretary in the latters absence
or inability to discharge his duties for any cause or in case of vacancy of the said
office, unless otherwise provided by law. Where there are more than one
Undersecretary, the Secretary shall allocate the foregoing powers and duties
among them. The President shall likewise make the temporary designation of
Acting Secretary from among them; and
xxx

Petitioners further assert that while Congress is in session, there can be no


appointments, whether regular or acting, to a vacant position of an office needing
confirmation by the Commission on Appointments, without first having obtained
its consent.[15]
In sharp contrast, respondents maintain that the President can issue appointments
in an acting capacity to department secretaries without the consent of the

Commission on Appointments even while Congress is in session. Respondents


point to Section 16, Article VII of the 1987 Constitution. Section 16 reads:
SEC. 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers whose appointments
are vested in him in this Constitution. He shall also appoint all other officers of
the Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such appointments
shall be effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress.

Respondents also rely on EO 292, which devotes a chapter to the Presidents


power of appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292
read:
SEC. 16. Power of Appointment. The President shall exercise the power
to appoint such officials as provided for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. (1) The President may
temporarily designate an officer already in the government service or any
other competent person to perform the functions of an office in the executive
branch, appointment to which is vested in him by law, when: (a) the officer
regularly appointed to the office is unable to perform his duties by reason of
illness, absence or any other cause; or (b) there exists a vacancy[.]
(2) The person designated shall receive the compensation attached to the
position, unless he is already in the government service in which case he shall
receive only such additional compensation as, with his existing salary, shall not
exceed the salary authorized by law for the position filled. The compensation
hereby authorized shall be paid out of the funds appropriated for the office or
agency concerned.

(3) In no case shall a temporary designation exceed one (1)


year. (Emphasis supplied)

Petitioners and respondents maintain two diametrically opposed lines of thought.


Petitioners assert that the President cannot issue appointments in an acting capacity
to department secretaries while Congress is in session because the law does not
give the President such power. In contrast, respondents insist that the President can
issue such appointments because no law prohibits such appointments.
The essence of an appointment in an acting capacity is its temporary nature. It is a
stop-gap measure intended to fill an office for a limited time until the appointment
of a permanent occupant to the office.[16] In case of vacancy in an office occupied
by an alter ego of the President, such as the office of a department secretary, the
President must necessarily appoint an alter ego of her choice as acting secretary
before the permanent appointee of her choice could assume office.
Congress, through a law, cannot impose on the President the obligation to
appoint automatically the undersecretary as her temporary alter ego. An alter ego,
whether temporary or permanent, holds a position of great trust and confidence.
Congress, in the guise of prescribing qualifications to an office, cannot impose on
the President who her alter ego should be.
The office of a department secretary may become vacant while Congress is
in session. Since a department secretary is the alter ego of the President, the acting

appointee to the office must necessarily have the Presidents confidence. Thus, by
the very nature of the office of a department secretary, the President must appoint
in an acting capacity a person of her choice even while Congress is in session. That
person may or may not be the permanent appointee, but practical reasons may
make it expedient that the acting appointee will also be the permanent appointee.
The law expressly allows the President to make such acting appointment.
Section 17, Chapter 5, Title I, Book III of EO 292 states that [t]he President may
temporarily designate an officer already in the government service or any other
competent person to perform the functions of an office in the executive branch.
Thus, the President may even appoint in an acting capacity a person not yet in the
government service, as long as the President deems that person competent.
Petitioners assert that Section 17 does not apply to appointments vested in the
President by the Constitution, because it only applies to appointments vested in the
President by law. Petitioners forget that Congress is not the only source of law.
Law refers to the Constitution, statutes or acts of Congress, municipal ordinances,
implementing rules issued pursuant to law, and judicial decisions.[17]
Finally, petitioners claim that the issuance of appointments in an acting capacity is
susceptible to abuse. Petitioners fail to consider that acting appointments cannot
exceed one year as expressly provided in Section 17(3), Chapter 5, Title I, Book III
of EO 292. The law has incorporated this safeguard to prevent abuses, like the use

of acting appointments as a way to circumvent confirmation by the Commission on


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

However, we find no abuse in the present case. The absence of abuse is readily
apparent from President Arroyos issuance of ad interim appointments to
respondentsimmediately upon the recess of Congress, way before the lapse of one
year.
WHEREFORE,
prohibition.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:

we DISMISS the

present

petition

for certiorari and

HILARIO G. DAVIDE, JR.


Chief Justice

REYNATO S. PUNO
Associate Justice

ARTEMIO V. PANGANIBAN
Associate Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARESSANTIAGO
Associate Justice

ANGELINA SANDOVALGUTIERREZ
Associate Justice

MA. ALICIA AUSTRIAMARTINEZ


Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

ROMEO J. CALLEJO, SR.


Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

CANCIO C. GARCIA
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court.
HILARIO G. DAVIDE, JR.
Chief Justice

[1]
[2]

[3]

Under Rule 65 of the Rules of Court.


Rollo, pp. 21-28.
Rollo, pp. 45-60.

[4]

Tolentino v. Commission on Elections, G.R. No. 148334, 21 January 2004, 420 SCRA 438 citing Gil v. Benipayo,
G.R. No. 148179, 26 June 2001 (minute resolution).
[5]
Tolentino v. Commission on Elections, G.R. No. 148334, 21 January 2004, 420 SCRA 438 citing Chief Supt.
Acop v. Secretary Guingona, Jr., 433 Phil. 62 (2002); Viola v. Hon. Alunan III, 343 Phil. 184 (1997); Alunan III
v. Mirasol, 342 Phil. 467 (1997).
[6]

See JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY
768 (1996).
[7]
See Sarmiento III v. Mison, No. L-79974, 17 December 1987, 156 SCRA 549.
[8]
See Manalang v. Quitoriano, et al., 94 Phil. 903 (1954); Flores v. Drilon, G.R. No. 104732, 22 June 1993, 223
SCRA 568.
[9]
Cunanan v. Tan, Jr., G.R. No. L-19721, 10 May 1962, 5 SCRA 1. But see Justice Concepcions Concurring
Opinion in Guevara v. Inocentes, 123 Phil. 201, 211 (1966).

[10]

Rollo, p. 38.
Ibid., p. 65.
[12]
G.R. No. 159085, 3 February 2004, 421 SCRA 656 citing Philippine Constitution Association v. Enriquez, G.R.
No. 113105, 19 August 1994, 235 SCRA 506.
[13]
Rollo, p. 14.
[11]

[14]
[15]

Also known as the Administrative Code of 1987.


Rollo, p. 12.

[16]

See Marohombsar v. Alonto, Jr., G.R. No. 93711, 25 February 1991, 194 SCRA 390.
Article 8, Civil Code. See National Amnesty Commission v. Commission on Audit, G.R. No. 156982, 8
September 2004, 437 SCRA 655.
[18]
JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 772
(1996).
[17]

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,
vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND
GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET,
respondents, COMMISSION ON APPOINTMENTS, intervenor.

PADILLA, J.:
Once more the Court is called upon to delineate constitutional boundaries. In this petition for
prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the
Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison from
performing the functions of the Office of Commissioner of the Bureau of Customs and the
respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting
disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's
appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not
having been confirmed by the Commission on Appointments. The respondents, on the other hand,
maintain the constitutionality of respondent Mison's appointment without the confirmation of the
Commission on Appointments.
Because of the demands of public interest, including the need for stability in the public service, the
Court resolved to give due course to the petition and decide, setting aside the finer procedural
questions of whether prohibition is the proper remedy to test respondent Mison's right to the Office of
Commissioner of the Bureau of Customs and of whether the petitioners have a standing to bring this
suit.
By the same token, and for the same purpose, the Court allowed the Commission on Appointments
to intervene and file a petition in intervention. Comment was required of respondents on said

petition. The comment was filed, followed by intervenor's reply thereto. The parties were also heard
in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a conflict between two (2)
great departments of government, the Executive and Legislative Departments. It also occurs early in
the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in the
Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief
Justice) Jose Abad Santos stated inGold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give effect to the intent
of the framers of the organic law and of the people adopting it. The intention to which
force is to be given is that which is embodied and expressed in the constitutional
provisions themselves.
The Court will thus construe the applicable constitutional provisions, not in accordance with how the
executive or the legislative department may want them construed, but in accordance with what they
say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts, or in the heads of the
departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four
(4) groups of officers whom the President shall appoint. These four (4) groups, to which we will
hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers
and consuls, officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution; 2
Second, all other officers of the Government whose appointments are not otherwise
provided for by law; 3
Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the
President alone.
The first group of officers is clearly appointed with the consent of the Commission on Appointments.
Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the
Commission on Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present bone of contention. Should they be
appointed by the President with or without the consent (confirmation) of the Commission on
Appointments? By following the accepted rule in constitutional and statutory construction that an
express enumeration of subjects excludes others not enumerated, it would follow that only those
appointments to positions expressly stated in the first group require the consent (confirmation) of the
Commission on Appointments. But we need not rely solely on this basic rule of constitutional
construction. We can refer to historical background as well as to the records of the 1986
Constitutional Commission to determine, with more accuracy, if not precision, the intention of the
framers of the 1987 Constitution and the people adopting it, on whether the appointments by the
President, under the second, third and fourth groups, require the consent (confirmation) of the
Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad
Santos in Gold Creek is apropos:
In deciding this point, it should be borne in mind that a constitutional provision must
be presumed to have been framed and adopted in the light and understanding of
prior and existing laws and with reference to them. "Courts are bound to presume
that the people adopting a constitution are familiar with the previous and existing
laws upon the subjects to which its provisions relate, and upon which they express
their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W.,
769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that
xxx xxx xxx
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the army from the rank of colonel, of the Navy and Air Forces from the
rank of captain or commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may by law vest the appointment of
inferior officers, in the President alone, in the courts, or in the heads of departments.
(4) The President shall havethe power to make appointments during the recess of
the Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall appoint
ambassadors, other public ministers and consuls ...

Upon the other hand, the 1973 Constitution provides thatSection 10. The President shall appoint the heads of bureaus and offices, the officers
of the Armed Forces of the Philippines from the rank of Brigadier General or
Commodore, and all other officers of The government whose appointments are not
herein otherwise provided for, and those whom he may be authorized by law to
appoint. However, the Batasang Pambansa may by law vest in the Prime Minister,
members of the Cabinet, the Executive Committee, Courts, Heads of Agencies,
Commissions, and Boards the power to appoint inferior officers in their respective
offices.
Thus, in the 1935 Constitution, almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. It is now a sad part of our political history that
the power of confirmation by the Commission on Appointments, under the 1935 Constitution,
transformed that commission, many times, into a venue of "horse-trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was
molded and remolded by successive amendments, placed the absolute power of appointment in the
President with hardly any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973
Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and the
people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the
Commission on Appointments for the first group of appointments and leaving to the President,
without such confirmation, the appointment of other officers, i.e., those in the second and third
groups as well as those in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of
Section 16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional
Commission, read as follows:
Section 16. The president shall nominate and, with the consent of a Commission on
Appointment, shall appoint the heads of the executive departments and bureaus,
ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain and all other officers of the Government
whose appointments are not otherwise provided for by law, and those whom he may
be authorized by law to appoint. The Congress may by law vest the appointment of
inferior officers in the President alone, in the courts, or in the heads of
departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When
the frames discussed on the floor of the Commission the proposed text of Section 16, Article VII, a
feeling was manifestly expressed to make the power of the Commission on Appointments over
presidential appointments more limited than that held by the Commission in the 1935 Constitution.
ThusMr. Rama: ... May I ask that Commissioner Monsod be recognized
The President: We will call Commissioner Davide later.

Mr. Monsod: With the Chair's indulgence, I just want to take a few
minutes of our time to lay the basis for some of the amendments that
I would like to propose to the Committee this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the Commission on
Appointments be limited to the department heads, ambassadors, generals and so on
but not to the levels of bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2) major changes proposed
and approved by the Commission. These were (1) the exclusion of the appointments of heads of
bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the
exclusion of appointments made under the second sentence 9 of the section from the same
requirement. The records of the deliberations of the Constitutional Commission show the following:
MR. ROMULO: I ask that Commissioner Foz be recognized
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment is on page 7,
Section 16, line 26 which is to delete the words "and bureaus," and
on line 28 of the same page, to change the phrase 'colonel or naval
captain to MAJOR GENERAL OR REAR ADMIRAL. This last
amendment which is co-authored by Commissioner de Castro is to
put a period (.) after the word ADMIRAL, and on line 29 of the same
page, start a new sentence with: HE SHALL ALSO APPOINT, et
cetera.
MR. REGALADO: May we have the amendments one by one. The
first proposed amendment is to delete the words "and bureaus" on
line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners, what
would be the justification of the proponent for such a deletion?
MR. FOZ: The position of bureau director is actually quite low in the
executive department, and to require further confirmation of
presidential appointment of heads of bureaus would subject them to
political influence.
MR. REGALADO: The Commissioner's proposed amendment by
deletion also includes regional directors as distinguished from merely
staff directors, because the regional directors have quite a plenitude

of powers within the regions as distinguished from staff directors who


only stay in the office.
MR. FOZ: Yes, but the regional directors are under the supervisiopn
of the staff bureau directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner Foz?
The Commissioner proposed an amendment to delete 'and bureaus
on Section 16. Who will then appoint the bureau directors if it is not
the President?
MR. FOZ: It is still the President who will appoint them but their
appointment shall no longer be subject to confirmation by the
Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same answer
of Commissioner de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of the
Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that this
matter should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by one. We will
first vote on the deletion of the phrase 'and bureaus on line 26, such
that appointments of bureau directors no longer need confirmation by
the Commission on Appointment.
Section 16, therefore, would read: 'The President shall nominate, and with the
consent of a Commission on Appointments, shall appoint the heads of the executive
departments, ambassadors. . . .
THE PRESIDENT: Is there any objection to delete the phrase 'and
bureaus' on page 7, line 26? (Silence) The Chair hears none; the
amendments is approved.
xxx xxx xxx

MR. ROMULO: Madam President.


THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed amendment
on page 7, line 28. 1 propose to put a period (.) after 'captain' and on
line 29, delete 'and all' and substitute it with HE SHALL ALSO
APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts the
proposed amendment because it makes it clear that those other
officers mentioned therein do not have to be confirmed by the
Commission on Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment to his
amendment, so that after "captain" we insert the following words:
AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED
IN HIM IN THIS CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided for in the
Constitution whose appointments are vested in the President, as a
matter of fact like those of the different constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in Section 16
is not an exclusive list of those appointments which constitutionally
require confirmation of the Commission on Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of the words
I proposed.
FR. BERNAS: Will Commissioner Davide restate his proposed
amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER
OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN
THIS CONSTITUTION.

FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE


APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
CONSTITUTION"?
MR. DAVIDE: Yes, Madam President, that is modified by the
Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that excludes those
officers which the Constitution does not require confirmation by the
Commission on Appointments, like the members of the judiciary and
the Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the modification
made by Commissioner Bernas.
THE PRESIDENT: So we have now this proposed amendment of
Commissioners Foz and Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed
amendment of Commissioners Foz and Davide as accepted by the
Committee? (Silence) The Chair hears none; the amendment, as
amended, is approved 10 (Emphasis supplied).
It is, therefore, clear that appointments to the second and third groups of officers can
be made by the President without the consent (confirmation) of the Commission on
Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second
sentence of Sec. 16, Article VII readingHe (the President) shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law and those whom he may be
authorized by law to appoint . . . . (Emphasis supplied)
with particular reference to the word "also," implies that the President shall "in like manner" appoint
the officers mentioned in said second sentence. In other words, the President shall appoint the
officers mentioned in said second sentence in the same manner as he appoints officers mentioned in
the first sentence, that is, by nomination and with the consent (confirmation) of the Commission on
Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of
the conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in

addition; as well; besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which
meanings could, on the contrary, stress that the word "also" in said second sentence means that the
President, in addition to nominating and, with the consent of the Commission on Appointments,
appointing the officers enumerated in the first sentence, can appoint (without such consent
(confirmation) the officers mentioned in the second sentenceRather than limit the area of consideration to the possible meanings of the word "also" as used in the
context of said second sentence, the Court has chosen to derive significance from the fact that the
first sentence speaks of nomination by the President and appointment by the President with the
consent of the Commission on Appointments, whereas, the second sentence speaks only of
appointment by the President. And, this use of different language in two (2) sentences proximate to
each other underscores a difference in message conveyed and perceptions established, in line with
Judge Learned Hand's observation that "words are not pebbles in alien juxtaposition" but, more so,
because the recorded proceedings of the 1986 Constitutional Commission clearly and expressly
justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are
officers whose appointments require no confirmation of the Commission on Appointments, even if
such officers may be higher in rank, compared to some officers whose appointments have to be
confirmed by the Commission on Appointments under the first sentence of the same Sec. 16, Art.
VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no confirmation by the
Commission on Appointments, even if he is higher in rank than a colonel in the Armed Forces of the
Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive intention and
deliberate judgment of the framers of the 1987 Constitution that, except as to those officers whose
appointments require the consent of the Commission on Appointments by express mandate of the
first sentence in Sec. 16, Art. VII, appointments of other officers are left to the President without need
of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to
presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what they
were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on
or qualifications of such power should be strictly construed against them. Such limitations or
qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence of
Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions therein
enumerated require the consent of the Commission on Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor Commission on
Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which
reads:
The Congress may, by law, vest the appointment of other officers lower in rank in the
Presidentalone, in the courts, or in the heads of departments, agencies,
commissions, or boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers in the
President alone, this implies that, in the absence of such a law, lower-ranked officers have to be
appointed by the President subject to confirmation by the Commission on Appointments; and, if this

is so, as to lower-ranked officers, it follows that higher-ranked officers should be appointed by the
President, subject also to confirmation by the Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII,
abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law vest their
appointment in the President, in the courts, or in the heads of the various departments, agencies,
commissions, or boards in the government. No reason however is submitted for the use of the word
"alone" in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion, after a careful study
of the deliberations of the 1986 Constitutional Commission, that the use of the word alone" after the
word "President" in said third sentence of Sec. 16, Article VII is, more than anything else, a slip
or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the following provision
appears at the end of par. 3, section 1 0, Article VII thereof
...; but the Congress may by law vest the appointment of inferior officers, in the
President alone, in the courts, or in the heads of departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the provision which makes
practically all presidential appointments subject to confirmation by the Commission on Appointments,
thus3. The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from the
rank of captain or commander, and all other officers of the Government whose
appointments are not herein provided for, and those whom he may be authorized by
law to appoint; ...
In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to
confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an
exception to such rule, to provide that Congress may, however, by law vest the appointment of
inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987 Constitution) in the
President alone, in the courts, or in the heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its
framers was to exclude presidential appointments from confirmation by the Commission on
Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16,
Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the
word "alone" after the word "President" in providing that Congress may by law vest the appointment
of lower-ranked officers in the President alone, or in the courts, or in the heads of departments,
because the power to appoint officers whom he (the President) may be authorized by law to appoint
is already vested in the President, without need of confirmation by the Commission on
Appointments, in the second sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of
lower-ranked officers, the Congress may by law vest their appointment in the President, in the
courts, or in the heads of various departments of the government. In short, the word "alone" in the
third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the last part of

par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the light of the
second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and
positive intent of the framers of the 1987 Constitution that presidential appointments, except those
mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the
Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the position of
Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of
appointments where the consent of the Commission on Appointments is required. As a matter of
fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus" among those
officers whose appointments need the consent of the Commission on Appointments, the 1987
Constitution on the other hand, deliberately excluded the position of "heads of bureaus" from
appointments that need the consent (confirmation) of the Commission on Appointments.
Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau
of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff
and Customs Code of the Philippines, which was enacted by the Congress of the Philippines on 22
June 1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and
one assistant chief, to be known respectively as the Commissioner (hereinafter
known as the 'Commissioner') and Assistant Commissioner of Customs, who shall
each receive an annual compensation in accordance with the rates prescribed by
existing laws. The Assistant Commissioner of Customs shall be appointed by the
proper department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No.
34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now
reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall
have one chief and one assistant chief, to be known respectively as the
Commissioner (hereinafter known as Commissioner) and Deputy Commissioner of
Customs, who shall each receive an annual compensation in accordance with the
rates prescribed by existing law. The Commissioner and the Deputy Commissioner
of Customs shall be appointed by the President of the Philippines (Emphasis
supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the
1935 Constitution, under which the President may nominate and, with the consent of the
Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of
Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be
read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the
Commissioner of the Bureau of Customs is one that devolves on the President, as an appointment
he is authorizedby law to make, such appointment, however, no longer needs the confirmation of the
Commission on Appointments.

Consequently, we rule that the President of the Philippines acted within her constitutional authority
and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs,
without submitting his nomination to the Commission on Appointments for confirmation. He is thus
entitled to exercise the full authority and functions of the office and to receive all the salaries and
emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED.
Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, C.J., concurring:


The Court has deemed it necessary and proper, in consonance with its constitutional duty, to
adjudicate promptly the issue at bar and to rule that the direct appointment of respondent Salvador
Mison as Commissioner of the Bureau of Customs (without need of submitting a prior nomination to
the Commission on Appointments and securing its confirmation) is valid and in accordance with the
President's constitutional authority to so appoint officers of the Government as defined in Article VII,
section 16 of the 1987 Constitution. The paramount public interest and the exigencies of the public
service demand that any doubts over the validity of such appointments be resolved expeditiously in
the test case at bar.
It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation
of December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For
the Confirmation By the Commission on Appointments of All Nominations and Appointments Made
by the President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the
House of Representatives. " This omission has been deliberate. The Court has resolved the case at
bar on the basis of the issues joined by the parties. The contingency of approval of the bill
mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of the
direct appointment of respondent Mison and other appointees similarly situated as in G.R. No.
80071, "Alex G. Almario vs. Hon. Miriam Defensor- Santiago." The Court does not deal with
constitutional questions in the abstract and without the same being properly raised before it in a
justiciable case and after thorough discussion of the various points of view that would enable it to
render judgment after mature deliberation. As stressed at the hearing of December 8, 1987, any
discussion of the reported bill and its validity or invalidity is premature and irrelevant and outside the
scope of the issues resolved in the case at bar.
MELENCIO-HERRERA, J., concurring:

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply
wish to add my own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution provides:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution.
He shall also appoint all other officers of the Government whose appointments are
not otherwise provided for by law, and those whom he may be authorized by law to
appoint.
The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of the departments, agencies,
commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress (Emphasis and 1st three paragraphings, supplied).
The difference in language used is significant. Under the first sentence it is clear that the President
"nominates" and with the consent of the Commission on Appointments "appoints" the officials
enumerated. The second sentence, however, significantly uses only the term "appoint" all other
officers of the Government whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. Deliberately eliminated was any reference
to nomination.
Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second
sentence from confirmation by the Commission on Appointments is, to my mind, quite clear. So also
is the fact that the term "appoint" used in said sentence was not meant to include the three distinct
acts in the appointing process, namely, nomination, appointment, and commission. For if that were
the intent, the same terminologies in the first sentence could have been easily employed.
There should be no question either that the participation of the Commission on Appointments in the
appointment process has been deliberately decreased in the 1987 Constitution compared to that in
the 1935 Constitution, which required that all presidential appointments be with the consent of the
Commission on Appointments.
The interpretation given by the majority may, indeed, lead to some incongruous situations as
stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future.
The task of constitutional construction is to ascertain the intent of the framers of the Constitution and
thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No.
21064, February 18, 1970, 31 SCRA 413). And the primary source from which to ascertain
constitutional intent is the language of the Constitution itself.

SARMIENTO, J., concurring:


I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to
prior Congressional confirmation, thus:
Sec. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments during recess of the
Congress, whether voluntary or compulsory, but such appointment shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress. 1
By its plain language, the Constitution has intended that only those grouped under the first sentence
are required to undergo a consenting process. This is a significant departure from the procedure set
forth in the 1935 Charter:
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from the
rank of captain to commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may by law vest the appointment of
inferior officers, in the President alone, in the courts, or in the heads of
departments. 2
under which, as noted by the majority, "almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no
extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to
require all Presidential appointments clearance from the Commission on Appointments, they could have
simply reenacted the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of appointments that the President may
make: (1) appointments of heads of executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of colonel or naval captain, and those of
other officers whose appointments are vested in him under the Constitution, including the regular
members of the Judicial and Bar Council, 5 the Chairman and Commissioners of the Civil Service
Commission, 6 the Chairman and Commissioners of the Commission on Elections, 7 and the Chairman
and Commissioners of the Commission on Audit; 8 (2) those officers whose appointments are not
otherwise provided for by law; (3) those whom he may be authorized by law to appoint; and (4) officers
lower in rank whose appointments the Congress may vest in the President alone.

But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written
a "rather confused Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a
certain extent, to the appointing clause itself, in the sense that it leaves us for instance, with the
incongruous situation where a consul's appointment needs confirmation whereas that of Undersecretary
of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge.
That is a question addressed to the electorate, and who, despite those "eccentricities," have
stamped their approval on that Charter. "The Court," avers the majority, "will thus construe the
applicable constitutional provisions, not in accordance with how the executive or the legislative
department may want them construed, but in accordance with what they say and provide." 10
It must be noted that the appointment of public officials is essentially an exercise of executive
power. 11 The fact that the Constitution has provided for a Commission on Appointments does not minimize the extent of such a power,
much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms that "[a]ppointment
to office is intrinsically an executive act involving the exercise of discretion." 12 Springer v. Philippine Islands 13 on the other hand,
underscored the fact that while the legislature may create a public office, it cannot name the official to discharge the functions appurtenant
thereto. And while it may prescribe the qualifications therefor, it cannot circumscribe such qualifications, which would unduly narrow the
President's choice. In that event, it is as if it is the legislature itself conferring the appointment.

Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains
his supremacy as the appointing authority. In case of doubt, the same should be resolved in favor of
the appointing power.
It is the essence of a republican form of government, like ours, that "[e]ach department of the
government has exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican
systems, no power is absolutely separate from the other. For republicanism operates on a process of checks and balances as well, not only
to guard against excesses by one branch, but more importantly, "to secure coordination in the workings of the various departments of the
government." 15 Viewed in that light, the Commission on Appointments acts as a restraint against abuse of the appointing authority, but not
as a means with which to hold the Chief Executive hostage by a possibly hostile Congress, an unhappy lesson as the majority notes, in our
history under the regime of the 1935 Constitution.

The system of checks and balances is not peculiar to the provision on appointments. The prohibition,
for instance, against the enactment of a bill of attainder operates as a bar against legislative
encroachment upon both judicial and executive domains, since the determination of guilt and
punishment of the guilty address judicial and executive functions, respective y. 16
And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both
ways. In a very real sense, the power of appointment constitutes a check against legislative
authority. In Springer v. Philippine Islands, 17 we are told that "Congress may not control the law enforcement process by
retaining a power to appoint the individual who will execute the laws." 18 This is so, according to one authority, because "the appointments
clause, rather than 'merely dealing with etiquette or protocol,' seeks to preserve an executive check upon legislative authority in the interest
of avoiding an undue concentration of power in Congress. " 19

The President has sworn to "execute [the] laws. 20 For that matter, no other department of the
Government may discharge that function, least of all Congress. Accordingly, a statute conferring upon a
commission the responsibility of administering that very legislation and whose members have been
determined therein, has been held to be repugnant to the Charter. 21 Execution of the laws, it was held, is
the concern of the President, and in going about this business, he acts by himself or through his men and
women, and no other.
The President, on the other hand, cannot remove his own appointees "except for cause provided by
law." 22Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the

power of removal . . . [is] incident to the power of appointment, 23 although this has since been tempered
in a subsequent case, 24 where it was held that the President may remove only "purely executive
officers, 25 that is, officers holding office at his pleasure. InIngles v. Mutuc, 26 this Court held that the
President may remove incumbents of offices confidential in nature, but we likewise made clear that in
such a case, the incumbent is not "removed" within the meaning of civil service laws, but that his term
merely expires.

It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987
Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall act on all
appointments submitted to it within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to either consent or not consent to the
appointments preferred before it within the prescribed period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are
blurred by the predominance of checks and counterchecks, yet amid such a rubble of competing
powers emerges a structure whose parts are at times jealous of each other, but which are ultimately
necessary in assuring a dynamic, but stable, society. As Mr. Justice Holmes had so elegantly
articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and divide fields of black
and white. Even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other. ... When we come to the
fundamental distinctions it is still more obvious that they must be received with a
certain latitude or our government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative and
executive action with mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and counterpoises, which
Newton might readily have recognized as suggestive of the mechanism of the
heavens," (W. Wilson, Constitutional Government in the United States 56 (1908)] can
represent only the scaffolding of a far more subtle "vehicle of life (Id. at 192: "The
Constitution cannot be regarded as a mere legal document, to be read as a will or a
contract would be. It must, of the necessity of the case, be a vehicle of life.") The
great difficulty of any theory less rich, Woodrow Wilson once warned, "is that
government is not a machine, but a living thing. It falls, not under the theory of the

universe, but under the theory of organic life. It is accountable to Darwin, not to
Newton. It is . . . shaped to its functions by the sheer pressure of life. No living thing
can have its organs offset against each other as checks, and five." (Id. at 56.) Yet
because no complex society can have its centers of power not "offset against each
other as checks," and resist tyranny, the Model of Separated and Divided Powers
offers continuing testimony to the undying dilemmas of progress and justice. 29
xxx xxx xxx

As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately
denied the legislature (the National Assembly under the 1971 draft Constitution) the power to check
executive appointments, and hence, granted the President absolute appointing power. 30 As a
delegate to, and Vice-President of, the ill-fated 1971 Constitutional Convention, and more so as the
presiding officer of most of its plenary session, I am aware that the Convention did not provide for a
commission on appointments on the theory that the Prime Minister, the head of the Government and the
sole appointing power, was himself a member of parliament. For this reason, there was no necessity for a
separate body to scrutinize his appointees. But should such appointees forfeit the confidence of the
assembly, they are, by tradition, required to resign, unless they should otherwise have been removed by
the Prime Minister. 31 In effect, it is parliament itself that "approves" such appointments. Unfortunately,
supervening events forestalled our parliamentary experiment, and beginning with the 1976 amendments
and some 140 or so amendments thereafter, we had reverted to the presidential form, 32 without
provisions for a commission on appointments.
In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the
present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere
safeguard against abuse with respect to those appointments. It does not accord Congress any more
than the power to check, but not to deny, the Chief Executive's appointing power or to supplant his
appointees with its own. It is but an exception to the rule. In limiting the Commission's scope of
authority, compared to that under the 1935 Constitution, I believe that the 1987 Constitution has
simply recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the
land, should never have any of its provisions interpreted in a manner that results in absurd or
irrational consequences.
The Commission on Appointments is an important constitutional body which helps give fuller
expression to the principles inherent in our presidential system of government. Its functions cannot
be made innocuous or unreasonably diminished to the confirmation of a limited number of
appointees. In the same manner that the President shares in the enactment of laws which govern
the nation, the legislature, through its Commission on Appointments, gives assurance that only those
who can pass the scrutiny of both the President and Congress will help run the country as officers
holding high appointive positions. The third sentence of the first paragraph " ... The Congress
may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts,
or in the heads of departments, agencies, commissions, or boards." specifies only "officers lower
in rank" as those who may, by law, be appointed by the President alone. If as expounded in the
majority opinion, only the limited number of officers in the first sentence of Section 16 require
confirmation, the clear intent of the third sentence is lost. In fact both the second and third sentences

become meaningless or superfluous. Superfluity is not to be read into such an important part of the
Constitution.
I agree with the intervenor that all provisions of the Constitution on appointments must be read
together. In providing for the appointment of members of the Supreme Court and judges of lower
courts (Section 9, Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the Vice
President as a member of cabinet (Section 3, Article VII) and, of course, those who by law the
President alone may appoint, the Constitution clearly provides no need for confirmation. This can
only mean that all other appointments need confirmation. Where there is no need for confirmation or
where there is an alternative process to confirmation, the Constitution expressly so declares. Without
such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the
government it set up was supposed to be a parliamentary one. The Prime Minister, as head of
government, was constantly accountable to the legislature. In our presidential system, the
interpretation which Justice Cruz and myself espouse, is more democratic and more in keeping with
the system of government organized under the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is
required only for the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the
executive departments; (2) ambassadors, other public ministers and consuls; (3) officers of the
armed forces from the rank of colonel or naval captain; and (4) other officers whose appointments
are vested in the President in the Constitution. No confirmation is required under the second
sentence for (1) all other officers whose appointments are not otherwise provided for by law, and (2)
those whom the President may be authorized by law to appoint. Neither is confirmation required by
the third sentence for those other officers lower in rank whose appointment is vested by law in the
President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his
department, does not have to be confirmed by the Commission on Appointments, but the ordinary
consul, who is under his jurisdiction, must be confirmed. The colonel is by any standard lower in rank
than the Chairman of the Commission on Human Rights, which was created by the Constitution; yet
the former is subject to confirmation but the latter is not because he does not come under the first
sentence. The Special Prosecutor, whose appointment is not vested by the Constitution in the
President, is not subject to confirmation under the first sentence, and neither are the Governor of the
Central Bank and the members of the Monetary Board because they fall under the second sentence
as interpreted by the majority opinion. Yet in the case of the multi-sectoral members of the regional
consultative commission, whose appointment is vested by the Constitution in the President under
Article X, Section 18, their confirmation is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as they would lead to the absurd
consequences we should avoid in interpreting the Constitution.
There is no question that bureau directors are not required to be confirmed under the first sentence
of Section 16, but that is not the provision we ought to interpret. It is the second sentence we must

understand for a proper resolution of the issues now before us. Significantly, although there was a
long discussion of the first sentence in the Constitutional Commission, there is none cited on the
second sentence either in the Solicitor-General's comment or in the majority opinion. We can
therefore only speculate on the correct interpretation of this provision in the light of the first and third
sentences of Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the exception to the first sentence and holds
that the two sets of officers specified therein may be appointed by the President without the
concurrence of the Commission on Appointments. This interpretation is pregnant with mischievous if
not also ridiculous results that presumably were not envisioned by the framers.
One may wonder why it was felt necessary to include the second sentence at all, considering the
majority opinion that the enumeration in the first sentence of the officers subject to confirmation is
exclusive on the basis ofexpressio unius est exclusio alterius. If that be so, the first sentence would
have been sufficient by itself to convey the Idea that all other appointees of the President would not
need confirmation.
One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it
was still felt necessary to provide in the third sentence that the appointment of the other officers
lower in rank will also not need confirmation as long as their appointment is vested by law in the
President alone. The third sentence would appear to be superfluous, too, again in view of the first
sentence.
More to the point, what will follow if Congress does not see fit to vest in the President alone the
appointment of those other officers lower in rank mentioned in the third sentence? Conformably to
the language thereof, these lower officers will need the confirmation of the Commission on
Appointments while, by contrast, the higher officers mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank
than the bureau director, will have to be confirmed if the Congress does not vest their appointment in
the President alone under the third sentence. On the other hand, their superior, the bureau director
himself, will not need to be confirmed because, according to the majority opinion, he falls not under
the first sentence but the second. This is carefulness in reverse, like checking the bridesmaids but
forgetting the bride.
It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict
the powers of the Presidency and so prevent the recurrence of another dictatorship. Among the
many measures taken was the restoration of the Commission on Appointments to check the
appointing power which had been much abused by President Marcos. We are now told that even as
this body was revived to limit appointments, the scope of its original authority has itself been limited
in the new Constitution. I have to disagree.
My own reading is that the second sentence is but a continuation of the Idea expressed in the first
sentence and simply mentions the other officers appointed by the President who are also subject to
confirmation. The second sentence is the later expression of the will of the framers and so must be
interpreted as complementing the rule embodied in the first sentence or, if necessary, reversing the
original intention to exempt bureau directors from confirmation. I repeat that there were no debates
on this matter as far as I know, which simply means that my humble conjecture on the meaning of
Section 16 is as arguable, at least, as the suppositions of the majority. We read and rely on the same

records. At any rate, this view is more consistent with the general purpose of Article VII, which, to
repeat, was to reduce the powers of the Presidency.
The respondent cites the following exchange reported in page 520, Volume II, of the Record of the
Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed amendment on
page 7, line 28, 1 propose to put a period (.) after 'captain' and on line
29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT
ANY.
Mr. Regalado: Madam President, the Committee accepts the
proposed amendment because it makes it clear that those other
officers mentioned therein do not have to be confirmed by the
Commission on Appointments.
However, the records do not show what particular part of Section 16 the committee chairman was
referring to, and a reading in its entirety of this particular debate will suggest that the body was
considering the first sentence of the said section, which I reiterate is not the controversial provision.
In any case, although the excerpt shows that the proposed amendment of Commissioner Foz was
accepted by the committee, it is not reflected, curiously enough, in the final version of Section 16 as
a perusal thereof will readily reveal. Whether it was deleted later in the session or reworded by the
style committee or otherwise replaced for whatever reason will need another surmise on this rather
confused Constitution.
I need only add that the records of the Constitutional Commission are merely extrinsic aids and are
at best persuasive only and not necessarily conclusive. Interestingly, some quarters have observed
that the Congress is not prevented from adding to the list of officers subject to confirmation by the
Commission on Appointments and cite the debates on this matter in support of this supposition. It is
true enough that there was such a consensus, but it is equally true that this thinking is not at all
expressed, or even only implied, in the language of Section 16 of Article VII. Which should prevail
then the provision as worded or the debates?
It is not disputed that the power of appointment is executive in nature, but there is no question either
that it is not absolute or unlimited. The rule re- established by the new Constitution is that the power
requires confirmation by the Commission on Appointments as a restraint on presidential excesses, in
line with the system of checks and balances. I submit it is the exception to this rule, and not the rule,
that should be strictly construed.
In my view, the only officers appointed by the President who are not subject to confirmation by the
Commission on Appointments are (1) the members of the judiciary and the Ombudsman and his
deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President when he is
appointed to the Cabinet; and (3) "other officers lower in rank," but only when their appointment is
vested by law in the President alone. It is clear that this enumeration does not include the
respondent Commissioner of Customs who, while not covered by the first sentence of Section 16,
comes under the second sentence thereof as I would interpret it and so is also subject to
confirmation.
I vote to grant the petition.

Separate Opinions
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in consonance with its constitutional duty, to
adjudicate promptly the issue at bar and to rule that the direct appointment of respondent Salvador
Mison as Commissioner of the Bureau of Customs (without need of submitting a prior nomination to
the Commission on Appointments and securing its confirmation) is valid and in accordance with the
President's constitutional authority to so appoint officers of the Government as defined in Article VII,
section 16 of the 1987 Constitution. The paramount public interest and the exigencies of the public
service demand that any doubts over the validity of such appointments be resolved expeditiously in
the test case at bar.
It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation
of December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For
the Confirmation By the Commission on Appointments of All Nominations and Appointments Made
by the President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the
House of Representatives. " This omission has been deliberate. The Court has resolved the case at
bar on the basis of the issues joined by the parties. The contingency of approval of the bill
mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of the
direct appointment of respondent Mison and other appointees similarly situated as in G.R. No.
80071, "Alex G. Almario vs. Hon. Miriam Defensor- Santiago." The Court does not deal with
constitutional questions in the abstract and without the same being properly raised before it in a
justiciable case and after thorough discussion of the various points of view that would enable it to
render judgment after mature deliberation. As stressed at the hearing of December 8, 1987, any
discussion of the reported bill and its validity or invalidity is premature and irrelevant and outside the
scope of the issues resolved in the case at bar.
MELENCIO-HERRERA, J., concurring:
I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply
wish to add my own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution provides:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution.
He shall also appoint all other officers of the Government whose appointments are
not otherwise provided for by law, and those whom he may be authorized by law to
appoint.

The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of the departments, agencies,
commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress (Emphasis and 1st three paragraphings, supplied).
The difference in language used is significant. Under the first sentence it is clear that the President
"nominates" and with the consent of the Commission on Appointments "appoints" the officials
enumerated. The second sentence, however, significantly uses only the term "appoint" all other
officers of the Government whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. Deliberately eliminated was any reference
to nomination.
Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second
sentence from confirmation by the Commission on Appointments is, to my mind, quite clear. So also
is the fact that the term "appoint" used in said sentence was not meant to include the three distinct
acts in the appointing process, namely, nomination, appointment, and commission. For if that were
the intent, the same terminologies in the first sentence could have been easily employed.
There should be no question either that the participation of the Commission on Appointments in the
appointment process has been deliberately decreased in the 1987 Constitution compared to that in
the 1935 Constitution, which required that all presidential appointments be with the consent of the
Commission on Appointments.
The interpretation given by the majority may, indeed, lead to some incongruous situations as
stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future.
The task of constitutional construction is to ascertain the intent of the framers of the Constitution and
thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No.
21064, February 18, 1970, 31 SCRA 413). And the primary source from which to ascertain
constitutional intent is the language of the Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to
prior Congressional confirmation, thus:
Sec. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.

The President shall have the power to make appointments during recess of the
Congress, whether voluntary or compulsory, but such appointment shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress. 1
By its plain language, the Constitution has intended that only those grouped under the first sentence
are required to undergo a consenting process. This is a significant departure from the procedure set
forth in the 1935 Charter:
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from the
rank of captain to commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may by law vest the appointment of
inferior officers, in the President alone, in the courts, or in the heads of
departments. 2
under which, as noted by the majority, "almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no
extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to
require all Presidential appointments clearance from the Commission on Appointments, they could have
simply reenacted the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of appointments that the President may
make: (1) appointments of heads of executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of colonel or naval captain, and those of
other officers whose appointments are vested in him under the Constitution, including the regular
members of the Judicial and Bar Council, 5 the Chairman and Commissioners of the Civil Service
Commission, 6 the Chairman and Commissioners of the Commission on Elections, 7 and the Chairman
and Commissioners of the Commission on Audit; 8 (2) those officers whose appointments are not
otherwise provided for by law; (3) those whom he may be authorized by law to appoint; and (4) officers
lower in rank whose appointments the Congress may vest in the President alone.
But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written
a "rather confused Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a
certain extent, to the appointing clause itself, in the sense that it leaves us for instance, with the
incongruous situation where a consul's appointment needs confirmation whereas that of Undersecretary
of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge.
That is a question addressed to the electorate, and who, despite those "eccentricities," have
stamped their approval on that Charter. "The Court," avers the majority, "will thus construe the
applicable constitutional provisions, not in accordance with how the executive or the legislative
department may want them construed, but in accordance with what they say and provide." 10
It must be noted that the appointment of public officials is essentially an exercise of executive
power. 11 The fact that the Constitution has provided for a Commission on Appointments does not minimize the extent of such a power,
much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms that "[a]ppointment
to office is intrinsically an executive act involving the exercise of discretion." 12 Springer v. Philippine Islands 13 on the other hand,

underscored the fact that while the legislature may create a public office, it cannot name the official to discharge the functions appurtenant
thereto. And while it may prescribe the qualifications therefor, it cannot circumscribe such qualifications, which would unduly narrow the
President's choice. In that event, it is as if it is the legislature itself conferring the appointment.

Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains
his supremacy as the appointing authority. In case of doubt, the same should be resolved in favor of
the appointing power.
It is the essence of a republican form of government, like ours, that "[e]ach department of the
government has exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican
systems, no power is absolutely separate from the other. For republicanism operates on a process of checks and balances as well, not only
to guard against excesses by one branch, but more importantly, "to secure coordination in the workings of the various departments of the
government." 15 Viewed in that light, the Commission on Appointments acts as a restraint against abuse of the appointing authority, but not
as a means with which to hold the Chief Executive hostage by a possibly hostile Congress, an unhappy lesson as the majority notes, in our
history under the regime of the 1935 Constitution.

The system of checks and balances is not peculiar to the provision on appointments. The prohibition,
for instance, against the enactment of a bill of attainder operates as a bar against legislative
encroachment upon both judicial and executive domains, since the determination of guilt and
punishment of the guilty address judicial and executive functions, respective y. 16
And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both
ways. In a very real sense, the power of appointment constitutes a check against legislative
authority. In Springer v. Philippine Islands, 17 we are told that "Congress may not control the law enforcement process by
retaining a power to appoint the individual who will execute the laws." 18 This is so, according to one authority, because "the appointments
clause, rather than 'merely dealing with etiquette or protocol,' seeks to preserve an executive check upon legislative authority in the interest
of avoiding an undue concentration of power in Congress. " 19

The President has sworn to "execute [the] laws. 20 For that matter, no other department of the
Government may discharge that function, least of all Congress. Accordingly, a statute conferring upon a
commission the responsibility of administering that very legislation and whose members have been
determined therein, has been held to be repugnant to the Charter. 21 Execution of the laws, it was held, is
the concern of the President, and in going about this business, he acts by himself or through his men and
women, and no other.
The President, on the other hand, cannot remove his own appointees "except for cause provided by
law." 22Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the
power of removal . . . [is] incident to the power of appointment, 23 although this has since been tempered
in a subsequent case, 24 where it was held that the President may remove only "purely executive
officers, 25 that is, officers holding office at his pleasure. InIngles v. Mutuc, 26 this Court held that the
President may remove incumbents of offices confidential in nature, but we likewise made clear that in
such a case, the incumbent is not "removed" within the meaning of civil service laws, but that his term
merely expires.
It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987
Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall act on all
appointments submitted to it within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to either consent or not consent to the
appointments preferred before it within the prescribed period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are
blurred by the predominance of checks and counterchecks, yet amid such a rubble of competing

powers emerges a structure whose parts are at times jealous of each other, but which are ultimately
necessary in assuring a dynamic, but stable, society. As Mr. Justice Holmes had so elegantly
articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and divide fields of black
and white. Even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other. ... When we come to the
fundamental distinctions it is still more obvious that they must be received with a
certain latitude or our government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative and
executive action with mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and counterpoises, which
Newton might readily have recognized as suggestive of the mechanism of the
heavens," (W. Wilson, Constitutional Government in the United States 56 (1908)] can
represent only the scaffolding of a far more subtle "vehicle of life (Id. at 192: "The
Constitution cannot be regarded as a mere legal document, to be read as a will or a
contract would be. It must, of the necessity of the case, be a vehicle of life.") The
great difficulty of any theory less rich, Woodrow Wilson once warned, "is that
government is not a machine, but a living thing. It falls, not under the theory of the
universe, but under the theory of organic life. It is accountable to Darwin, not to
Newton. It is . . . shaped to its functions by the sheer pressure of life. No living thing
can have its organs offset against each other as checks, and five." (Id. at 56.) Yet
because no complex society can have its centers of power not "offset against each
other as checks," and resist tyranny, the Model of Separated and Divided Powers
offers continuing testimony to the undying dilemmas of progress and justice. 29
xxx xxx xxx

As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately
denied the legislature (the National Assembly under the 1971 draft Constitution) the power to check
executive appointments, and hence, granted the President absolute appointing power. 30 As a
delegate to, and Vice-President of, the ill-fated 1971 Constitutional Convention, and more so as the
presiding officer of most of its plenary session, I am aware that the Convention did not provide for a
commission on appointments on the theory that the Prime Minister, the head of the Government and the

sole appointing power, was himself a member of parliament. For this reason, there was no necessity for a
separate body to scrutinize his appointees. But should such appointees forfeit the confidence of the
assembly, they are, by tradition, required to resign, unless they should otherwise have been removed by
the Prime Minister. 31 In effect, it is parliament itself that "approves" such appointments. Unfortunately,
supervening events forestalled our parliamentary experiment, and beginning with the 1976 amendments
and some 140 or so amendments thereafter, we had reverted to the presidential form, 32 without
provisions for a commission on appointments.

In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the
present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere
safeguard against abuse with respect to those appointments. It does not accord Congress any more
than the power to check, but not to deny, the Chief Executive's appointing power or to supplant his
appointees with its own. It is but an exception to the rule. In limiting the Commission's scope of
authority, compared to that under the 1935 Constitution, I believe that the 1987 Constitution has
simply recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the
land, should never have any of its provisions interpreted in a manner that results in absurd or
irrational consequences.
The Commission on Appointments is an important constitutional body which helps give fuller
expression to the principles inherent in our presidential system of government. Its functions cannot
be made innocuous or unreasonably diminished to the confirmation of a limited number of
appointees. In the same manner that the President shares in the enactment of laws which govern
the nation, the legislature, through its Commission on Appointments, gives assurance that only those
who can pass the scrutiny of both the President and Congress will help run the country as officers
holding high appointive positions. The third sentence of the first paragraph " ... The Congress
may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts,
or in the heads of departments, agencies, commissions, or boards." specifies only "officers lower
in rank" as those who may, by law, be appointed by the President alone. If as expounded in the
majority opinion, only the limited number of officers in the first sentence of Section 16 require
confirmation, the clear intent of the third sentence is lost. In fact both the second and third sentences
become meaningless or superfluous. Superfluity is not to be read into such an important part of the
Constitution.
I agree with the intervenor that all provisions of the Constitution on appointments must be read
together. In providing for the appointment of members of the Supreme Court and judges of lower
courts (Section 9, Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the Vice
President as a member of cabinet (Section 3, Article VII) and, of course, those who by law the
President alone may appoint, the Constitution clearly provides no need for confirmation. This can
only mean that all other appointments need confirmation. Where there is no need for confirmation or
where there is an alternative process to confirmation, the Constitution expressly so declares. Without
such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the
government it set up was supposed to be a parliamentary one. The Prime Minister, as head of
government, was constantly accountable to the legislature. In our presidential system, the

interpretation which Justice Cruz and myself espouse, is more democratic and more in keeping with
the system of government organized under the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is
required only for the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the
executive departments; (2) ambassadors, other public ministers and consuls; (3) officers of the
armed forces from the rank of colonel or naval captain; and (4) other officers whose appointments
are vested in the President in the Constitution. No confirmation is required under the second
sentence for (1) all other officers whose appointments are not otherwise provided for by law, and (2)
those whom the President may be authorized by law to appoint. Neither is confirmation required by
the third sentence for those other officers lower in rank whose appointment is vested by law in the
President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his
department, does not have to be confirmed by the Commission on Appointments, but the ordinary
consul, who is under his jurisdiction, must be confirmed. The colonel is by any standard lower in rank
than the Chairman of the Commission on Human Rights, which was created by the Constitution; yet
the former is subject to confirmation but the latter is not because he does not come under the first
sentence. The Special Prosecutor, whose appointment is not vested by the Constitution in the
President, is not subject to confirmation under the first sentence, and neither are the Governor of the
Central Bank and the members of the Monetary Board because they fall under the second sentence
as interpreted by the majority opinion. Yet in the case of the multi-sectoral members of the regional
consultative commission, whose appointment is vested by the Constitution in the President under
Article X, Section 18, their confirmation is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as they would lead to the absurd
consequences we should avoid in interpreting the Constitution.
There is no question that bureau directors are not required to be confirmed under the first sentence
of Section 16, but that is not the provision we ought to interpret. It is the second sentence we must
understand for a proper resolution of the issues now before us. Significantly, although there was a
long discussion of the first sentence in the Constitutional Commission, there is none cited on the
second sentence either in the Solicitor-General's comment or in the majority opinion. We can
therefore only speculate on the correct interpretation of this provision in the light of the first and third
sentences of Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the exception to the first sentence and holds
that the two sets of officers specified therein may be appointed by the President without the
concurrence of the Commission on Appointments. This interpretation is pregnant with mischievous if
not also ridiculous results that presumably were not envisioned by the framers.
One may wonder why it was felt necessary to include the second sentence at all, considering the
majority opinion that the enumeration in the first sentence of the officers subject to confirmation is
exclusive on the basis ofexpressio unius est exclusio alterius. If that be so, the first sentence would

have been sufficient by itself to convey the Idea that all other appointees of the President would not
need confirmation.
One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it
was still felt necessary to provide in the third sentence that the appointment of the other officers
lower in rank will also not need confirmation as long as their appointment is vested by law in the
President alone. The third sentence would appear to be superfluous, too, again in view of the first
sentence.
More to the point, what will follow if Congress does not see fit to vest in the President alone the
appointment of those other officers lower in rank mentioned in the third sentence? Conformably to
the language thereof, these lower officers will need the confirmation of the Commission on
Appointments while, by contrast, the higher officers mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank
than the bureau director, will have to be confirmed if the Congress does not vest their appointment in
the President alone under the third sentence. On the other hand, their superior, the bureau director
himself, will not need to be confirmed because, according to the majority opinion, he falls not under
the first sentence but the second. This is carefulness in reverse, like checking the bridesmaids but
forgetting the bride.
It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict
the powers of the Presidency and so prevent the recurrence of another dictatorship. Among the
many measures taken was the restoration of the Commission on Appointments to check the
appointing power which had been much abused by President Marcos. We are now told that even as
this body was revived to limit appointments, the scope of its original authority has itself been limited
in the new Constitution. I have to disagree.
My own reading is that the second sentence is but a continuation of the Idea expressed in the first
sentence and simply mentions the other officers appointed by the President who are also subject to
confirmation. The second sentence is the later expression of the will of the framers and so must be
interpreted as complementing the rule embodied in the first sentence or, if necessary, reversing the
original intention to exempt bureau directors from confirmation. I repeat that there were no debates
on this matter as far as I know, which simply means that my humble conjecture on the meaning of
Section 16 is as arguable, at least, as the suppositions of the majority. We read and rely on the same
records. At any rate, this view is more consistent with the general purpose of Article VII, which, to
repeat, was to reduce the powers of the Presidency.
The respondent cites the following exchange reported in page 520, Volume II, of the Record of the
Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed amendment on
page 7, line 28, 1 propose to put a period (.) after 'captain' and on line
29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT
ANY.
Mr. Regalado: Madam President, the Committee accepts the
proposed amendment because it makes it clear that those other

officers mentioned therein do not have to be confirmed by the


Commission on Appointments.
However, the records do not show what particular part of Section 16 the committee chairman was
referring to, and a reading in its entirety of this particular debate will suggest that the body was
considering the first sentence of the said section, which I reiterate is not the controversial provision.
In any case, although the excerpt shows that the proposed amendment of Commissioner Foz was
accepted by the committee, it is not reflected, curiously enough, in the final version of Section 16 as
a perusal thereof will readily reveal. Whether it was deleted later in the session or reworded by the
style committee or otherwise replaced for whatever reason will need another surmise on this rather
confused Constitution.
I need only add that the records of the Constitutional Commission are merely extrinsic aids and are
at best persuasive only and not necessarily conclusive. Interestingly, some quarters have observed
that the Congress is not prevented from adding to the list of officers subject to confirmation by the
Commission on Appointments and cite the debates on this matter in support of this supposition. It is
true enough that there was such a consensus, but it is equally true that this thinking is not at all
expressed, or even only implied, in the language of Section 16 of Article VII. Which should prevail
then the provision as worded or the debates?
It is not disputed that the power of appointment is executive in nature, but there is no question either
that it is not absolute or unlimited. The rule re- established by the new Constitution is that the power
requires confirmation by the Commission on Appointments as a restraint on presidential excesses, in
line with the system of checks and balances. I submit it is the exception to this rule, and not the rule,
that should be strictly construed.
In my view, the only officers appointed by the President who are not subject to confirmation by the
Commission on Appointments are (1) the members of the judiciary and the Ombudsman and his
deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President when he is
appointed to the Cabinet; and (3) "other officers lower in rank," but only when their appointment is
vested by law in the President alone. It is clear that this enumeration does not include the
respondent Commissioner of Customs who, while not covered by the first sentence of Section 16,
comes under the second sentence thereof as I would interpret it and so is also subject to
confirmation.
I vote to grant the petition.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON

JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R.
MALLILLIN, respondents.
Mary Concepcion Bautista for and in her own behalf.
Christine A.Tomas Espinosa for private respondent Hesiquio R. Mallillin

PADILLA, J.:
The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the question of
which appointments by the President, under the 1987 Constitution, are to be made with and without the
review of the Commission on Appointments. The Mison case was the first major case under the 1987
Constitution and in construing Sec. 16, Art. VII of the 1987 Constitution which provides:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts, or in the heads of the
departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and the
country's experience under the 1935 and 1973 Constitutions, held that only those appointments
expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by the Commission
on Appointments, namely, "the heads of the executive department, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in him in this Constitution." All other appointments by
the President are to be made without the participation of the Commission on Appointments.
Accordingly, in the Mison case, the appointment of therein respondent Salvador M. Mison as head of
the Bureau of Customs, without the confirmation of the Commission on Appointments, was held valid
and in accordance with the Constitution.
The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec. 16,
Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as construed by
this Court in appropriate cases, is the supreme law of the land. And it cannot be over-stressed that
the strength of the Constitution, with all its imperfections, lies in the respect and obedience accorded
to it by the people, especially the officials of government, who are the subjects of its commands.

Barely a year after Mison, the Court is again confronted with a similar question, this time, whether or
not the appointment by the President of the Chairman of the Commission on Human Rights (CHR),
an "independent office" created by the 1987 Constitution, is to be made with or without the
confirmation of the Commission on Appointments (CA, for brevity). Once more, as in Mison, the
Court will resolve the issue irrespective of the parties involved in the litigation, mindful that what
really matters are the principles that will guide this Administration and others in the years to come.
Since the position of Chairman of the Commission on Human Rights is not among the positions
mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which
are to be made with the confirmation of the Commission on Appointments, it follows that the
appointment by the President of the Chairman of the (CHR), is to be made without the review or
participation of the Commission on Appointments.
To be more precise, the appointment of the Chairman and Members of the Commission on Human
Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of
the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose
appointments are expressly vested by the Constitution in the President with the consent of the
Commission on Appointments. 2
The President appoints the Chairman and Members of the Commission on Human Rights pursuant
to the second sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on
Appointments because they are among the officers of government "whom he (the President) may be
authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes
the President to appoint the Chairman and Members of the Commission on Human Rights. It
provides:
(c) The Chairman and the Members of the Commission on Human Rights shall be
appointed by the President for a term of seven years without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the predecessor.
The above conclusions appear to be plainly evident and, therefore, irresistible. However, the
presence in this case of certain elements absent in the Mison case makes necessary a closer
scrutiny. The facts are therefore essential.
On 27 August 1987, the President of the Philippines designated herein petitioner Mary Concepcion
Bautista as"Acting Chairman, Commission on Human Rights." The letter of designation reads:
27 August 1987
M a d a m:
You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN
RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes.
Very
truly
yours,

CORAZ
ON C.
AQUIN
O
HON. MARY CONCEPCION BAUTISTA 3
Realizing perhaps the need for a permanent chairman and members of the Commission on Human
Rights, befitting an independent office, as mandated by the Constitution, 4 the President of the
Philippines on 17 December 1988 extended to petitioner Bautista a permanent appointment as Chairman
of the Commission. The appointment letter is as follows:
17
Decem
ber
1988
The Honorable
The Chairman
Commission on Human Rights
Pasig, Metro Manila
M a d a m:
Pursuant to the provisions of existing laws, the following are hereby appointed to the
positions indicated opposite their respective names in the Commission on Human
Rights:
MARY CONCEPCION BAUTISTA Chairman
ABELARDO L. APORTADERA, JR Member
SAMUEL SORIANO Member
HESIQUIO R. MALLILLIN Member
NARCISO C. MONTEIRO Member
By virtue hereof, they may qualify and enter upon the performance of the duties of
the office furnishing this Office and the Civil Service Commission with copies of their
oath of office.
Very
truly
yours,
CORA
ZON C.
AQUIN
O5
It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the President
that she could qualify and enter upon the performance of the duties of the office of Chairman of the

Commission on Human Rights, requiring her to furnish the office of the President and the Civil
Service Commission with copies of her oath of office.
On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner
Bautista took her oath of office by virtue of her appointment as Chairman of the Commission on
Human Rights. The full text of the oath of office is as follows:
OATH OF OFFICE
I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal,
Makati, Metro Manila having been appointed to the position of CHAIRMAN of the
Commission on Human Rights, do solemnly swear that I will discharge to the best of
my ability all the duties and responsibilities of the office to which I have been
appointed; uphold the Constitution of the Republic of the Philippines, and obey all the
laws of the land without mental reservation or purpose of evasion.
SO HELP ME GOD.
MARY
CONC
EPCIO
N
BAUTI
STA
SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of
Our Lord, 1988 in Manila.
M
A
R
C
E
L
O
B
.
F
E
R
N
A
N
Chief
Justice

Supre
me
Court
of the
Philippi
nes 6
Immediately, after taking her oath of office as Chairman of the Commission on Human Rights,
petitioner Bautista discharged the functions and duties of the Office of Chairman of the Commission
on Human Rights which, as previously stated, she had originally held merely in an acting capacity
beginning 27 August 1987.
On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission on
Appointments requesting her to submit to the Commission certain information and documents as
required by its rules in connection with the confirmation of her appointment as Chairman of the
Commission on Human Rights. 7 On 10 January 1989, the Commission on Appointments' Secretary
again wrote petitioner Bautista requesting her presence at a meeting of the Commission on Appointments
Committee on Justice, Judicial and Bar Council and Human Rights set for 19 January 1989 at 9 A.M. at
the Conference Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that would deliberate on
her appointment as Chairman of the Commission on Human Rights. 8
On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on Appointments
stating, for the reasons therein given, why she considered the Commission on Appointments as
having no jurisdiction to review her appointment as Chairman of the Commission on Human Rights.
The petitioner's letter to the Commission on Appointments' Chairman reads:
January
13, 1
989
SENATE PRESIDENT JOVITO R. SALONGA
Chairman
Commission on Appointments
Senate, Manila
S i r:
We acknowledge receipt of the communication from the Commission on
Appointments requesting our appearance on January 19, 1989 for deliberation on
our appointments.
We respectfully submit that the appointments of the Commission commissioners of
the Human Rights Commission are not subject to confirmation by the Commission on
Appointments.
The Constitution, in Article VII Section 16 which expressly vested on the President
the appointing power, has expressly mentioned the government officials whose
appointments are subject to the confirmation of the Commission on Appointments of

Congress. The Commissioners of the Commission on Human Rights are not included
among those.
Where the confirmation of the Commission on Appointments is required, as in the
case of the Constitutional Commissions such as the Commission on Audit, Civil
Service Commission and the Commission on Elections, it was expressly provided
that the nominations will be subject to confirmation of Commission on Appointments.
The exclusion again of the Commission on Human Rights, a constitutional office,
from this enumeration is a clear denial of authority to the Commission on
Appointments to review our appointments to the Commission on Human Rights.
Furthermore, the Constitution specifically provides that this Commission is
an independent office which:
a. must investigate all forms of human rights violations involving civil
and political rights;
b. shall monitor the government's compliance in all our treaty
obligations on human rights. We submit that, the monitoring of all
agencies of government, includes even Congress itself, in the
performance of its functions which may affect human rights;
c. may call on all agencies of government for the implementation of
its mandate.
The powers of the Commission on Appointments is in fact a derogation of the Chief
Executive's appointing power and therefore the grant of that authority to review a
valid exercise of the executive power can never be presumed. It must be expressly
granted.
The Commission on Appointments has no jurisdiction under the Constitution to
review appointments by the President of Commissioners of the Commission on
Human Rights.
In view of the foregoing considerations, as Chairman of an independent constitutional
office. I cannot submit myself to the Commission on Appointments for the purpose of
confirming or rejecting my appointment.
Very
truly
yours,
MARY
CONCE
PCION
BAUTIS
TA
Chairm
an 9

In respondent Commission's comment (in this case), dated 3 February 1989, there is attached as
Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon.
Catalino Macaraig, Jr. making reference to the "ad interim appointment which Her Excellency
extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission
on Human Rights" 10 and informing Secretary Macaraig that, as previously conveyed to him in a letter of
25 January 1989, the Commission on Appointments disapproved petitioner Bautista's "ad
interim appointment' as Chairperson of the Commission on Human Rights in view of her refusal to submit
to the jurisdiction of the Commission on Appointments. The letter reads:

1 February 1989
HON. CATALINO MACARAIG, JR.
Executive Secretary
Malacanang, Manila
S i r:
This refers to the ad interim appointment which Her Excellency extended to Atty.
Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission
on Human Rights.
As we conveyed to you in our letter of 25 January 1989, the Commission on
Appointments, assembled in plenary (session) on the same day, disapproved Atty.
Bautista's ad interim appointment as Chairperson of the Commission on Human
Rights in view of her refusal to submit to the jurisdiction of the Commission on
Appointments.
This is to inform you that the Commission on Appointments, likewise assembled in
plenary (session) earlier today, denied Senator Mamintal A. J. Tamano's motion for
reconsideration of the disapproval of Atty. Bautista's ad interim appointment as
Chairperson of the Commission on Human Rights.
Very
truly
yours,
RAOUL V.
VICTORINO
Secretary 11
On the same date (1 February 1989), the Commission on Appointments' Secretary informed
petitioner Bautista that the motion for reconsideration of the disapproval of her "ad
interim appointment as Chairman of the Commission on Human Rights" was denied by the
Commission on Appointments. The letter reads as follows:
1
Februar
y 1989

ATTY. MARY CONCEPCION BAUTISTA


Commission on Human Rights
Integrated Bar of the Philippines
Bldg. Pasig, Metro Manila
Dear Atty. Bautista:
Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments,
the denial by the Commission on Appointments, assembled in plenary (session)
earlier today, of Senator Mamintal A.J. Tamano's motion for reconsideration of the
disapproval of your ad interim appointment as Chairperson of the Commission on
Human Rights is respectfully conveyed.
Thank you for your attention.
Very
truly
yours,

RAOUL V. VICT
Secretary 12
In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item
appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the President had
designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of the Commission"
pending the resolution of Bautista's case which had been elevated to the Supreme Court. The news
item is here quoted in full, thus
Aquino names replacement for MaryCon
President Aquino has named replacement for Presidential Commission on Human
Rights Chairman Mary Concepcion Bautista whose appointment was rejected anew
by the Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R. Mallillin as acting
chairman of the Commission pending the resolution of Bautista's case which had
been elevated to the Supreme Court.
The President's action followed after Congressional Commission on Appointments
Chairman, Senate President Jovito Salonga declared Bautista can no longer hold on
to her position after her appointment was not confirmed for the second time.
For all practical purposes, Salonga said Bautista can be accused of usurpation of
authority if she insists to stay on her office.
In effect, the President had asked Bautista to vacate her office and give way to
Mallillin (Mari Villa) 13

On 20 January 1989, or even before the respondent Commission on Appointments had acted on her
"ad interimappointment as Chairman of the Commission on Human Rights" petitioner Bautista filed
with this Court the present petition for certiorari with a prayer for the immediate issuance of a
restraining order, to declare "as unlawful and unconstitutional and without any legal force and effect
any action of the Commission on Appointments as well as of the Committee on Justice, Judicial and
Bar Council and Human Rights, on the lawfully extended appointment of the petitioner as Chairman
of the Commission on Human Rights, on the ground that they have no lawful and constitutional
authority to confirm and to review her appointment." 14
The prayer for temporary restraining order was "to enjoin the respondent Commission on
Appointments not to proceed further with their deliberation and/or proceedings on the appointment of
the petitioner ... nor to enforce, implement or act on any order, resolution, etc. issued in the course of
their deliberations." 15
Respondents were required to file comment within ten (10) days. 16 On 7 February 1989, petitioner
filed an amended petition, with urgent motion for restraining order, impleading Commissioner Hesiquio R.
Mallillin the designated acting chairman as party respondent and praying for the nullification of his
appointment. The succeeding day, a supplemental urgent ex-parte motion was filed by petitioner seeking
to restrain respondent Mallillin from continuing to exercise the functions of chairman and to refrain from
demanding courtesy resignations from officers or separating or dismissing employees of the Commission.
Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court resolved
to issue a temporary restraining order directing respondent Mallillin to cease and desist from
effecting the dismissal, courtesy resignation, i removal and reorganization and other similar
personnel actions. 17 Respondents were likewise required to comment on said amended petition with
allowance for petitioner to file a reply within two (2) days from receipt of a copy thereof.
Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC and
Human Rights filed a comment to the amended petition on 21 February 1989. 18 Petitioner filed her
reply. 19 On 24 February 1989, respondent Mallillin filed a separate comment. 20 The Court required
petitioner to reply to respondent Mallillin's comment . 21Petitioner filed her reply. 22
In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-equal
branch of government, the Court did not issue a temporary restraining order directed against it.
However, this does not mean that the issues raised by the petition, as met by the respondents'
comments, will not be resolved in this case. The Court will not shirk from its duty as the final arbiter
of constitutional issues, in the same way that it did not in Mison.
As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was
extended by Her Excellency, the President a permanent appointment as Chairman of the
Commission on Human Rights on 17 December 1988. Before this date, she was merely the "Acting
Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an appointment that
was for the President solely to make, i.e., not an appointment to be submitted for review and
confirmation (or rejection) by the Commission on Appointments. This is in accordance with Sec. 16,
Art. VII of the 1987 Constitution and the doctrine in Mison which is here reiterated.
The threshold question that has really come to the fore is whether the President, subsequent to her
act of 17 December 1988, and after petitioner Bautista had qualified for the office to which she had
been appointed, by taking the oath of office and actually assuming and discharging the functions and

duties thereof, could extend another appointment to the petitioner on 14 January 1989, an "ad
interim appointment" as termed by the respondent Commission on Appointments or any other kind of
appointment to the same office of Chairman of the Commission on Human Rights that called for
confirmation by the Commission on Appointments.
The Court, with all due respect to both the Executive and Legislative Departments of government,
and after careful deliberation, is constrained to hold and rule in the negative. When Her Excellency,
the President converted petitioner Bautista's designation as Acting Chairman to a permanent
appointment as Chairman of the Commission on Human Rights on 17 December 1988, significantly
she advised Bautista (in the same appointment letter) that, by virtue of such appointment, she could
qualify and enter upon the performance of the duties of the office (of Chairman of the Commission
on Human Rights). All that remained for Bautista to do was to reject or accept the appointment.
Obviously, she accepted the appointment by taking her oath of office before the Chief Justice of the
Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the functions and
duties of the Chairman of the Commission on Human Rights. Bautista's appointment therefore on 17
December 1988 as Chairman of the Commission on Human Rights was a completed act on the part
of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of
Marbury vs. Madison. 23
xxx xxx xxx
The answer to this question seems an obvious one. The appointment being the sole
act of the President, must be completely evidenced, when it is shown that he has
done everything to be performed by him.
xxx xxx xxx
Some point of time must be taken when the power of the executive over an officer,
not removable at his will must cease. That point of time must be when the
constitutional power of appointment has been exercised. And this power has been
exercised when the last act, required from the person possessing the power, has
been performed. ....
xxx xxx xxx
But having once made the appointment, his (the President's) power over the office is
terminated in all cases, where by law the officer is not removable by him. The right to
the office is then in the person appointed, and he has the absolute, unconditional
power of accepting or rejecting it.
xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989
It is respondent Commission's submission that the President, after the appointment of 17 December
1988 extended to petitioner Bautista, decided to extend another appointment (14 January 1989) to
petitioner Bautista, this time, submitting such appointment (more accurately, nomination) to the
Commission on Appointments for confirmation. And yet, it seems obvious enough, both in logic and
in fact, that no new or further appointment could be made to a position already filled by a previously

completed appointment which had been accepted by the appointee, through a valid qualification and
assumption of its duties.
Respondent Commission vigorously contends that, granting that petitioner's appointment as
Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the
Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within the
president's prerogative to voluntarily submit such appointment to the Commission on Appointment
for confirmation. The mischief in this contention, as the Court perceives it, lies in the suggestion that
the President (with Congress agreeing) may, from time to time move power boundaries, in the
Constitution differently from where they are placed by the Constitution.
The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin with,
is concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the
Executive nor the Legislative (Commission on Appointments) can create power where the
Constitution confers none. The evident constitutional intent is to strike a careful and delicate
balance, in the matter of appointments to public office, between the President and Congress (the
latter acting through the Commission on Appointments). To tilt one side or the other of the scale is to
disrupt or alter such balance of power. In other words, to the extent that the Constitution has blocked
off certain appointments for the President to make with the participation of the Commission on
Appointments, so also has the Constitution mandated that the President can confer no power of
participation in the Commission on Appointments over other appointments exclusively reserved for
her by the Constitution. The exercise of political options that finds no support in the Constitution
cannot be sustained.
Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited
power to review presidential appointments, create power to confirm appointments that the
Constitution has reserved to the President alone. Stated differently, when the appointment is one
that the Constitution mandates is for the President to make without the participation of the
Commission on Appointments, the executive's voluntary act of submitting such appointment to the
Commission on Appointments and the latter's act of confirming or rejecting the same, are done
without or in excess of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON
APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS TO
HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON
14 JANUARY 1989
Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily allow the
Commission on Appointments to exercise the power of review over an appointment otherwise solely
vested by the Constitution in the President. Yet, as already noted, when the President appointed
petitioner Bautista on 17 December 1988 to the position of Chairman of the Commission on Human
Rights with the advice to her that by virtue of such appointment (not, until confirmed by the
Commission on Appointments), she could qualify and enter upon the performance of her duties after
taking her oath of office, the presidential act of appointment to the subject position which, under the
Constitution, is to be made, in the first place, without the participation of the Commission on
Appointments, was then and there a complete and finished act, which, upon the acceptance by
Bautista, as shown by her taking of the oath of office and actual assumption of the duties of said
office, installed her, indubitably and unequivocally, as the lawful Chairman of the Commission on
Human Rights for a term of seven (7) years. There was thus no vacancy in the subject office on 14

January 1989 to which an appointment could be validly made. In fact, there is no vacancy in said
office to this day.
Nor can respondents impressively contend that the new appointment or re-appointment on 14
January 1989 was anad interim appointment, because, under the Constitutional design, ad
interim appointments do not apply to appointments solely for the President to make, i.e., without the
participation of the Commission on Appointments. Ad interim appointments, by their very nature
under the 1987 Constitution, extend only to appointments where the review of the Commission on
Appointments is needed. That is why ad interim appointments are to remain valid until disapproval
by the Commission on Appointments or until the next adjournment of Congress; but appointments
that are for the President solely to make, that is, without the participation of the Commission on
Appointments, can not be ad interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE
CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE
PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without confirmation by the Commission on Appointments,
petitioner Bautista, as Chairman of the Commission on Human Rights, can be removed from said
office at anytime, at the pleasure of the President; and that with the disapproval of Bautista's
appointment (nomination) by the Commission on Appointments, there was greater reason for her
removal by the President and her replacement with respondent Mallillin Thus, according to
respondent Mallillin the petition at bar has become moot and academic.
We do not agree that the petition has become moot and academic. To insist on such a posture is
akin to deluding oneself that day is night just because the drapes are drawn and the lights are on.
For, aside from the substantive questions of constitutional law raised by petitioner, the records
clearly show that petitioner came to this Court in timely manner and has not shown any indication of
abandoning her petition.
Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of
which is as follows:
WHEREAS, the Constitution does not prescribe the term of office of the Chairman
and Members of the Commission on Human Rights unlike those of other
Constitutional Commissions;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do
hereby order:
SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby
amended to read as follows:
The Chairman and Members of the Commission on Human Rights shall be appointed
by the President. Their tenure in office shall be at the pleasure of the President.
SEC. 2. This Executive Order shall take effect immediately. DONE in the City of
Manila, this 30th day of June, in the year of Our Lord, nineteen hundred and eightyseven.

(Sgd.)
CORAZ
ON C.
AQUIN
O
Preside
nt of the
Philippi
nes
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary 24
Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163
the President, Sec. 2(c) of which provides:

25

was issued by

Sec. 2(c). The Chairman and the Members of the Commission on Human Rights
shall be appointed by the President for a term of seven years without reappointment.
Appointments to any vacancy shall be only for the unexpired term of the
predecessor.
It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the
Chairman and Members of the Commission on Human Rights which is seven (7) years without
reappointment the later executive order (163-A) speaks of the tenure in office of the Chairman
and Members of the Commission on Human Rights, which is "at the pleasure of the President."
Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice)
Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated:
The distinction between "term" and "tenure" is important, for, pursuant to the
Constitution, "no officer or employee in the Civil Service may be removed or
suspended except for cause, as provided by law" (Art. XII, section 4), and this
fundamental principle would be defeated if Congress could legally make the tenure of
some officials dependent upon the pleasure of the President, by clothing the latter
with blanket authority to replace a public officer before the expiration of his term. 27
When Executive Order No. 163 was issued, the evident purpose was to comply with the
constitutional provision that "the term of office and other qualifications and disabilities of the
Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII, 1987
Constitution).
As the term of office of the Chairman (and Members) of the Commission on Human Rights, is seven
(7) years, without reappointment, as provided by Executive Order No. 163, and consistent with the
constitutional design to give the Commission the needed independence to perform and accomplish
its functions and duties, the tenure in office of said Chairman (and Members) cannot be later made
dependent on the pleasure of the President.

Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because the
power of the President, sustained therein, to replace a previously appointed vice-mayor of Roxas
City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas) stating that
the vice-mayor shall serve at the pleasure of the President, can find no application to the Chairman
of an INDEPENDENT OFFICE, created not by statute but by the Constitution itself. Besides, unlike
in the Alba case, here the Constitution has decreed that the Chairman and Members of the
Commission on Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by
the Constitution to be independent as the Commission on Human Rights-and vested with the
delicate and vital functions of investigating violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be declared
unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its
constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point to its
being plainly at war with the constitutional intent of independence for the Commission. Thus
MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this
body to be constitutionalized is the fact that regardless of who is the President or
who holds the executive power, the human rights issue is of such importance that it
should be safeguarded and it should be independent of political parties or powers
that are actually holding the reins of government. Our experience during the martial
law period made us realize how precious those rights are and, therefore, these must
be safeguarded at all times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the
power of the Commission on Human Rights to be coterminous with the president,
because the President's power is such that if he appoints a certain commissioner
and that commissioner is subject to the President, therefore, any human rights
violations committed under the person's administration will be subject to presidential
pressure. That is what we would like to avoid to make the protection of human
rights go beyond the fortunes of different political parties or administrations in
power. 28
xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable
Chief Justice Concepcion and retired Justice J.B.L. Reyes and they believe that
there should be an independent Commission on Human Rights free from executive
influence because many of the irregularities on human rights violations are
committed by members of the armed forces and members of the executive branch of
the government. So as to insulate this body from political interference, there is a
need to constitutionalize it. 29

xxx xxx xxx


MR. SARMIENTO: On the inquiry on whether there is a need for this to be
constitutionalized, I would refer to a previous inquiry that there is still a need for
making this a constitutional body free or insulated from interference. I conferred with
former Chief Justice Concepcion and the acting chairman of the Presidential
Committee on Human Rights, retired Justice J.B.L. Reyes, and they are one in
saying that this body should be constitutionalized so that it will be free from executive
control or interferences, since many of the abuses are committed by the members of
the military or the armed forces. 30
xxx xxx xxx
MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we
leave it to Congress, this commission will be within the reach of politicians and of
public officers and that to me is dangerous. We should insulate this body from
political control and political interference because of the nature of its functions to
investigate all forms of human rights violations which are principally committed by
members of the military, by the Armed Forces of the Philippines. 31
xxx xxx xxx

MR. GARCIA. The critical factor here is political control, and normally, when a body is
appointed by Presidents who may change, the commission must remain above these
changes in political control. Secondly, the other important factor to consider are the
armed forces, the police forces which have tremendous power at their command
and, therefore, we would need a commission composed of men who also are beyond
the reach of these forces and the changes in political administration. 32
xxx xxx xxx
MR MONSOD. Yes, It is the committee's position that this proposed special body, in
order to function effectively, must be invested with an independence that is
necessary not only for its credibility but also for the effectiveness of its work.
However, we want to make a distinction in this Constitution. May be what happened
was that it was referred to the wrong committee. In the opinion of the committee, this
need not be a commission that is similar to the three constitutional commissions like
the COA, the COMELEC, and the Civil Service. It need not be in that article. 33
xxx xxx xxx
MR. COLAYCO. The Commissioners earlier objection was that the Office of the
President is not involved in the project. How sure are we that the next President of
the Philippines will be somebody we can trust? Remember, even now there is a
growing concern about some of the bodies, agencies and commission created by
President Aquino. 34
xxx xxx xxx

.... Leaving to Congress the creation of the Commission on Human Rights is giving
less importance to a truly fundamental need to set up a body that will effectively
enforce the rules designed to uphold human rights. 35
PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE
To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of Chairman
of the Commission on Human Rights by virtue of her appointment, as such, by the President on 17
December 1988, and her acceptance thereof, is not to say that she cannot be removed from office
before the expiration of her seven (7) year term. She certainly can be removed but her removal must
be for cause and with her right to due process properly safeguarded. In the case of NASECO vs.
NLRC, 36 this Court held that before a rank-and-file employee of the NASECO, a government-owned
corporation, could be dismissed, she was entitled to a hearing and due process. How much more, in the
case of the Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the Commission on
Human Rights.
If there are charges against Bautista for misfeasance or malfeasance in office, charges may be filed
against her with the Ombudsman. If he finds a prima facie case against her, the corresponding
information or informations can be filed with the Sandiganbayan which may in turn order her
suspension from office while the case or cases against her are pending before said court. 37 This is
due process in action. This is the way of a government of laws and not of men.
A FINAL WORD
It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had
elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for the
Commission on Human Rights (pending decision in this case) instead of appointing another
permanent Chairman. The latter course would have added only more legal difficulties to an already
difficult situation.
WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the duly
appointed Chairman of the Commission on Human Rights and the lawful incumbent thereof, entitled
to all the benefits, privileges and emoluments of said office. The temporary restraining order
heretofore issued by the Court against respondent Mallillin enjoining him from dismissing or
terminating personnel of the Commission on Human Rights is made permanent.
SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes and Regalado, JJ., concur.
Fernan, C.J., took no part, having administered petitioner's oath of office.
Sarmiento, J., took no part, respondent Mallillin is my godson.

Separate Opinions

GUTIERREZ, JR., J.: Dissenting Opinion


With all due respect for the contrary view of the majority in the Court, I maintain that it is asking too
much to expect a constitutional ruling which results in absurd or irrational consequences to ever
become settled.
The President and Congress, the appointees concerned, and the general public may in time accept
the Sarmiento III v. Mison ruling because this Court has the final word on what constitutional
provisions are supposed to mean but the incongruity will remain sticking out like a sore thumb.
Serious students of the Constitution will continue to be disturbed until the meaning of the consent
power of the Commission on Appointments is straightened out either through a re-examination of
this Court's decision or an amendment to the Constitution.
Section 16, Article VII of the Constitution consists of only three sentences. The officers specified in
the first sentence clearly require confirmation by the Commission on Appointments. The officers
mentioned in the third sentence just as clearly do not require confirmation. The problem area lies
with those in the second sentence.
I submit that we should re-examine the three groups of presidential appointees under the three
sentences of Section 16.
The first group are the heads of executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from colonel or naval captain, and other officers whose
appointments are vested in the President by the Constitution. The first sentence of Section 16 state
they must be confirmed by the Commission on Appointments.
The third group are officers lower in rank whose appointments Congress has by law vested in the
President alone. They need no confirmation.
The second group of presidential appointees are "all other officers of the Government whose
appointments are not otherwise provided for by law and those whom he may be authorized by law to
appoint." To which group do they belong?-Group I requiring confirmation or Group 3 where
confirmation is not needed?
No matter how often and how long I read the second sentence of Section 16, I simply cannot
associate the officers mentioned therein as forming part of those referred to in the third sentence.
Why am I constrained to hold this view?
(1) If the officers in the first group are the only appointees who need confirmation, there would be no
need for the second and third sentences of Section 16. They become superfluous. Any one not
falling under an express listing would need no confirmation. I think the Court is wrong in treating two
carefully crafted and significant provisions of the fundamental law as superfluities. Except for the

most compelling reasons, which do not exist here, no constitutional provision should be considered a
useless surplusage.
(2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority view
results in the absurd consequence where one of several hundred colonels and naval captains must
be confirmed but such important officers as the Governor of the Central Bank with broad powers
over the nation's economy and future stability or the Chairman of the Commission on Human Rights
whose office calls for no less than a constitutional mandate do not have to be scrutinized by the
Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the thorough
scrutiny during the confirmation process while the Undersecretary of Foreign Affairs who sends him
there and who exercises control over his acts can be appointed by the President alone? Why should
we interpret Section 16 in such a strange and irrational manner when no strained construction is
needed to give it a logical and more traditional and understandable meaning.?
(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we see the
word "also" in a sentence, we associate it with preceding sentences, never with the different
sentence that follows. On the other hand, the third sentence specifies "other officers lower in rank'
who are appointed pursuant to law by the President "alone." This can only mean that the higher
ranking officers in the second sentence must also be appointed with the concurrence of the
Commission on Appointments. When the Constitution requires Congress to specify who may be
appointed by the President alone, we should not add other and higher ranking officers as also
appointed by heralone. The strained interpretation by the Court's majority makes the word "alone"
meaningless if the officers to whom "alone" is not appended are also included in the third group.
(4) The third sentence of Section 16 requires a positive act of Congress which vests an appointment
in the President alone before such an appointment is freed from the scrutiny of the Commission on
Appointments. By express constitutional mandate, it is Congress which determines who do not need
confirmation. Under the majority ruling of the Court, if Congress creates an important office and
requires the consent of the Commission before a presidential appointment to that office is perfected,
such a requirement would be unconstitutional. I believe that the Constitution was never intended to
so restrict the lawmaking power. The Court has no jurisdiction to limit the plenary lawmaking power
of the people's elected representatives through an implied and, I must again add, a strained reading
of the plain text of Section 16. Any restriction of legislative power must be categorical, express, and
specific-never implied or forced.
(5) The Constitution specifies clearly the presidential appointees who do not need confirmation by
the Commission. The reason for non-confirmation is obvious. The members of the Supreme Court
and all lower courts and the Ombudsman and his deputies are not confirmed because the Judicial
and Bar Council screens nominees before their names are forwarded to the President. The VicePresident as a cabinet member needs no confirmation because the Constitution says so. He or she
is chosen by the nation's entire electorate and is only a breath away from the Presidency. Those
falling under the third sentence of Section 16, Article VII do not have to be confirmed because the
Constitution gives Congress the authority to free lower ranking officials whose positions are created
by law from that requirement. I believe that we in the Court have no power to add by implication to
the list of presidential appointees whom the Constitution in clear and categorical words declares as
not needing confirmation.

(6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is an


important constitutional body which helps give fuller expression to the democratic principles inherent
in our presidential form of government.
There are those who would render innocuous the Commission's power or perhaps even move for its
abolition as a protest against what they believe is too much horsetrading or sectarian politics in the
exercise of its functions. Since the President is a genuinely liked and popular leader, personally
untouched by scandal, who appears to be motivated only by the sincerest of intentions, these people
would want the Commission to routinely rubberstamp those whom she appoints to high office.
Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another
interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely, Section 16
was intended to check abuse or ill-considered appointments by a President who belongs to the latter
class.
It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly
represents the people. We should not expect Congress to act only as the selfless Idealists, the wellmeaning technocrats, the philosophers, and the coffee-shop pundits would have it move. The
masses of our people are poor and underprivileged, without the resources or the time to get publicly
involved in the intricate workings of Government, and often ill-informed or functionally illiterate.
These masses together with the propertied gentry and the elite class can express their divergent
views only through their Senators and Congressmen. Even the buffoons and retardates deserve to
have their interests considered and aired by the people's representatives. In the democracy we have
and which we try to improve upon, the Commission on Appointments cannot be expected to function
like a mindless machine without any debates or even imperfections. The discussions and
wranglings, the delays and posturing are part of the democratic process. They should never be used
as arguments to restrict legislative power where the Constitution does not expressly provide for such
a limitation.
The Commission on Human Rights is a very important office. Our country is beset by widespread
insurgency, marked inequity in the ownership and enjoyment of wealth and political power, and
dangerous conflicts arising from Ideological, ethnic and religious differences. The tendency to use
force and violent means against those who hold opposite views appears irresistible to the holders of
both governmental and rebel firepower.
The President is doubly careful in the choice of the Chairman and Members of the Commission on
Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the appointments to be
a joint responsibility of the Presidency and Congress, through the Commission on Appointments.
She wants a more thorough screening process for these sensitive positions. She wants only the best
to survive the process.
Why should we tell both the President and Congress that they are wrong.?
Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel
concentrations should receive greater scrutiny in his appointment than the Chairman of the Human
Rights Commission who has infinitely more power and opportunity to bring the rebellion to a just and
satisfactory end.

But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the Chairman of
the Human Rights Commission as one of the "other officers whose appointments are vested in him
in this Constitution" under the first sentence of Section 16, Article VII. Certainly, the chairman cannot
be appointed by Congress or the Supreme Court. Neither should we read Article XIII of the
Constitution as classifying the chairman among the lower ranking officers who by law may be
appointed by the head of an executive department, agency, commission, or board. The Constitution
created the independent office. The President was intended to appoint its chairman.
I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in the call
for a re-examination of its doctrine.
CRUZ, J., dissenting:
This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adopted by
the Court more than a year ago over two dissents. The President of the Philippines has taken a
second look at it, and so too has the Commission on Appointments representing both Houses of the
Congress of the Philippines. It appears that they are not exactly certain now that the decision in that
case was correct after all. I believe it will not be amiss for us too, in a spirit of humility, to read the
Constitution again on the possibility that we may have misread it before.
The ponencia assumes that we were right the first time and that the Mison case is settled there is
no need to re-examine it. It therefore approaches the problem at hand from another perspective and
would sustain the petitioner on an additional ground.
The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not
confirmed, conformably to Mison, and could not be replaced with the second appointment on 14
January 1989 because there was no vacancy to fill. By this reasoning, the opinion would definitely
avoid the question squarely presented to the Court, viz., whether or not the Chairman of the
Commission on Human Rights is subject to confirmation as required now by both the President of
the Philippines and the Commission on Appointments. In effect, we are asked to reconsider the
Mison ruling in the light of this supervening significant albeit decidedly not controlling circumstance.
The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think we must
address the legal question frontally instead of falling back on a legal sleight-of hand of now-you-seeit-now-you-don't.
As one who never agreed with the bison ruling in the first place, I suspect that the seeming
diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over its
correctness. I think this is the reason another justification had to be offered to bolster Mison.
In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human Rights
as among the important officers who would not have to be confirmed if the majority view were to be
followed. By contrast, and inexplicably, the colonel in the armed forces would need confirmation
although he is not a constitutional officer with the serious responsibilities of the former. Also not to be
confirmed are the Governor of the Central Bank unlike the relatively minor multisectoral
representative of the regional consultative commission, and the Undersecretary of Foreign Affairs
although the consul, who is his subordinate, would need confirmation. When I pointed to these
incongruous situations, I was told it was not our place to question the wisdom of the Constitution.

What I was questioning was not the wisdom of the Constitution but the wisdom of our interpretation
which I said would lead to absurd consequences. But only Justice Gutierrez agreed with me.
Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our own
ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a
circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.
As I see it, the submission of the petitioner's appointment to the Commission on Appointments is a
clear indication that the President of the Philippines no longer agrees with the Mison, ruling, at least
insofar as it applies to the present case. Signifi cantly the Commission on Appointments, which was
also aware of Mison, has as clearly rejected it by acting on the appointment. These meaningful
developments must give us pause. We may have committed an error in Mison, which is bad enough,
and may be persisting in it now, which is worse.
Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent with my
view in Mison, I submit that what President Aquino extended to the petitioner on 17 December 1988
was an ad interim appointment that although immediately effective upon acceptance was still subject
to confirmation. I cannot agree that when the President said the petitioner could and enter into the
performance of her duties, "all that remained for Bautista to do was to reject or accept the
appointment." In fact, on the very day it was extended, the ad interim appointment was submitted by
the President of the Philippines to the Commission on Appointments "for confirmation."
The ponencia says that the appointment did not need any confirmation, being the sole act of the
President under the Mison ruling. That would have settled the question quite conclusively, but the
opinion goes on to argue another justification that I for one find unnecessary, not to say untenable. I
sense here a palpable effort to bolster Mison because of the apprehension that it is falling apart.
Of course, there was no vacancy when the nomination was made on 14 January 1989. There is no
question that the petitioner was still validly holding the office by virtue of her ad interim appointment
thereto on 17 December 1988. The nomination made later was unnecessary because the ad
interim appointment was still effective. When the Commission on Appointments sent the petitioner
the letters dated 9 January 1989 and 10 January 1989 requiring her to submit certain data and
inviting her to appear before it, it was acting not on the nomination but on the ad
interim appointment. What was disapproved was the ad interim appointment, not the nomination.
The nomination of 14 January 1989 is not in issue in this case. It is entirely immaterial. At best, it is
important only as an affirmation of the President's acknowledgment that the Chairman of the
Commission on Human Rights must be confirmed under Article VII, Section 16 of the Constitution.
It does not follow, of course, that simply because the President of the Philippines has changed her
mind, and with the expressed support of the Commission on Appointments, we should docilely
submit and reverse Mison. That is not how democracy works. The Court is independent. I do
suggest, however, that the majority could have erred in that case and that the least we can do now is
to take a more careful look at the decision. Let us check our bearings to make sure we have not
gone astray. That is all I ask
I repeat my view that the Chairman of the Commission on Human Rights is subject to confirmation
by the Commission on Appointments, for the reasons stated in my dissent in Mison Accordingly, I
vote to DENY the petition.

GRIO-AQUINO, J.: dissenting:


I believe that the appointments of the chairman and the members of the Commission on Human
Rights by the President require review and confirmation by the Commission on Appointments in view
of the following provision of Section 16, Article VII of the 1987 Constitution:
SEC. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution....
In my view, the "other officers" whose appointments are vested in the President in the Constitution
are theconstitutional officers, meaning those who hold offices created under the Constitution, and
whose appointments are not otherwise provided for in the Charter. Those constitutional officers are
the chairmen and members of the Constitutional Commissions, namely: the Civil Service
Commission (Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IXD), and the Commission on Human Rights (Sec. 17, XIII). These constitutional commissions are,
without excaption, declared to be "independent," but while in the case of the Civil Service
Commission, the Commission on Elections and the Commission on Audit, the 1987 Constitution
expressly provides that "the Chairman and the Commissioners shall be appointed by the President
with the consent of the Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX - C and
Sec. 1[2], Art. IX-D), no such clause is found in Section 17, Article VIII creating the Commission on
Human Rights. Its absence, however, does not detract from, or diminish, the President's power to
appoint the Chairman and Commissioners of the said Commission. The source of that power is the
first sentence of Section 16, Article VII of the Constitution for:
(1) the Commission on Human Rights is an office created by the Constitution, and
(2) the appointment of the Chairman and Commissioners thereof is vested in the President by the
Constitution.
Therefore, the said appointments shall be made by the President with the consent of the
Commission on Appointments, as provided in Section 16, Article VII of the Constitution.
It is not quite correct to argue, as the petitioner does, that the power of the Commission on
Appointments to review and confirm appointments made by the President is a "derogation of the
Chief Executive's appointing power." That power is given to the Commission on Appointments as
part of the system of checks and balances in the democratic form of government provided for in our
Constitution. As stated by a respected constitutional authority, former U.P. Law Dean and President
Vicente G. Sinco:
The function of confirming appointments is part of the power of appointment itself. It
is, therefore, executive rather than legislative in nature. In giving this power to an
organ of the legislative department, the Constitution merely provides a detail in the
scheme of checks and balances between the executive and legislative organs of the
government. (Phil. Political Law by Sinco, 11th ed., p. 266).
WHEREFORE, I vote to dismiss the petition.

Medialdea, J., dissenting:

Separate Opinions
GUTIERREZ, JR., J.: Dissenting Opinion
With all due respect for the contrary view of the majority in the Court, I maintain that it is asking too
much to expect a constitutional ruling which results in absurd or irrational consequences to ever
become settled.
The President and Congress, the appointees concerned, and the general public may in time accept
the Sarmiento III v. Mison ruling because this Court has the final word on what constitutional
provisions are supposed to mean but the incongruity will remain sticking out like a sore thumb.
Serious students of the Constitution will continue to be disturbed until the meaning of the consent
power of the Commission on Appointments is straightened out either through a re-examination of
this Court's decision or an amendment to the Constitution.
Section 16, Article VII of the Constitution consists of only three sentences. The officers specified in
the first sentence clearly require confirmation by the Commission on Appointments. The officers
mentioned in the third sentence just as clearly do not require confirmation. The problem area lies
with those in the second sentence.
I submit that we should re-examine the three groups of presidential appointees under the three
sentences of Section 16.
The first group are the heads of executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from colonel or naval captain, and other officers whose
appointments are vested in the President by the Constitution. The first sentence of Section 16 state
they must be confirmed by the Commission on Appointments.
The third group are officers lower in rank whose appointments Congress has by law vested in the
President alone. They need no confirmation.
The second group of presidential appointees are "all other officers of the Government whose
appointments are not otherwise provided for by law and those whom he may be authorized by law to
appoint." To which group do they belong?-Group I requiring confirmation or Group 3 where
confirmation is not needed?
No matter how often and how long I read the second sentence of Section 16, I simply cannot
associate the officers mentioned therein as forming part of those referred to in the third sentence.
Why am I constrained to hold this view?

(1) If the officers in the first group are the only appointees who need confirmation, there would be no
need for the second and third sentences of Section 16. They become superfluous. Any one not
falling under an express listing would need no confirmation. I think the Court is wrong in treating two
carefully crafted and significant provisions of the fundamental law as superfluities. Except for the
most compelling reasons, which do not exist here, no constitutional provision should be considered a
useless surplusage.
(2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority view
results in the absurd consequence where one of several hundred colonels and naval captains must
be confirmed but such important officers as the Governor of the Central Bank with broad powers
over the nation's economy and future stability or the Chairman of the Commission on Human Rights
whose office calls for no less than a constitutional mandate do not have to be scrutinized by the
Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the thorough
scrutiny during the confirmation process while the Undersecretary of Foreign Affairs who sends him
there and who exercises control over his acts can be appointed by the President alone? Why should
we interpret Section 16 in such a strange and irrational manner when no strained construction is
needed to give it a logical and more traditional and understandable meaning.?
(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we see the
word "also" in a sentence, we associate it with preceding sentences, never with the different
sentence that follows. On the other hand, the third sentence specifies "other officers lower in rank'
who are appointed pursuant to law by the President "alone." This can only mean that the higher
ranking officers in the second sentence must also be appointed with the concurrence of the
Commission on Appointments. When the Constitution requires Congress to specify who may be
appointed by the President alone, we should not add other and higher ranking officers as also
appointed by heralone. The strained interpretation by the Court's majority makes the word "alone"
meaningless if the officers to whom "alone" is not appended are also included in the third group.
(4) The third sentence of Section 16 requires a positive act of Congress which vests an appointment
in the President alone before such an appointment is freed from the scrutiny of the Commission on
Appointments. By express constitutional mandate, it is Congress which determines who do not need
confirmation. Under the majority ruling of the Court, if Congress creates an important office and
requires the consent of the Commission before a presidential appointment to that office is perfected,
such a requirement would be unconstitutional. I believe that the Constitution was never intended to
so restrict the lawmaking power. The Court has no jurisdiction to limit the plenary lawmaking power
of the people's elected representatives through an implied and, I must again add, a strained reading
of the plain text of Section 16. Any restriction of legislative power must be categorical, express, and
specific-never implied or forced.
(5) The Constitution specifies clearly the presidential appointees who do not need confirmation by
the Commission. The reason for non-confirmation is obvious. The members of the Supreme Court
and all lower courts and the Ombudsman and his deputies are not confirmed because the Judicial
and Bar Council screens nominees before their names are forwarded to the President. The VicePresident as a cabinet member needs no confirmation because the Constitution says so. He or she
is chosen by the nation's entire electorate and is only a breath away from the Presidency. Those
falling under the third sentence of Section 16, Article VII do not have to be confirmed because the
Constitution gives Congress the authority to free lower ranking officials whose positions are created
by law from that requirement. I believe that we in the Court have no power to add by implication to

the list of presidential appointees whom the Constitution in clear and categorical words declares as
not needing confirmation.
(6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is an
important constitutional body which helps give fuller expression to the democratic principles inherent
in our presidential form of government.
There are those who would render innocuous the Commission's power or perhaps even move for its
abolition as a protest against what they believe is too much horsetrading or sectarian politics in the
exercise of its functions. Since the President is a genuinely liked and popular leader, personally
untouched by scandal, who appears to be motivated only by the sincerest of intentions, these people
would want the Commission to routinely rubberstamp those whom she appoints to high office.
Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another
interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely, Section 16
was intended to check abuse or ill-considered appointments by a President who belongs to the latter
class.
It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly
represents the people. We should not expect Congress to act only as the selfless Idealists, the wellmeaning technocrats, the philosophers, and the coffee-shop pundits would have it move. The
masses of our people are poor and underprivileged, without the resources or the time to get publicly
involved in the intricate workings of Government, and often ill-informed or functionally illiterate.
These masses together with the propertied gentry and the elite class can express their divergent
views only through their Senators and Congressmen. Even the buffoons and retardates deserve to
have their interests considered and aired by the people's representatives. In the democracy we have
and which we try to improve upon, the Commission on Appointments cannot be expected to function
like a mindless machine without any debates or even imperfections. The discussions and
wranglings, the delays and posturing are part of the democratic process. They should never be used
as arguments to restrict legislative power where the Constitution does not expressly provide for such
a limitation.
The Commission on Human Rights is a very important office. Our country is beset by widespread
insurgency, marked inequity in the ownership and enjoyment of wealth and political power, and
dangerous conflicts arising from Ideological, ethnic and religious differences. The tendency to use
force and violent means against those who hold opposite views appears irresistible to the holders of
both governmental and rebel firepower.
The President is doubly careful in the choice of the Chairman and Members of the Commission on
Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the appointments to be
a joint responsibility of the Presidency and Congress, through the Commission on Appointments.
She wants a more thorough screening process for these sensitive positions. She wants only the best
to survive the process.
Why should we tell both the President and Congress that they are wrong.?
Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel
concentrations should receive greater scrutiny in his appointment than the Chairman of the Human

Rights Commission who has infinitely more power and opportunity to bring the rebellion to a just and
satisfactory end.
But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the Chairman of
the Human Rights Commission as one of the "other officers whose appointments are vested in him
in this Constitution" under the first sentence of Section 16, Article VII. Certainly, the chairman cannot
be appointed by Congress or the Supreme Court. Neither should we read Article XIII of the
Constitution as classifying the chairman among the lower ranking officers who by law may be
appointed by the head of an executive department, agency, commission, or board. The Constitution
created the independent office. The President was intended to appoint its chairman.
I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in the call
for a re-examination of its doctrine.
CRUZ, J., dissenting:
This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adopted by
the Court more than a year ago over two dissents. The President of the Philippines has taken a
second look at it, and so too has the Commission on Appointments representing both Houses of the
Congress of the Philippines. It appears that they are not exactly certain now that the decision in that
case was correct after all. I believe it will not be amiss for us too, in a spirit of humility, to read the
Constitution again on the possibility that we may have misread it before.
The ponencia assumes that we were right the first time and that the Mison case is settledthere is
no need to re-examine it. It therefore approaches the problem at hand from another perspective and
would sustain the petitioner on an additional ground.
The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not
confirmed, conformably to Mison, and could not be replaced with the second appointment on 14
January 1989 because there was no vacancy to fill. By this reasoning, the opinion would definitely
avoid the question squarely presented to the Court, viz., whether or not the Chairman of the
Commission on Human Rights is subject to confirmation as required now by both the President of
the Philippines and the Commission on Appointments. In effect, we are asked to reconsider the
Mison ruling in the light of this supervening significant albeit decidedly not controlling circumstance.
The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think we must
address the legal question frontally instead of falling back on a legal sleight-of hand of now-you-seeit-now-you-don't.
As one who never agreed with the bison ruling in the first place, I suspect that the seeming
diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over its
correctness. I think this is the reason another justification had to be offered to bolster Mison.
In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human Rights
as among the important officers who would not have to be confirmed if the majority view were to be
followed. By contrast, and inexplicably, the colonel in the armed forces would need confirmation
although he is not a constitutional officer with the serious responsibilities of the former. Also not to be
confirmed are the Governor of the Central Bank unlike the relatively minor multisectoral
representative of the regional consultative commission, and the Undersecretary of Foreign Affairs

although the consul, who is his subordinate, would need confirmation. When I pointed to these
incongruous situations, I was told it was not our place to question the wisdom of the Constitution.
What I was questioning was not the wisdom of the Constitution but the wisdom of our interpretation
which I said would lead to absurd consequences. But only Justice Gutierrez agreed with me.
Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our own
ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a
circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.
As I see it, the submission of the petitioner's appointment to the Commission on Appointments is a
clear indication that the President of the Philippines no longer agrees with the Mison, ruling, at least
insofar as it applies to the present case. Signifi cantly the Commission on Appointments, which was
also aware of Mison, has as clearly rejected it by acting on the appointment. These meaningful
developments must give us pause. We may have committed an error in Mison, which is bad enough,
and may be persisting in it now, which is worse.
Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent with my
view in Mison, I submit that what President Aquino extended to the petitioner on 17 December 1988
was an ad interim appointment that although immediately effective upon acceptance was still subject
to confirmation. I cannot agree that when the President said the petitioner could and enter into the
performance of her duties, "all that remained for Bautista to do was to reject or accept the
appointment." In fact, on the very day it was extended, the ad interim appointment was submitted by
the President of the Philippines to the Commission on Appointments "for confirmation."
The ponencia says that the appointment did not need any confirmation, being the sole act of the
President under the Mison ruling. That would have settled the question quite conclusively, but the
opinion goes on to argue another justification that I for one find unnecessary, not to say untenable. I
sense here a palpable effort to bolster Mison because of the apprehension that it is falling apart.
Of course, there was no vacancy when the nomination was made on 14 January 1989. There is no
question that the petitioner was still validly holding the office by virtue of her ad interim appointment
thereto on 17 December 1988. The nomination made later was unnecessary because the ad
interim appointment was still effective. When the Commission on Appointments sent the petitioner
the letters dated 9 January 1989 and 10 January 1989 requiring her to submit certain data and
inviting her to appear before it, it was acting not on the nomination but on the ad
interim appointment. What was disapproved was the ad interim appointment, not the nomination.
The nomination of 14 January 1989 is not in issue in this case. It is entirely immaterial. At best, it is
important only as an affirmation of the President's acknowledgment that the Chairman of the
Commission on Human Rights must be confirmed under Article VII, Section 16 of the Constitution.
It does not follow, of course, that simply because the President of the Philippines has changed her
mind, and with the expressed support of the Commission on Appointments, we should docilely
submit and reverse Mison. That is not how democracy works. The Court is independent. I do
suggest, however, that the majority could have erred in that case and that the least we can do now is
to take a more careful look at the decision. Let us check our bearings to make sure we have not
gone astray. That is all I ask

I repeat my view that the Chairman of the Commission on Human Rights is subject to confirmation
by the Commission on Appointments, for the reasons stated in my dissent in Mison Accordingly, I
vote to DENY the petition.
GRIO-AQUINO, J.: dissenting:
I believe that the appointments of the chairman and the members of the Commission on Human
Rights by the President require review and confirmation by the Commission on Appointments in view
of the following provision of Section 16, Article VII of the 1987 Constitution:
SEC. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution....
In my view, the "other officers" whose appointments are vested in the President in the Constitution
are theconstitutional officers, meaning those who hold offices created under the Constitution, and
whose appointments are not otherwise provided for in the Charter. Those constitutional officers are
the chairmen and members of the Constitutional Commissions, namely: the Civil Service
Commission (Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IXD), and the Commission on Human Rights (Sec. 17, XIII). These constitutional commissions are,
without excaption, declared to be "independent," but while in the case of the Civil Service
Commission, the Commission on Elections and the Commission on Audit, the 1987 Constitution
expressly provides that "the Chairman and the Commissioners shall be appointed by the President
with the consent of the Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX - C and
Sec. 1[2], Art. IX-D), no such clause is found in Section 17, Article VIII creating the Commission on
Human Rights. Its absence, however, does not detract from, or diminish, the President's power to
appoint the Chairman and Commissioners of the said Commission. The source of that power is the
first sentence of Section 16, Article VII of the Constitution for:
(1) the Commission on Human Rights is an office created by the Constitution, and
(2) the appointment of the Chairman and Commissioners thereof is vested in the President by the
Constitution.
Therefore, the said appointments shall be made by the President with the consent of the
Commission on Appointments, as provided in Section 16, Article VII of the Constitution.
It is not quite correct to argue, as the petitioner does, that the power of the Commission on
Appointments to review and confirm appointments made by the President is a "derogation of the
Chief Executive's appointing power." That power is given to the Commission on Appointments as
part of the system of checks and balances in the democratic form of government provided for in our
Constitution. As stated by a respected constitutional authority, former U.P. Law Dean and President
Vicente G. Sinco:
The function of confirming appointments is part of the power of appointment itself. It
is, therefore, executive rather than legislative in nature. In giving this power to an
organ of the legislative department, the Constitution merely provides a detail in the

scheme of checks and balances between the executive and legislative organs of the
government. (Phil. Political Law by Sinco, 11th ed., p. 266).
WHEREFORE, I vote to dismiss the petition.
Medialdea, J., dissenting:

Republic of the Philippines

Supreme Court
Manila

EN BANC
ARTURO M. DE CASTRO,
Petitioner,

G. R. No. 191002

- versus JUDICIAL AND BAR COUNCIL


(JBC) and PRESIDENT GLORIA
MACAPAGAL ARROYO,
Respondents.
x-----------------------x
JAIME N. SORIANO,
Petitioner,

G.R. No. 191032

- versus JUDICIAL AND BAR COUNCIL


(JBC),
Respondent.
x-----------------------x
PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA),
Petitioner,
- versus JUDICIAL AND BAR COUNCIL
(JBC),
Respondent.
x-----------------------x

G.R. No. 191057

IN RE APPLICABILITY OF
SECTION 15, ARTICLE VII OF
THE CONSTITUTION TO
APPOINTMENTS TO THE
JUDICIARY,
ESTELITO P. MENDOZA,
Petitioner,
x-----------------------x
JOHN G. PERALTA,
Petitioner,
- versus JUDICIAL AND BAR COUNCIL
(JBC).
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - -x
PETER IRVING CORVERA;
CHRISTIAN ROBERT S. LIM;
ALFONSO V. TAN, JR.;
NATIONAL UNION OF PEOPLES
LAWYERS;
MARLOU B. UBANO;
INTEGRATED BAR OF THE
PHILIPPINES-DAVAO DEL SUR
CHAPTER, represented by its
Immediate Past President, ATTY.
ISRAELITO P. TORREON, and
the latter in his own personal
capacity as a MEMBER of the
PHILIPPINE BAR;
MITCHELL JOHN L. BOISER;
BAGONG ALYANSANG BAYAN

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

G.R. No. 191149

(BAYAN) CHAIRMAN DR.


CAROLINA P. ARAULLO;
BAYAN SECRETARY GENERAL
RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE)
CHAIRMAN FERDINAND
GAITE; KALIPUNAN NG
DAMAYANG MAHIHIRAP
(KADAMAY) SECRETARY
GENERAL GLORIA ARELLANO;
ALYANSA NG NAGKAKAISANG
KABATAAN NG SAMBAYANAN
PARA SA KAUNLARAN
(ANAKBAYAN) CHAIRMAN
KEN LEONARD RAMOS; TAYO
ANG PAG-ASA CONVENOR
ALVIN PETERS; LEAGUE OF
FILIPINO STUDENTS (LFS)
CHAIRMAN JAMES MARK
TERRY LACUANAN RIDON;
NATIONAL UNION OF
STUDENTS OF THE
PHILIPPINES (NUSP)
CHAIRMAN EINSTEIN
RECEDES; COLLEGE EDITORS
GUILD OF THE PHILIPPINES
(CEGP) CHAIRMAN VIJAE
ALQUISOLA; and STUDENT
CHRISTIAN MOVEMENT OF
THE PHILIPPINES (SCMP)
CHAIRMAN MA. CRISTINA
ANGELA GUEVARRA;
WALDEN F. BELLO and
LORETTA ANN P. ROSALES;

WOMEN TRIAL LAWYERS


ORGANIZATION OF THE
PHILIPPINES, represented by
YOLANDA QUISUMBINGJAVELLANA; BELLEZA
ALOJADO DEMAISIP;
TERESITA GANDIONCOOLEDAN; MA. VERENA
KASILAG-VILLANUEVA;
MARILYN STA. ROMANA;
LEONILA DE JESUS; and
GUINEVERE DE LEON.
Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - - -x
ATTY. AMADOR Z.
TOLENTINO, JR., (IBP
GovernorSouthern Luzon), and
ATTY. ROLAND B. INTING
(IBP GovernorEastern Visayas),
Petitioners,

G.R. No. 191342

- versus JUDICIAL AND BAR COUNCIL


(JBC),
Respondent.
x-----------------------x
PHILIPPINE BAR
ASSOCIATION, INC.,
Petitioner,

- versus -

G.R. No. 191420


Present:
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,

ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
JUDICIAL AND BAR COUNCIL
Promulgated:
and HER EXCELLENCY
March 17, 2010
GLORIA MACAPAGALARROYO,
Respondents.
x-----------------------------------------------------------------------------------------x
DECISION
BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno by May 17,
2010 occurs just days after the coming presidential elections on May 10, 2010.
Even before the event actually happens, it is giving rise to many legal dilemmas.
May the incumbent President appoint his successor, considering that Section 15,
Article VII (Executive Department) of the Constitution prohibits the President or
Acting President from making appointments within two months immediately
before the next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued vacancies therein
will prejudice public service or endanger public safety? What is the relevance of
Section 4 (1), Article VIII (Judicial Department) of the Constitution, which
provides that any vacancy in the Supreme Court shall be filled within 90 days from
the occurrence thereof, to the matter of the appointment of his successor? May the
Judicial and Bar Council (JBC) resume the process of screening the candidates
nominated or being considered to succeed Chief Justice Puno, and submit the list
of nominees to the incumbent President even during the period of the prohibition
under Section 15, Article VII? Does mandamus lie to compel the submission of the
shortlist of nominees by the JBC?
Precs of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta respectively


commenced G.R. No. 191002[1] and G.R. No. 191149[2] as special civil actions
for certiorariand mandamus, praying that the JBC be compelled to submit to the
incumbent President the list of at least three nominees for the position of the next
Chief Justice.
In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition,
proposes to prevent the JBC from conducting its search, selection and nomination
proceedings for the position of Chief Justice.
In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine
Constitution Association (PHILCONSA) wants the JBC to submit its list of
nominees for the position of Chief Justice to be vacated by Chief Justice Puno
upon his retirement on May 17, 2010, because the incumbent President is not
covered by the prohibition that applies only to appointments in the Executive
Department.
In Administrative Matter No. 10-2-5-SC, [5] petitioner Estelito M. Mendoza, a
former Solicitor General, seeks a ruling from the Court for the guidance of the JBC
on whether Section 15, Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the
petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting,
Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern
Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of
nominees for the position of Chief Justice to the President for appointment during
the period provided for in Section 15, Article VII.
All the petitions now before the Court pose as the principal legal question whether
the incumbent President can appoint the successor of Chief Justice Puno upon his
retirement. That question is undoubtedly impressed with transcendental importance
to the Nation, because the appointment of the Chief Justice is any Presidents most
important appointment.
A precedent frequently cited is In Re Appointments Dated March 30, 1998 of
Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional

Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively (Valenzuela),[7] by which the Court held that Section 15, Article VII
prohibited the exercise by the President of the power to appoint to judicial
positions during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting opinions on the
issue expressed by legal luminaries one side holds that the incumbent President is
prohibited from making appointments within two months immediately before the
coming presidential elections and until the end of her term of office as President on
June 30, 2010, while the other insists that the prohibition applies only to
appointments to executive positions that may influence the election and, anyway,
paramount national interest justifies the appointment of a Chief Justice during the
election ban has impelled the JBC to defer the decision to whom to send its list of
at least three nominees, whether to the incumbent President or to her successor.
[8]
He opines that the JBC is thereby arrogating unto itself the judicial function that
is not conferred upon it by the Constitution, which has limited it to the task of
recommending appointees to the Judiciary, but has not empowered it to finally
resolve constitutional questions, which is the power vested only in the Supreme
Court under the Constitution. As such, he contends that the JBC acted with grave
abuse of discretion in deferring the submission of the list of nominees to the
President; and that a final and definitive resolution of the constitutional questions
raised above would diffuse (sic) the tension in the legal community that would go a
long way to keep and maintain stability in the judiciary and the political system.[9]
In G.R. No. 191032, Soriano offers the view that the JBC committed a grave
abuse of discretion amounting to lack or excess of its jurisdiction when it resolved
unanimously on January 18, 2010 to open the search, nomination, and selection
process for the position of Chief Justice to succeed Chief Justice Puno, because the
appointing authority for the position of Chief Justice is the Supreme Court itself,
the Presidents authority being limited to the appointment of the Members of the
Supreme Court. Hence, the JBC should not intervene in the process, unless a
nominee is not yet a Member of the Supreme Court.[10]

For its part, PHILCONSA observes in its petition in G.R. No. 191057 that
unorthodox and exceptional circumstances spawned by the discordant

interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in


relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution have bred a frenzied
inflammatory legal debate on the constitutional provisions mentioned that has
divided the bench and the bar and the general public as well, because of its
dimensional impact to the nation and the people, thereby fashioning transcendental
questions or issues affecting the JBCs proper exercise of its principal function of
recommending appointees to the Judiciary by submitting only to the President (not
to the next President) a list of at least three nominees prepared by the Judicial and
Bar Council for every vacancy from which the members of the Supreme Court and
judges of the lower courts may be appointed. [11] PHILCONSA further believes and
submits that now is the time to revisit and review Valenzuela, the strange and
exotic Decision of the Court en banc.[12]
Peralta states in his petition in G.R. No. 191149 that mandamus can compel
the JBC to immediately transmit to the President, within a reasonable time, its
nomination list for the position of chief justice upon the mandatory retirement of
Chief Justice Reynato S. Puno, in compliance with its mandated duty under the
Constitution in the event that the Court resolves that the President can appoint a
Chief Justice even during the election ban under Section 15, Article VII of the
Constitution.[13]
The petitioners in G.R. No. 191342 insist that there is an actual controversy,
considering that the JBC has initiated the process of receiving applications for the
position of Chief Justice and has in fact begun the evaluation process for the
applications to the position, and is perilously near completing the nomination
process and coming up with a list of nominees for submission to the President,
entering into the period of the ban on midnight appointments on March 10, 2010,
which only highlights the pressing and compelling need for a writ of prohibition to
enjoin such alleged ministerial function of submitting the list, especially if it will
be cone within the period of the ban on midnight appointments.[14]
Antecedents
These cases trace their genesis to the controversy that has arisen from the
forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or
seven days after the presidential election. Under Section 4(1), in relation to Section

9, Article VIII, that vacancy shall be filled within ninety days from the occurrence
thereof from a list of at least three nominees prepared by the Judicial and Bar
Council for every vacancy.
On December 22, 2009, Congressman Matias V. Defensor, an ex
officio member of the JBC, addressed a letter to the JBC, requesting that the
process for nominations to the office of the Chief Justice be commenced
immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC passed a
resolution,[15] which reads:
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to
start the process of filling up the position of Chief Justice to be vacated on May
17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato
S. Puno.
It will publish the opening of the position for applications or
recommendations; deliberate on the list of candidates; publish the names of
candidates; accept comments on or opposition to the applications; conduct public
interviews of candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in
the light of the Constitution, existing laws and jurisprudence, the JBC welcomes
and will consider all views on the matter.
18 January 2010.

(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or
recommendation, and published for that purpose its announcement dated January
20, 2010,[16] viz:

The Judicial and Bar Council (JBC) announces the opening for application
or recommendation, of the position of CHIEF JUSTICE OF THE SUPREME
COURT, which will be vacated on 17 May 2010 upon the retirement of the
incumbent Chief Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be submitted not
later than 4 February 2010 (Thursday) to the JBC Secretariat xxx:

The announcement was published on January 20, 2010 in the Philippine


Daily Inquirer and The Philippine Star.[17]
Conformably with its existing practice, the JBC automatically considered for the
position of Chief Justice the five most senior of the Associate Justices of the Court,
namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona;
Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco,
Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two
declined their nomination through letters dated January 18, 2010 and January 25,
2010, respectively.[18]
Others either applied or were nominated. Victor Fernandez, the retired Deputy
Ombudsman for Luzon, applied, but later formally withdrew his name from
consideration through his letter dated February 8, 2010. Candidates who accepted
their nominations without conditions were Associate Justice Renato C. Corona;
Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D.
Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates
who accepted their nominations with conditions were Associate Justice Antonio T.
Carpio and Associate Justice Conchita Carpio Morales.[19] Declining their
nominations were Atty. Henry Villarica (via telephone conversation with the
Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller,
Jr. (via telephone conversation with the Executive Officer of the JBC on February
8, 2010).[20]
The JBC excluded from consideration former RTC Judge Florentino Floro (for
failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis
Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office
of the Ombudsman).[21]

In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of
announcing the names of the following candidates to invite the public to file their
sworn complaint, written report, or opposition, if any, not later than February 22,
2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice
Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion,
and Associate Justice Sandoval. The announcement came out in the Philippine
Daily Inquirer and The Philippine Star issues of February 13, 2010.[22]
Issues
Although it has already begun the process for the filling of the position of
Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when
to submit to the President its list of nominees for the position due to the
controversy now before us being yet unresolved. In the meanwhile, time is
marching in quick step towards May 17, 2010 when the vacancy occurs upon the
retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal
luminaries, but also among non-legal quarters, and brought out highly disparate
opinions on whether the incumbent President can appoint the next Chief Justice or
not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments
of two judges of the Regional Trial Court, the Court addressed this issue now
before us as an administrative matter to avoid any possible polemics concerning
the matter, but he opines that the polemics leading to Valenzuela would be
miniscule [sic] compared to the polemics that have now erupted in regard to the
current controversy, and that unless put to a halt, and this may only be achieved by
a ruling from the Court, the integrity of the process and the credibility of whoever
is appointed to the position of Chief Justice, may irreparably be impaired.[23]
Accordingly, we reframe the issues as submitted by each petitioner in the order of
the chronological filing of their petitions.

G.R. No. 191002

a. Does the JBC have the power and authority to resolve the
constitutional question of whether the incumbent President can
appoint a Chief Justice during the election ban period?
b. Does the incumbent President have the power and authority to
appoint during the election ban the successor of Chief Justice Puno
when he vacates the position of Chief Justice on his retirement
on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the Supreme
Court en banc?
G.R. No. 191057
a. Is the constitutional prohibition against appointment under Section
15, Article VII of the Constitution applicable only to positions in
the Executive Department?
b. Assuming that the prohibition under Section 15, Article VII of the
Constitution also applies to members of the Judiciary, may such
appointments be excepted because they are impressed with public
interest or are demanded by the exigencies of public service,
thereby justifying these appointments during the period of
prohibition?
c. Does the JBC have the authority to decide whether or not to include
and submit the names of nominees who manifested interest to be
nominated for the position of Chief Justice on the understanding
that his/her nomination will be submitted to the next President in
view of the prohibition against presidential appointments from
March 11, 2010 until June 30, 2010?
A. M. No. 10-2-5-SC

a. Does Section 15, Article VII of the Constitution apply to


appointments to positions in the Judiciary under Section 9, Article
VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make appointments to the
Judiciary after March 10, 2010, including that for the position of
Chief Justice after Chief Justice Puno retires on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the submission of the
short list to President Gloria Macapagal-Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of nominees to
the incumbent President without committing a grave violation of
the Constitution and jurisprudence prohibiting the incumbent
President from making midnight appointments two months
immediately preceding the next presidential elections until the end
of her term?
b. Is any act performed by the JBC, including the vetting of the
candidates for the position of Chief Justice, constitutionally invalid
in view of the JBCs illegal composition allowing each member
from the Senate and the House of Representatives to have one vote
each?
On February 16, 2010, the Court directed the JBC and the Office of the
Solicitor General (OSG) to comment on the consolidated petitions, except that
filed inG.R. No. 191342.
On February 26, 2010, the JBC submitted its comment, reporting therein that
the next stage of the process for the selection of the nominees for the position of
Chief Justice would be the public interview of the candidates and the preparation
of the short list of candidates, including the interview of the constitutional experts,
as may be needed.[24] It stated:[25]

Likewise, the JBC has yet to take a position on when to submit the
shortlist to the proper appointing authority, in light of Section 4 (1),
Article VIII of the Constitution, which provides that vacancy in the
Supreme Court shall be filled within ninety (90) days from the occurrence
thereof, Section 15, Article VII of the Constitution concerning the ban on
Presidential appointments two (2) months immediately before the next
presidential elections and up to the end of his term and Section 261 (g),
Article XXII of the Omnibus Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the Constitution,
the JBC will be guided by its decision in these consolidated Petitions and
Administrative Matter.

On February 26, 2010, the OSG also submitted its comment, essentially
stating that the incumbent President can appoint the successor of Chief Justice
Puno upon his retirement by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the
JBC from performing its principal function under the Constitution to recommend
appointees in the Judiciary; (b) the JBCs function to recommend is a continuing
process, which does not begin with each vacancy or end with each nomination,
because the goal is to submit the list of nominees to Malacaang on the very day the
vacancy arises;[26] the JBC was thus acting within its jurisdiction when it
commenced and set in motion the process of selecting the nominees to be
submitted to the President for the position of Chief Justice to be vacated by Chief
Justice Puno;[27] (c) petitioner Sorianos theory that it is the Supreme Court, not the
President, who has the power to appoint the Chief Justice, is incorrect, and
proceeds from his misinterpretation of the phrase members of the Supreme Court
found in Section 9, Article VIII of the Constitution as referring only to the
Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ
of mandamus can issue to compel the JBC to submit the list of nominees to the
President, considering that its duty to prepare the list of at least three nominees is
unqualified, and the submission of the list is a ministerial act that the JBC is
mandated to perform under the Constitution; as such, the JBC, the nature of whose
principal function is executive, is not vested with the power to resolve who has the
authority to appoint the next Chief Justice and, therefore, has no discretion to

withhold the list from the President; [29] and (e) a writ of mandamus cannot issue to
compel the JBC to include or exclude particular candidates as nominees,
considering that there is no imperative duty on its part to include in or exclude
from the list particular individuals, but, on the contrary, the JBCs determination of
who it nominates to the President is an exercise of a discretionary duty.[30]
The OSG contends that the incumbent President may appoint the next Chief
Justice, because the prohibition under Section 15, Article VII of the Constitution
does not apply to appointments in the Supreme Court. It argues that any vacancy in
the Supreme Court must be filled within 90 days from its occurrence, pursuant to
Section 4(1), Article VIII of the Constitution; [31] that in their deliberations on the
mandatory period for the appointment of Supreme Court Justices, the framers
neither mentioned nor referred to the ban against midnight appointments, or its
effects on such period, or vice versa;[32] that had the framers intended the
prohibition to apply to Supreme Court appointments, they could have easily
expressly stated so in the Constitution, which explains why the prohibition found
in Article VII (Executive Department) was not written in Article VIII (Judicial
Department); and that the framers also incorporated in Article VIII ample
restrictions or limitations on the Presidents power to appoint members of the
Supreme Court to ensure its independence from political vicissitudes and its
insulation from political pressures,[33]such as stringent qualifications for the
positions, the establishment of the JBC, the specified period within which the
President shall appoint a Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment of RTC
Judges, the situation now refers to the appointment of the next Chief Justice to
which the prohibition does not apply; that, at any rate, Valenzuela even recognized
that there might be the imperative need for an appointment during the period of the
ban, like when the membership of the Supreme Court should be so reduced that it
will have no quorum, or should the voting on a particular important question
requiring expeditious resolution be divided;[34] and that Valenzuela also recognized
that the filling of vacancies in the Judiciary is undoubtedly in the public interest,
most especially if there is any compelling reason to justify the making of the
appointments during the period of the prohibition.[35]

Lastly, the OSG urges that there are now undeniably compelling reasons for
the incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of
cases involving sensitive political issues is quite expected;[36] (b) the Court acts as
the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge
of all contests relating to the election, returns, and qualifications of the President
and Vice President and, as such, has the power to correct manifest errors on the
statement of votes (SOV) and certificates of canvass (COC); [37] (c) if history has
shown that during ordinary times the Chief Justice was appointed immediately
upon the occurrence of the vacancy, from the time of the effectivity of the
Constitution, there is now even more reason to appoint the next Chief Justice
immediately upon the retirement of Chief Justice Puno; [38] and (d) should the next
Chief Justice come from among the incumbent Associate Justices of the Supreme
Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to start
the selection process for the filling up of the vacancy in accordance with the
constitutional mandate.[39]
On March 9, 2010, the Court admitted the following comments/oppositionsin-intervention, to wit:

(a) The opposition-in-intervention dated February 22, 2010 of Atty.


Peter Irving Corvera (Corvera);[40]
(b) The opposition-in-intervention dated February 22, 2010 of Atty.
Christian Robert S. Lim (Lim);
(c) The opposition-in-intervention dated February 23, 2010 of Atty.
Alfonso V. Tan, Jr. (Tan);
(d) The comment/opposition-in-intervention dated March 1, 2010 of
the National Union of Peoples Lawyers (NUPL);
(e) The opposition-in-intervention dated February 25, 2010 of Atty.
Marlou B. Ubano (Ubano);

(f) The opposition-in-intervention dated February 25, 2010 of


Integrated Bar of the Philippines-Davao del Sur Chapter and its
Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao
del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of Atty.
Mitchell John L. Boiser (Boiser);
(h)The consolidated comment/opposition-in-intervention dated
February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo;
BAYAN Secretary General Renato M. Reyes, Jr.; Confederation
for Unity, Recognition and Advancement of Government
Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan
ng Damayang Mahihirap (KADAMAY) Secretary General Gloria
Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para
sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos;
Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino
Students (LFS) Chairman James Mark Terry Lacuanan Ridon;
National Union of Students of the Philippines (NUSP) Chairman
Einstein Recedes, College Editors Guild of the Philippines (CEGP)
Chairman Vijae Alquisola; and Student Christian Movement of the
Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra
(BAYAN et al.);
(i) The opposition-in-intervention dated March 3, 2010 of Walden F.
Bello and Loretta Ann P. Rosales (Bello et al.); and
(j) The consolidated comment/opposition-in-intervention dated March
4, 2010 of the Women Trial Lawyers Organization of the
Philippines (WTLOP), represented by Atty. Yolanda QuisumbingJavellana; Atty. Belleza Alojado Demaisip; Atty. Teresita
Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty.
Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere
de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL
take the position that De Castros petition was bereft of any basis, because under
Section 15, Article VII, the outgoing President is constitutionally banned from

making any appointments from March 10, 2010 until June 30, 2010, including the
appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie
to compel the JBC to submit the list of nominees to the outgoing President if the
constitutional prohibition is already in effect. Tan adds that the prohibition against
midnight appointments was applied by the Court to the appointments to the
Judiciary made by then President Ramos, with the Court holding that the duty of
the President to fill the vacancies within 90 days from occurrence of the vacancies
(for the Supreme Court) or from the submission of the list (for all other courts) was
not an excuse to violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et
al. oppose the insistence that Valenzuela recognizes the possibility that the
President may appoint the next Chief Justice if exigent circumstances warrant the
appointment, because that recognition is obiter dictum; and aver that the absence of
a Chief Justice or even an Associate Justice does not cause epic damage or absolute
disruption or paralysis in the operations of the Judiciary. They insist that even
without the successor of Chief Justice Puno being appointed by the incumbent
President, the Court is allowed to sit and adjudge en banc or in divisions of three,
five or seven members at its discretion; that a full membership of the Court is not
necessary; that petitioner De Castros fears are unfounded and baseless, being based
on a mere possibility, the occurrence of which is entirely unsure; that it is not in the
national interest to have a Chief Justice whose appointment is unconstitutional and,
therefore, void; and that such a situation will create a crisis in the judicial system
and will worsen an already vulnerable political situation.
ice is imperative for the stability of the judicial system and the political situation in
the country when the election-related questions reach the Court as false, because there
is an existing law on filling the void brought about by a vacancy in the office of Chief
Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been
repealed by Batas Pambansa Blg. 129 or any other law; that a temporary or
an acting Chief Justice is not anathema to judicial independence; that the designation
of an acting Chief Justice is not only provided for by law, but is also dictated by
practical necessity; that the practice was intended to be enshrined in the 1987
Constitution, but the Commissioners decided not to write it in the Constitution on
account of the settled practice; that the practice was followed under the 1987
Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B.
Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief

Justice prior to his official appointment as Chief Justice; that said filling up of a
vacancy in the office of the Chief Justice was acknowledged and even used by
analogy in the case of the vacancy of the Chairman of the Commission on Elections,
per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has
shown that this rule of succession has been repeatedly observed and has become a part
of its tradition.

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that


the Omnibus Election Code penalizes as an election offense the act of any
government official who appoints, promotes, or gives any increase in salary or
remuneration or privilege to any government official or employee during the
period of 45 days before a regular election; that the provision covers all appointing
heads, officials, and officers of a government office, agency or instrumentality,
including the President; that for the incumbent President to appoint the next Chief
Justice upon the retirement of Chief Justice Puno, or during the period of the ban
under theOmnibus Election Code, constitutes an election offense; that even an
appointment of the next Chief Justice prior to the election ban is fundamentally
invalid and without effect because there can be no appointment until a vacancy
occurs; and that the vacancy for the position can occur only by May 17, 2010.
Intervenor Boiser adds that De Castros prayer to compel the submission of
nominees by the JBC to the incumbent President is off-tangent because the position
of Chief Justice is still not vacant; that to speak of a list, much more a submission
of such list, before a vacancy occurs is glaringly premature; that the proposed
advance appointment by the incumbent President of the next Chief Justice will be
unconstitutional; and that no list of nominees can be submitted by the JBC if there
is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no
distinction between the kinds of appointments made by the President; and that the
Court, in Valenzuela, ruled that the appointments by the President of the two judges
during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987
Constitution does not apply only to the appointments in the Executive Department,

but also to judicial appointments, contrary to the submission of PHILCONSA; that


Section 15 does not distinguish; and that Valenzuela already interpreted the
prohibition as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Sorianos contention that the
power to appoint the Chief Justice is vested, not in the President, but in the
Supreme Court, is utterly baseless, because the Chief Justice is also a Member of
the Supreme Court as contemplated under Section 9, Article VIII; and that, at any
rate, the term members was interpreted in Vargas v. Rillaroza (G.R. No. L-1612,
February 26, 1948) to refer to the Chief Justice and the Associate Justices of the
Supreme Court; that PHILCONSAs prayer that the Court pass a resolution
declaring that persons who manifest their interest as nominees, but with conditions,
shall not be considered nominees by the JBC is diametrically opposed to the
arguments in the body of its petition; that such glaring inconsistency between the
allegations in the body and the relief prayed for highlights the lack of merit of
PHILCONSAs petition; that the role of the JBC cannot be separated from the
constitutional prohibition on the President; and that the Court must direct the JBC
to follow the rule of law, that is, to submit the list of nominees only to the next
duly elected President after the period of the constitutional ban against midnight
appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC because it is neither a
judicial nor a quasi-judicial body has no duty under the Constitution to resolve the
question of whether the incumbent President can appoint a Chief Justice during the
period of prohibition; that even if the JBC has already come up with a short list, it
still has to bow to the strict limitations under Section 15, Article VII; that should
the JBC defer submission of the list, it is not arrogating unto itself a judicial
function, but simply respecting the clear mandate of the Constitution; and that the
application of the general rule in Section 15, Article VII to the Judiciary does not
violate the principle of separation of powers, because said provision is an
exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of
nominating appointees to the Supreme Court is purely ministerial and does not
involve the exercise of judgment; that there can be no default on the part of the
JBC in submitting the list of nominees to the President, considering that the call for
applications only begins from the occurrence of the vacancy in the Supreme Court;

and that the commencement of the process of screening of applicants to fill the
vacancy in the office of the Chief Justice only begins from the retirement on May
17, 2010, for, prior to this date, there is no definite legal basis for any party to
claim that the submission or non-submission of the list of nominees to the
President by the JBC is a matter of right under law.
The main question presented in all the filings herein because it involves two
seemingly conflicting provisions of the Constitution imperatively demands the
attention and resolution of this Court, the only authority that can resolve the
question definitively and finally. The imperative demand rests on the ever-present
need,first, to safeguard the independence, reputation, and integrity of the entire
Judiciary, particularly this Court, an institution that has been unnecessarily dragged
into the harsh polemics brought on by the controversy; second, to settle once and
for all the doubt about an outgoing Presidents power to appoint to the Judiciary
within the long period starting two months before the presidential elections until
the end of the presidential term; and third, to set a definite guideline for the JBC to
follow in the discharge of its primary office of screening and nominating qualified
persons for appointment to the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners
have locus standi.
Black defines locus standi as a right of appearance in a court of justice on a
given question.[41] In public or constitutional litigations, the Court is often burdened
with the determination of the locus standi of the petitioners due to the ever-present
need to regulate the invocation of the intervention of the Court to correct any
official action or policy in order to avoid obstructing the efficient functioning of
public officials and offices involved in public service. It is required, therefore, that
the petitioner must have a personal stake in the outcome of the controversy, for, as
indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:[42]

The question on legal standing is whether such parties have alleged


such a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult constitutional
questions.[43] Accordingly, it has been held that the interest of a person
assailing the constitutionality of a statute must be direct and personal. He
must be able to show, not only that the law or any government act is invalid,
but also that he sustained or is in imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he suffers thereby
in some indefinite way. It must appear that the person complaining has been
or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.[44]

It is true that as early as in 1937, in People v. Vera,[45] the Court adopted


the direct injury test for determining whether a petitioner in a public action
had locus standi. There, the Court held that the person who would assail the
validity of a statute must have a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result. Vera was followed
in Custodio v. President of the Senate,[46] Manila Race Horse Trainers Association
v. De la Fuente,[47] Anti-Chinese League of the Philippines v. Felix, [48] and Pascual
v. Secretary of Public Works.[49]
Yet, the Court has also held that the requirement of locus standi, being a
mere procedural technicality, can be waived by the Court in the exercise of its
discretion. For instance, in 1949, in Araneta v. Dinglasan,[50] the Court liberalized
the approach when the cases had transcendental importance. Some notable
controversies whose petitioners did not pass the direct injury test were allowed to
be treated in the same way as in Araneta v. Dinglasan.[51]
In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to
resolve the issues raised by the petition due to their far-reaching implications,even
if the petitioner had no personality to file the suit. The liberal approach of Aquino
v.
Commission
on
Elections has
been
adopted
in
several notable cases,permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws,
regulations, and rulings.[53]

However, the assertion of a public right as a predicate for challenging a


supposedly illegal or unconstitutional executive or legislative action rests on the
theory that the petitioner represents the public in general. Although such petitioner
may not be as adversely affected by the action complained against as are others, it
is enough that he sufficiently demonstrates in his petition that he is entitled to
protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as
a citizen or taxpayer to gain locus standi. That is not surprising, for even if the
issue may appear to concern only the public in general, such capacities nonetheless
equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo,
[54]
the Court aptly explains why:
Case law in most jurisdictions now allows both citizen and taxpayer
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,[55] where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins:[56] In matter of mere public right,
howeverthe people are the real partiesIt is at least the right, if not the duty, of
every citizen to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied. With respect to
taxpayers suits, Terr v. Jordan[57] held that the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to
his injury cannot be denied.[58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and
Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on
behalf of the public who are directly affected by the issue of the appointment of the
next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with
Soriano averring that he is affected by the continuing proceedings in the JBC,
which involve unnecessary, if not, illegal disbursement of public funds.[59]
PHILCONSA alleges itself to be a non-stock, non-profit organization
existing under the law for the purpose of defending, protecting, and preserving the
Constitution and promoting its growth and flowering. It also alleges that the Court

has recognized its legal standing to file cases on constitutional issues in several
cases.[60]
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the
Philippines, a member of the Philippine Bar engaged in the active practice of law,
and a former Solicitor General, former Minister of Justice, former Member of the
Interim Batasang Pambansa and the Regular Batasang Pambansa, and former
member of the Faculty of the College of Law of the University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar
of the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that
they have the legal standing to enjoin the submission of the list of nominees by the
JBC to the President, for [a]n adjudication of the proper interpretation and
application of the constitutional ban on midnight appointments with regard to
respondent JBCs function in submitting the list of nominees is well within the
concern of petitioners, who are duty bound to ensure that obedience and respect for
the Constitution is upheld, most especially by government offices, such as
respondent JBC, who are specifically tasked to perform crucial functions in the
whole scheme of our democratic institution. They further allege that, reposed in
them as members of the Bar, is a clear legal interest in the process of selecting the
members of the Supreme Court, and in the selection of the Chief Justice,
considering that the person appointed becomes a member of the body that has
constitutional supervision and authority over them and other members of the legal
profession.[61]
The Court rules that the petitioners have each demonstrated adequate interest
in the outcome of the controversy as to vest them with the requisite locus
standi.The issues before us are of transcendental importance to the people as a
whole, and to the petitioners in particular. Indeed, the issues affect everyone
(including the petitioners), regardless of ones personal interest in life, because they
concern that great doubt about the authority of the incumbent President to appoint
not only the successor of the retiring incumbent Chief Justice, but also others who
may serve in the Judiciary, which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement
of legal standing in favor of any petitioner when the matter involved has

transcendental importance, or otherwise requires a liberalization of the


requirement.[62]
Yet, if any doubt still lingers about the locus standi of any petitioner, we
dispel the doubt now in order to remove any obstacle or obstruction to the
resolution of the essential issue squarely presented herein. We are not to shirk from
discharging our solemn duty by reason alone of an obstacle more technical than
otherwise. InAgan, Jr. v. Philippine International Air Terminals Co., Inc .,[63] we
pointed out: Standing is a peculiar concept in constitutional law because in some
cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act but by concerned citizens,
taxpayers or voters who actually sue in the public interest. But even if, strictly
speaking, the petitioners are not covered by the definition, it is still within the wide
discretion of the Court to waive the requirement and so remove the impediment to
its addressing and resolving the serious constitutional questions raised.[64]
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is
appropriate or ripe for adjudication, considering that although the selection process
commenced by the JBC is going on, there is yet no final list of nominees; hence,
there is no imminent controversy as to whether such list must be submitted to the
incumbent President, or reserved for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy that is
ripe for judicial determination, pointing out that petitioner De Castro has not even
shown that the JBC has already completed its selection process and is now ready to
submit the list to the incumbent President; and that petitioner De Castro is merely
presenting a hypothetical scenario that is clearly not sufficient for the Court to
exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castros petition rests
on an overbroad and vague allegation of political tension, which is insufficient
basis for the Court to exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a mere
advisory opinion on what the JBC and the President should do, and are not
invoking any issues that are justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal rights and
no assertion of opposite legal claims in any of the petitions; that PHILCONSA
does not allege any action taken by the JBC, but simply avers that the conditional
manifestations of two Members of the Court, accented by the divided opinions and
interpretations of legal experts, or associations of lawyers and law students on the
issues published in the daily newspapers are matters of paramount and
transcendental importance to the bench, bar and general public; that PHILCONSA
fails not only to cite any legal duty or allege any failure to perform the duty, but
also to indicate what specific action should be done by the JBC; that Mendoza does
not even attempt to portray the matter as a controversy or conflict of rights, but,
instead, prays that the Court should rule for the guidance of the JBC; that the fact
that the Court supervises the JBC does not automatically imply that the Court can
rule on the issues presented in the Mendoza petition, because supervision involves
oversight, which means that the subordinate officer or body must first act, and if
such action is not in accordance with prescribed rules, then, and only then, may the
person exercising oversight order the action to be redone to conform to the
prescribed rules; that the Mendoza petition does not allege that the JBC has
performed a specific act susceptible to correction for being illegal or
unconstitutional; and that the Mendoza petition asks the Court to issue an advisory
ruling, not to exercise its power of supervision to correct a wrong act by the JBC,
but to declare the state of the law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy that is ripe
for judicial determination. The reality is that the JBC already commenced the
proceedings for the selection of the nominees to be included in a short list to be
submitted to the President for consideration of which of them will succeed Chief
Justice Puno as the next Chief Justice. Although the position is not yet vacant, the
fact that the JBC began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the list of nominees to the
incumbent outgoing President or to the next President, makes the situation ripe for
judicial determination, because the next steps are the public interview of the

candidates, the preparation of the short list of candidates, and the interview of
constitutional experts, as may be needed.
A part of the question to be reviewed by the Court is whether the JBC
properly initiated the process, there being an insistence from some of the
oppositors-intervenors that the JBC could only do so once the vacancy has
occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC
may resume its process until the short list is prepared, in view of the provision of
Section 4(1), Article VIII, which unqualifiedly requires the President to appoint
one from the short list to fill the vacancy in the Supreme Court (be it the Chief
Justice or an Associate Justice) within 90 days from the occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not be
doubted. The challenges to the authority of the JBC to open the process of
nomination and to continue the process until the submission of the list of
nominees; the insistence of some of the petitioners to compel the JBC
through mandamus to submit the short list to the incumbent President; the counterinsistence of the intervenors to prohibit the JBC from submitting the short list to
the incumbent President on the ground that said list should be submitted instead to
the next President; the strong position that the incumbent President is already
prohibited under Section 15, Article VII from making any appointments, including
those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the
contrary position that the incumbent President is not so prohibited are only some of
the real issues for determination. All such issues establish the ripeness of the
controversy, considering that for some the short list must be submitted before the
vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction,
or a merely hypothetical exercise. The resolution of the controversy will surely
settle with finality the nagging questions that are preventing the JBC from moving
on with the process that it already began, or that are reasons persuading the JBC to
desist from the rest of the process.
We need not await the occurrence of the vacancy by May 17, 2010 in order
for the principal issue to ripe for judicial determination by the Court. It is enough
that one alleges conduct arguably affected with a constitutional interest, but
seemingly proscribed by the Constitution. A reasonable certainty of the occurrence
of the perceived threat to a constitutional interest is sufficient to afford a basis for

bringing a challenge, provided the Court has sufficient facts before it to enable it to
intelligently adjudicate the issues.[65] Herein, the facts are not in doubt, for only
legal issues remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.


The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential elections
and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public
safety.

The other, Section 4 (1), Article VIII (Judicial Department), states:


Section 4. (1). The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion, in division of
three, five, or seven Members. Any vacancy shall be filled within ninety days
from the occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of Soriano,


Tolentino and Inting, submit that the incumbent President can appoint the
successor of Chief Justice Puno upon his retirement on May 17, 2010, on the
ground that the prohibition against presidential appointments under Section 15,
Article VII does not extend to appointments in the Judiciary.
The Court agrees with the submission.

First. The records of the deliberations of the Constitutional Commission


reveal that the framers devoted time to meticulously drafting, styling, and
arranging the Constitution. Such meticulousness indicates that the organization and
arrangement of the provisions of the Constitution were not arbitrarily or
whimsically done by the framers, but purposely made to reflect their intention and
manifest their vision of what the Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the
allocation of the awesome powers of government among the three great
departments, the Legislative (Article VI), the Executive (Article VII), and the
Judicial Departments (Article VIII). The arrangement was a true recognition of the
principle of separation of powers that underlies the political structure, as
Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the
Court) explained in his sponsorship speech:
We have in the political part of this Constitution opted for the separation of
powers in government because we believe that the only way to protect freedom
and liberty is to separate and divide the awesome powers of government. Hence,
we return to the separation of powers doctrine and the legislative, executive and
judicial departments.[66]

As can be seen, Article VII is devoted to the Executive Department, and,


among others, it lists the powers vested by the Constitution in the President. The
presidential power of appointment is dealt with in Sections 14, 15 and 16 of the
Article.
Article VIII is dedicated to the Judicial Department and defines the duties
and qualifications of Members of the Supreme Court, among others. Section 4(1)
and Section 9 of this Article are the provisions specifically providing for the
appointment of Supreme Court Justices. In particular, Section 9 states that the
appointment of Supreme Court Justices can only be made by the President upon
the submission of a list of at least three nominees by the JBC; Section 4(1) of the
Article mandates the President to fill the vacancy within 90 days from the
occurrence of the vacancy.

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

Although Valenzuela[67] came to hold that the prohibition covered even


judicial appointments, it cannot be disputed that the Valenzuela dictum did not
firmly rest on the deliberations of the Constitutional Commission. Thereby, the
confirmation made to the JBC by then Senior Associate Justice Florenz D.
Regalado of this Court, a former member of the Constitutional Commission, about
the prohibition not being intended to apply to the appointments to the Judiciary,
which confirmationValenzuela even expressly mentioned, should prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis of
Section 4 (1), Article VIII, viz:
V . Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution
discloses that the original proposal was to have an eleven-member Supreme
Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to
fifteen. He also wished to ensure that that number would not be reduced for any
appreciable length of time (even only temporarily), and to this end proposed that
any vacancy must be filled within two months from the date that the vacancy
occurs. His proposal to have a 15-member Court was not initially
adopted. Persisting however in his desire to make certain that the size of the Court
would not be decreased for any substantial period as a result of vacancies, Lerum
proposed the insertion in the provision (anent the Courts membership) of the same
mandate that IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED
WITHIN TWO MONTHS FROM OCCURRENCE THEREOF. He later agreed to
suggestions to make the period three, instead of two, months. As thus amended,

the proposal was approved. As it turned out, however, the Commission ultimately
agreed on a fifteen-member Court. Thus it was that the section fixing the
composition of the Supreme Court came to include a command to fill up any
vacancy therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that any
vacancy shall be filled within ninety days (in the last sentence of Section 4 (1) of
Article VIII) contrasts with the prohibition in Section 15, Article VII, which is
couched in stronger negative language - that a President or Acting President shall
not make appointments
The commission later approved a proposal of Commissioner Hilario G.
Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of
Article VIII, the following paragraph: WITH RESPECT TO LOWER COURTS,
THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY
DAYS FROM THE SUBMISSION OF THE LIST (of nominees by the Judicial
and Bar Council to the President). Davide stated that his purpose was to provide a
uniform rule for lower courts. According to him, the 90-day period should be
counted from submission of the list of nominees to the President in view of the
possibility that the President might reject the list submitted to him and the JBC
thus need more time to submit a new one.
On the other hand, Section 15, Article VII - which in effect deprives the
President of his appointing power two months immediately before the next
presidential elections up to the end of his term - was approved without discussion.
[68]

However, the reference to the records of the Constitutional Commission did not
advance or support the result in Valenzuela. Far to the contrary, the records
disclosed the express intent of the framers to enshrine in the Constitution, upon the
initiative of Commissioner Eulogio Lerum, a command [to the President] to fill up
any vacancy therein within 90 days from its occurrence, which
even Valenzuela conceded.[69] The exchanges during deliberations of the
Constitutional Commission onOctober 8, 1986 further show that the filling of a
vacancy in the Supreme Court within the 90-day period was a true mandate for the
President, viz:
MR. DE CASTRO. I understand that our justices now in the Supreme Court,
together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this subsection reads: Any
vacancy shall be filled within ninety days from the occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the
vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact that in the
past 30 years, seldom has the Court had a complete complement.[70]

Moreover, the usage in Section 4(1), Article VIII of the word shall an
imperative, operating to impose a duty that may be enforced [71] should not be
disregarded.
Thereby, Sections
4(1)
imposes
on
the
President
the imperative duty to make an appointment of a Member of the Supreme Court
within 90 days from the occurrence of the vacancy. The failure by the President to
do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to
fill the vacancy in the Supreme Court was undoubtedly a special provision to
establish a definite mandate for the President as the appointing power, and cannot
be defeated by mere judicial interpretation in Valenzuela to the effect that Section
15, Article VII prevailed because it was couched in stronger negative language.
Such interpretation even turned out to be conjectural, in light of the records of the
Constitutional Commissions deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly warranted.
According to an authority on statutory construction:[72]
xxx the court should seek to avoid any conflict in the provisions of the
statute by endeavoring to harmonize and reconcile every part so that each shall be
effective. It is not easy to draft a statute, or any other writing for that matter,
which may not in some manner contain conflicting provisions. But what appears
to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly,
each provision was inserted for a definite reason. Often by considering the
enactment in its entirety, what appears to be on its face a conflict may be cleared
up and the provisions reconciled.
Consequently, that construction which will leave every word operative will
be favored over one which leaves some word or provision meaningless because of
inconsistency. But a word should not be given effect, if to do so gives the statute a
meaning contrary to the intent of the legislature. On the other hand, if full effect
cannot be given to the words of a statute, they must be made effective as far as

possible. Nor should the provisions of a statute which are inconsistent be


harmonized at a sacrifice of the legislative intention. It may be that two provisions
are irreconcilable; if so, the one which expresses the intent of the law-makers
should control. And the arbitrary rule has been frequently announced that where
there is an irreconcilable conflict between the different provisions of a statute, the
provision last in order of position will prevail, since it is the latest expression of
the legislative will. Obviously, the rule is subject to deserved criticism. It is
seldom applied, and probably then only where an irreconcilable conflict exists
between different sections of the same act, and after all other means of
ascertaining the meaning of the legislature have been exhausted. Where the
conflict is between two statutes, more may be said in favor of the rules
application, largely because of the principle of implied repeal.

In this connection, PHILCONSAs urging of a revisit and a review


of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the express
intent of the Constitutional Commission to have Section 4 (1), Article VIII
stand independently of any other provision, least of all one found in Article VII. It
further ignored that the two provisions had no irreconcilable conflict, regardless of
Section 15, Article VII being couched in the negative. As judges, we are not to
unduly interpret, and should not accept an interpretation that defeats the intent of
the framers.[73]
Consequently, prohibiting the incumbent President from appointing a Chief Justice
on the premise that Section 15, Article VII extends to appointments in the Judiciary
cannot be sustained. A misinterpretation like Valenzuela should not be allowed to
last after its false premises have been exposed.[74] It will not do to merely
distinguish Valenzuela from these cases, for the result to be reached herein is
entirely
incompatible
with
what Valenzuela decreed. Consequently,
Valenzuela nowdeserves to be quickly sent to the dustbin of the unworthy and
forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII
all other appointments in the Judiciary.

does

not

apply

as

well

to

There is no question that one of the reasons underlying the adoption of


Section 15 as part of Article VII was to eliminate midnight appointments from

being made by an outgoing Chief Executive in the mold of the appointments dealt
with in the leading case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so
observed, stating that:
xxx it appears that Section 15, Article VII is directed against two types of
appointments: (1) those made for buying votes and (2) those made for partisan
considerations. The first refers to those appointments made within the two months
preceding a Presidential election and are similar to those which are declared
election offenses in the Omnibus Election Code, viz.:
xxx
The second type of appointments prohibited by Section 15, Article VII
consists of the so-called midnight appointments. In Aytona v. Castillo, it was held
that after the proclamation of Diosdado Macapagal as duly elected President,
President Carlos P. Garcia, who was defeated in his bid for reelection, became no
more than a caretaker administrator whose duty was to prepare for the orderly
transfer of authority to the incoming President. Said the Court:
The filling up of vacancies in important positions, if few, and so spaced
as to afford some assurance of deliberate action and careful consideration
of the need for the appointment and appointee's qualifications may
undoubtedly be permitted. But the issuance of 350 appointments in one
night and the planned induction of almost all of them in a few hours before
the inauguration of the new President may, with some reason, be regarded
by the latter as an abuse of Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all vacant positions irrespective of
fitness and other conditions, and thereby to deprive the new
administration of an opportunity to make the corresponding
appointments.

As indicated, the Court recognized that there may well be appointments to


important positions which have to be made even after the proclamation of the new
President. Such appointments, so long as they are few and so spaced as to
afford some assurance of deliberate action and careful consideration of the
need for the appointment and the appointees qualifications, can be made by
the outgoing President. Accordingly, several appointments made by President
Garcia, which were shown to have been well considered, were upheld.
Section 15, Article VII has a broader scope than the Aytona ruling. It
may not unreasonably be deemed to contemplate not only midnight
appointments those made obviously for partisan reasons as shown by their
number and the time of their making but also appointments presumed made
for the purpose of influencing the outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article VII
allowing appointments to be made during the period of the ban therein provided is
much narrower than that recognized in Aytona. The exception allows only the
making of temporary appointments to executive positions when continued
vacancies will prejudice public service or endanger public safety. Obviously, the
article greatly restricts the appointing power of the President during the period of
the ban.
Considering the respective reasons for the time frames for filling vacancies
in the courts and the restriction on the President's power of appointment, it is this
Courts view that, as a general proposition, in case of conflict, the former should
yield to the latter. Surely, the prevention of vote-buying and similar evils
outweighs the need for avoiding delays in filling up of court vacancies or the
disposition of some cases. Temporary vacancies can abide the period of the ban
which, incidentally and as earlier pointed out, comes to exist only once in every
six years. Moreover, those occurring in the lower courts can be filled temporarily
by designation. But prohibited appointments are long-lasting and permanent in
their effects. They may, as earlier pointed out, in fact influence the results of
elections and, for that reason, their making is considered an election offense.[76]

Given the background and rationale for the prohibition in Section 15, Article
VII, we have no doubt that the Constitutional Commission confined the prohibition
to appointments made in the Executive Department. The framers did not need to
extend the prohibition to appointments in the Judiciary, because their establishment
of the JBC and their subjecting the nomination and screening of candidates for
judicial positions to the unhurried and deliberate prior process of the JBC ensured
that there would no longer be midnight appointments to the Judiciary. If midnight
appointments in the mold of Aytona were made in haste and with irregularities, or
made by an outgoing Chief Executive in the last days of his administration out of a
desire to subvert the policies of the incoming President or for partisanship, [77] the
appointments to the Judiciary made after the establishment of the JBC would not
be suffering from such defects because of the JBCs prior processing of candidates.
Indeed, it is axiomatic in statutory construction that the ascertainment of the
purpose of the enactment is a step in the process of ascertaining the intent or
meaning of the enactment, because the reason for the enactment must necessarily
shed considerable light on the law of the statute, i.e., the intent; hence, the
enactment should be construed with reference to its intended scope and purpose,
and the court should seek to carry out this purpose rather than to defeat it.[78]

Also, the intervention of the JBC eliminates the danger that appointments to
the Judiciary can be made for the purpose of buying votes in a coming presidential
election, or of satisfying partisan considerations. The experience from the time of
the establishment of the JBC shows that even candidates for judicial positions at
any level backed by people influential with the President could not always be
assured of being recommended for the consideration of the President, because they
first had to undergo the vetting of the JBC and pass muster there. Indeed, the
creation of the JBC was precisely intended to de-politicize the Judiciary by doing
away with the intervention of the Commission on Appointments. This insulating
process was absent from the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to
appointments in the Judiciary was confirmed by then Senior Associate Justice
Regalado to the JBC itself when it met on March 9, 1998 to discuss the question
raised by some sectors about the constitutionality of xxx appointments to the Court
of Appeals in light of the forthcoming presidential elections. He assured that on the
basis of the (Constitutional) Commissions records, the election ban had no
application to appointments to the Court of Appeals. [79] This confirmation
was accepted by the JBC, which then submitted to the President for consideration
the nominations for the eight vacancies in the Court of Appeals.[80]
The fault of Valenzuela was that it accorded no weight and due consideration
to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on
interpretation to determine the intent of the framers rather than on the deliberations
of the Constitutional Commission. Much of the unfounded doubt about the
Presidents power to appoint during the period of prohibition in Section 15, Article
VII could have been dispelled since its promulgation on November 9, 1998,
hadValenzuela properly acknowledged and relied on the confirmation of a
distinguished member of the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15,
and Section 16) concern the appointing powers of the President.
Section 14 speaks of the power of the succeeding President to revoke
appointments made by an Acting President,[81] and evidently refers only to
appointments in the Executive Department. It has no application to appointments

in the Judiciary, because temporary or acting appointments can only undermine the
independence of the Judiciary due to their being revocable at will. [82] The letter and
spirit of the Constitution safeguard that independence. Also, there is no law in the
books that authorizes the revocation of appointments in the Judiciary. Prior to their
mandatory retirement or resignation, judges of the first and second level courts and
the Justices of the third level courts may only be removed for cause, but the
Members of the Supreme Court may be removed only by impeachment.
Section 16 covers only the presidential appointments that require
confirmation by the Commission on Appointments. Thereby, the Constitutional
Commission restored the requirement of confirmation by the Commission on
Appointments after the requirement was removed from the 1973 Constitution. Yet,
because of Section 9 of Article VIII, the restored requirement did not include
appointments to the Judiciary.[83]
Section 14, Section 15, and Section 16 are obviously of the same character,
in that they affect the power of the President to appoint. The fact that Section 14
and Section 16 refer only to appointments within the Executive Department
renders conclusive that Section 15 also applies only to the Executive Department.
This conclusion is consistent with the rule that every part of the statute must be
interpreted with reference to the context, i.e. that every part must be considered
together with the other parts, and kept subservient to the general intent of the
whole enactment.[84] It is absurd to assume that the framers deliberately situated
Section 15between Section 14 and Section 16, if they intended Section 15 to
cover all kinds of presidential appointments. If that was their intention in respect of
appointments to the Judiciary, the framers, if only to be clear, would have easily
and surely inserted a similar prohibition in Article VIII, most likely within Section
4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to
appointments to the Judiciary further undermines the intent of the Constitution of
ensuring the independence of the Judicial Department from the Executive and
Legislative Departments. Such a holding will tie the Judiciary and the Supreme
Court to the fortunes or misfortunes of political leaders vying for the Presidency in
a presidential election. Consequently, the wisdom of having the new President,
instead of the current incumbent President, appoint the next Chief Justice is itself

suspect, and cannot ensure judicial independence, because the appointee can also
become beholden to the appointing authority. In contrast, the appointment by the
incumbent President does not run the same risk of compromising judicial
independence, precisely because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no need
for the incumbent President to appoint during the prohibition period the successor
of Chief Justice Puno within the context of Section 4 (1), Article VIII, because
anyway there will still be about 45 days of the 90 days mandated in Section 4(1),
Article VIII remaining.
The argument is flawed, because it is focused only on the coming vacancy
occurring from Chief Justice Punos retirement by May 17, 2010. It ignores the
need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.
The argument also rests on the fallacious assumption that there will still be
time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is
easily demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the
second Monday of May, letting the elections fall on May 8, at the earliest, or May
14, at the latest. If the regular presidential elections are held on May 8, the period
of the prohibition is 115 days. If such elections are held on May 14, the period of
the prohibition is 109 days. Either period of the prohibition is longer than the full
mandatory 90-day period to fill the vacancy in the Supreme Court. The result is
that there are at least 19 occasions (i.e., the difference between the shortest
possible period of the ban of 109 days and the 90-day mandatory period for
appointments) in which the outgoing President would be in no position to comply
with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to
assume that the framers of the Constitution could not have intended such an
absurdity. In fact, in their deliberations on the mandatory period for the
appointment of Supreme Court Justices under Section 4 (1), Article VIII, the
framers neither discussed, nor mentioned, nor referred to the ban against midnight
appointments under Section 15, Article VII, or its effects on the 90-day period,
or vice versa. They did not need to, because they never intended Section 15, Article
VII to apply to a vacancy in the Supreme Court, or in any of the lower courts.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt


on whether a JBC list is necessary at all for the President any President to appoint a
Chief Justice if the appointee is to come from the ranks of the sitting justices of the
Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar
Council for any vacancy. Such appointments need no confirmation.
xxx

The provision clearly refers to an appointee coming into the Supreme Court from
the outside, that is, a non-member of the Court aspiring to become one. It speaks of
candidates for the Supreme Court, not of those who are already members or sitting
justices of the Court, all of whom have previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices of the
Court as Chief Justice?
The question is not squarely before us at the moment, but it should lend
itself to a deeper analysis if and when circumstances permit. It should be a good
issue for the proposed Constitutional Convention to consider in the light of Senate
President Juan Ponce Enriles statement that the President can appoint the Chief
Justice from among the sitting justices of the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint the
successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still
address the situation of having the next President appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. In case of a vacancy in the


office of Chief Justice of the Supreme Court or of his inability to perform the
duties and powers of his office, they shall devolve upon the Associate Justice who
is first in precedence, until such disability is removed, or another Chief Justice is
appointed and duly qualified. This provision shall apply to every Associate Justice
who succeeds to the office of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in
the office of the Chief Justice, or in the event that the Chief Justice is unable to
perform his duties and powers. In either of such circumstances, the duties and
powers of the office of the Chief Justice shall devolve upon the Associate Justice
who is first in precedence until a new Chief Justice is appointed or until the
disability is removed.
Notwithstanding that there is no pressing need to dwell on this peripheral matter
after the Court has hereby resolved the question of consequence, we do not find it
amiss to confront the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is
composed of a Chief Justice and 14 Associate Justices, who all shall be appointed
by the President from a list of at least three nominees prepared by the JBC for
every vacancy, which appointments require no confirmation by the Commission on
Appointments. With reference to the Chief Justice, he or she is appointed by the
President as Chief Justice, and the appointment is never in an acting capacity. The
express reference to a Chief Justice abhors the idea that the framers contemplated
an Acting Chief Justice to head the membership of the Supreme Court. Otherwise,
they would have simply written so in the Constitution. Consequently, to rely on
Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to
appoint the next Chief Justice soonest is to defy the plain intent of the Constitution.
For sure, the framers intended the position of Chief Justice to be permanent,
not one to be occupied in an acting or temporary capacity. In relation to the scheme
of things under the present Constitution, Section 12 of the Judiciary Act of 1948

only responds to a rare situation in which the new Chief Justice is not yet
appointed, or in which the incumbent Chief Justice is unable to perform the duties
and powers of the office. It ought to be remembered, however, that it was enacted
because the Chief Justice appointed under the 1935 Constitution was subject to the
confirmation of the Commission on Appointments, and the confirmation process
might take longer than expected.
The appointment of the next Chief Justice by the incumbent President is
preferable to having the Associate Justice who is first in precedence take over.
Under the Constitution, the heads of the Legislative and Executive Departments
are popularly elected, and whoever are elected and proclaimed at once become the
leaders of their respective Departments. However, the lack of any appointed
occupant of the office of Chief Justice harms the independence of the Judiciary,
because the Chief Justice is the head of the entire Judiciary. The Chief Justice
performs functions absolutely significant to the life of the nation. With the entire
Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the
Chairman of the Tribunal. There being no obstacle to the appointment of the next
Chief Justice, aside from its being mandatory for the incumbent President to make
within the 90-day period from May 17, 2010, there is no justification to insist that
the successor of Chief Justice Puno be appointed by the next President.
Historically, under the present Constitution, there has been no wide gap
between the retirement and the resignation of an incumbent Chief Justice, on one
hand, and the appointment to and assumption of office of his successor, on the
other hand. As summarized in the comment of the OSG, the chronology of
succession is as follows:
1. When Chief Justice Claudio Teehankee retired on April 18, 1988,
Chief Justice Pedro Yap was appointed on the same day;
2. When Chief Justice Yap retired on July 1, 1988, Chief Justice
Marcelo Fernan was appointed on the same day;
3. When Chief Justice Fernan resigned on December 7, 1991, Chief
Justice Andres Narvasa was appointed the following
day, December 8, 1991;

4. When Chief Justice Narvasa retired on November 29, 1998, Chief


Justice Hilario Davide, Jr. was sworn into office the following
early morning ofNovember 30, 1998;
5. When Chief Justice Davide retired on December 19, 2005, Chief
Justice Artemio Panganiban was appointed the next day, December
20, 2005; and
6. When Chief Justice Panganiban retired on December 6, 2006,
Chief Justice Reynato S. Puno took his oath as Chief Justice
at midnight of December 6, 2006.[85]
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?
Mandamus shall issue when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act that the law specifically enjoins as a
duty resulting from an office, trust, or station. [86] It is proper when the act against
which it is directed is one addressed to the discretion of the tribunal or
officer.Mandamus is not available to direct the exercise of a judgment or discretion
in a particular way.[87]
For mandamus to lie, the following requisites must be complied with: (a) the
plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the
defendant to perform the act, because it is mandated by law; (c) the defendant
unlawfully neglects the performance of the duty enjoined by law; (d) the act to be
performed is ministerial, not discretionary; and (e) there is no appeal or any other
plain, speedy and adequate remedy in the ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of
at least three nominees to the President for every vacancy in the Judiciary:
Section 8. xxx

(5) The Council shall have the principal function of recommending


appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy. Such
appointments need no confirmation.
For the lower courts, the President shall issue the appointments within
ninety days from the submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the President to
fill the vacancy in the Supreme Court within 90 days from the occurrence of the
vacancy, and within 90 days from the submission of the list, in the case of the
lower courts. The 90-day period is directed at the President, not at the JBC. Thus,
the JBC should start the process of selecting the candidates to fill the vacancy in
the Supreme Court before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the
President the list of nominees to fill a vacancy in the Supreme Court in order to
enable the President to appoint one of them within the 90-day period from the
occurrence of the vacancy. The JBC has no discretion to submit the list to the
President after the vacancy occurs, because that shortens the 90-day period
allowed by the Constitution for the President to make the appointment. For the
JBC to do so will be unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the ample time granted
under the Constitution to reflect on the qualifications of the nominees named in the
list of the JBC before making the appointment.
The duty of the JBC to submit a list of nominees before the start of the
Presidents mandatory 90-day period to appoint is ministerial, but its selection of
the candidates whose names will be in the list to be submitted to the President lies
within the discretion of the JBC. The object of the petitions for mandamus herein
should only refer to the duty to submit to the President the list of nominees for
every vacancy in the Judiciary, because in order to constitute unlawful neglect of
duty, there must be an unjustified delay in performing that duty.
[88]
For mandamus to lie against the JBC, therefore, there should be an unexplained

delay on its part in recommending nominees to the Judiciary, that is, in submitting
the list to the President.
The distinction between a ministerial act and a discretionary one has been
delineated in the following manner:
The distinction between a ministerial and discretionary act is well delineated.
A purely ministerial act or duty is one which an officer or tribunal performs
in a given state of facts, in a prescribed manner, in obedience to the mandate
of a legal authority, without regard to or the exercise of his own judgment
upon the propriety or impropriety of the act done. If the law imposes a duty
upon a public officer and gives him the right to decide how or when the duty
shall be performed, such duty is discretionary and not ministerial. The duty is
ministerial only when the discharge of the same requires neither the exercise
of official discretion or judgment.[89]

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and
to issue a writ of mandamus against the JBC. The actions for that purpose are
premature, because it is clear that the JBC still has until May 17, 2010, at the
latest, within which to submit the list of nominees to the President to fill the
vacancy created by the compulsory retirement of Chief Justice Puno.

IV
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion is ineluctable that only
the President can appoint the Chief Justice. Hence, Sorianos petition for
prohibition in G.R. No. 191032, which proposes to prevent the JBC from
intervening in the process of nominating the successor of Chief Justice Puno, lacks
merit.
On the other hand, the petition for prohibition in G.R. No. 191342 is
similarly devoid of merit. The challenge mounted against the composition of the
JBC based on the allegedly unconstitutional allocation of a vote each to the ex
officio members from the Senate and the House of Representatives, thereby

prejudicing the chances of some candidates for nomination by raising the minimum
number of votes required in accordance with the rules of the JBC, is not based on
the petitioners actual interest, because they have not alleged in their petition that
they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the
petitioners lacklocus standi on that issue.
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002
and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being
premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No.
191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the
Judicial and Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill
the vacancy to be created by the compulsory retirement of Chief
Justice Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief
Justice;
(c) To submit to the incumbent President the short list of nominees for
the position of Chief Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill
other vacancies in the Judiciary and submit to the President the
short list of nominees corresponding thereto in accordance with
this decision.
SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA


Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.


Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO


Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA


Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD


Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ


Associate Justice Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

[1]

Filed on February 9, 2010.


Begun on February 23, 2010.
[3]
Initiated on February 10, 2010.
[4]
Commenced on February 11, 2010.
[5]
Dated February 15, 2010.
[6]
Filed on March 8, 2010.
[7]
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
[8]
Petition in G.R. No. 191002, pp. 3-4.
[9]
Id., p. 5.
[10]
Petition in G.R. No. 191032, pp. 4-8.
[11]
Petition in G.R. No. 191057, pp. 1-2.
[12]
Id., p. 11.
[13]
Petition in G.R. No. 191149.
[14]
Petition in G.R. No. 191342.
[15]
http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf
[16]
http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan22%20%2710.pdf
[17]
Comment of the JBC, p. 3.
[18]
Id.
[19]
Id., pp. 4-5.
[20]
Id., p. 5.
[21]
Id.
[22]
Id., p. 6.
[23]
Petition in A.M. No. 10-2-5-SC, pp. 5-6.
[24]
Comment of the JBC, p. 6.
[25]
Id., p. 7; bold emphasis is in the original text.
[26]
Comment of the OSG, pp. 13-14.
[27]
Id., p. 14.
[28]
Id., p. 15.
[29]
Id., pp. 20-24.
[30]
Id., pp. 25-27.
[31]
Id., pp. 29-30.
[32]
Id.
[33]
Id., pp. 32-33.
[34]
Id., pp. 34-35.
[35]
Id.
[36]
Id., pp. 35-36. The OSG posits:
National interest compels the President to make such appointment for it is particularly during this
crucial period when national leaders are seeking fresh mandates from the people that the Supreme Court,
more than at any other time, represents stability. Hence, a full court is ideal to ensure not only due
deliberation on and careful consideration of issues but also expeditious disposition of cases.
Indeed, such function becomes especially significant in view of the fact that this is the first time that the
whole country will experience automated elections.
[37]
Id., pp. 36-37. The OSG stresses:
The possible fallouts or serious aftermath of allowing a vacuum in the position of the Chief Justice may
be greater and riskier than the consequences or repercussions of inaction. Needless to state, the appointment
[2]

of the Chief Justice of this Honorable Court (sic) is the most important appointment vested by the 1987
Constitution to (sic) the President.
[38]
Id., p. 37.
[39]
Id., p. 38.
[40]
Filed by Atty. Pitero M. Reig.
[41]
Blacks Law Dictionary, 941 (6th Ed. 1991).
[42]
G.R. No. 155001, May 5, 2003, 402 SCRA 612.
[43]
Citing Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562-563, citing Baker v.
Carr, 369 U.S. 186, 7 L. Ed. 633 (1962).
[44]
Citing Kilosbayan, Inc. v. Morato, supra; Bayan v. Zamora, G.R. No. 138570, October 10, 2000; 342 SCRA 449,
478.
[45]
65 Phil. 56.
[46]
G.R. No. 117, November 7, 1945 (Unreported).
[47]
G.R. No. 2947, January 11, 1959 (Unreported).
[48]
77 Phil. 1012 (1947).
[49]
110 Phil. 331 (1960).
[50]
84 Phil. 368 (1949)
[51]
E.g., Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152 (in which the Court ruled
that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are
matters of transcendental importance which clothe the petitioner with locus standi); Bagong Alyansang Makabayan
v. Zamora, G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449 (in whichthe
Court held that given the transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review of
the Visiting Forces Agreement); Lim v. Executive Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739 (in
which the Court, albeit conceding that the petitioners might not file suit in their capacity as taxpayers without a
showing that Balikatan 02-01 involved the exercise of Congress taxing or spending powers, reiterated Bagong
Alyansang Makabayan v. Zamora, declaring that cases of transcendental importance must be settled promptly and
definitely and the standing requirements may be relaxed); and Osmea v. Commission on Elections, G.R. No. 100318,
100308, 100417,100420, July 30, 1991, 199 SCRA 750 (in which the Court held that where serious constitutional
questions were involved, the transcendental importance to the public of the cases demanded that they be settled
promptly and definitely, brushing aside technicalities of procedure).
[52]
L-No. 40004, January 31, 1975, 62 SCRA 275.
[53]
E.g., Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 (in which the Court held that it is sufficient
that the petitioner is a citizen interested in the execution of the law, because the question is one of public duty and
the enforcement of a public right, and the people are the real party-in-interest); Legaspi v. Civil Service
Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530 (in which the Court declared that where an assertion of
a public right is involved, the requirement of personal interest is satisfied by the mere fact that the petitioner is a
citizen and is part of the general public which possesses the right); Kapatiran ng mga Naglilingkod sa Pamahalaan
ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371 (in which the Court disregarded objections to
taxpayers lack of personality to sue in determining the validity of the VAT Law); Albano v. Reyes, G.R. No. 83551,
July 11, 1989, 175 SCRA 264 (in which the Court pronounced that although no expenditure of public funds was
involved in the questioned contract, the petitioner was nonetheless clothed with the legal personality under the
disclosure provision of the Constitution to question it, considering its important role in the economic development of
the country and the magnitude of the financial consideration involved, indicating that public interest was definitely
involved); and Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742,
July 14, 1989, 175 SCRA 343 (in which the Court ruled that it had the discretion to waive the requirement of locus
standi in determining the validity of the implementation of the Comprehensive Agrarian Reform Program, although
the petitioners were not, strictly speaking, covered by the definition of proper party).
[54]
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
[55]
275 Ky 91, 120 SW2d 765 (1938).
[56]
19 Wend. 56 (1837).
[57]
232 NC 48, 59 SE2d 359 (1950).
[58]
Bold emphasis is in the original text.
[59]
Petition in G.R. No. 191032, p. 2.
[60]
Petition in G.R. No. 191057, pp. 3-4; citing the cases of PHILCONSA v. Gimenez, 15 SCRA 479; PHILCONSA v.
Mathay, 18 SCRA 300; PHILCONSA v. Enriquez, 235 SCRA 506; and Lambino v. COMELEC, 505 SCRA 160.

[61]

Petition in G.R. No. 191342, pp. 2-3.


See, for instance, Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81
(where the petitioner questioned the validity of the deployment and utilization of the Marines to assist the PNP in
law enforcement, asserting that IBP was the official organization of Filipino lawyers tasked with the bounden duty
to uphold the rule of law and the Constitution, but the Court held that the IBP had not shown that it was so tasked: In
this case, a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention
of this Court in view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are
under constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by
the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will not go away. It
will stare us in the face again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue
now, rather than later, and went on to resolve the issues because the petitioner advanced constitutional issues that
deserved the attention of the Court in view of their seriousness, novelty, and weight as precedents).
[63]
Supra, note 42, p. 645.
[64]
Id.
[65]
See Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail Reoganization Act Cases, 419 U.S. 102, 138-148
(1974).
[66]
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 912, October 12, 1998.
[67]
Supra, note 6, p. 426-427, stating:
Considering the respective reasons for the time frames for filling vacancies in the courts and the
restriction on the Presidents power of appointment, it is this Courts view that, as a general proposition, in case
of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils
outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases.
Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to
exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier
pointed out, in fact influence the results of elections and, for that reason, their making is considered an
election offense.
To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should prevail
over Section 15 of Article VII, because they may be considered later expressions of the people when they
adoptedthe Constitution, it suffices to point out that the Constitution must be construed in its entirety as one,
single, instrument.
To be sure, instances may be conceived of the imperative need for an appointment, during the period of
the ban, not only in the executive but also in the Supreme Court. This may be the case should the membership
of the court be so reduced that it will have no quorum or should the voting on a particularly important
question requiring expeditious resolution be evenly divided. Such a case, however, is covered by neither
Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII.
[68]
Id., pp. 422-423.
[69]
Id., p. 423.
[70]
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., pp. 632-633.
[71]
Dizon v. Encarnacion, G.R. No. L-18615, December 24, 1963, 9 SCRA 714.
[72]
Crawford, Earl. T., The Construction of Statutes, Thomas Law Book Company, St. Louis, Missouri, 262-264
(1940).
[73]
Garcia v. Social Security Commission Legal and Collection, G.R. No. 170735, December 17, 2007, 540 SCRA
456, 472; citing Escosura v. San Miguel Brewery, Inc., 4 SCRA 285, (1962).
[74]
According to Arizona v. Rumsey, 467 U. S. 203, 212 (1984): Although adherence to precedent is not rigidly
required in constitutional cases, any departure from the doctrine of stare decisis demands special justification. The
special justification for the reversal of Valenzuela lies in its intrinsic unsoundness.
[75]
No. L-19313, January 19, 1962, 4 SCRA 1.
[76]
Supra, note 6, pp. 424-426; bold underscoring supplied for emphasis.
[77]
Aytona v. Castillo, supra, note 74, pp. 8-10 (N.B. - In the time material to Aytona, there were judges of the Court
of First Instance who were appointed to districts that had no vacancies, because the incumbents had not qualified for
other districts to which they had been supposedly transferred or promoted; at any rate, the appointments still
required confirmation by the Commission on Appointments).
[78]
Crawford, op. cit., supra, note 72, pp. 248-249.
[79]
Supra, note 6, p. 413.
[80]
Id.
[62]

[81]

Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected
President within ninety days from his assumption or reassumption of office.
[82]
Cruz, I., Philippine Political Law, 253 (2002); also Rilloraza v. Vargas, 80 Phil. 297 (1948).
[83]
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 908, which indicates that in his
sponsorship speech delivered on October 12, 1986 on the floor of the Constitutional Commission, Commissioner
Teofisto Guingona explained that [a]ppointments to the judiciary shall not be subject to confirmation by the
Commission on Appointments.
[84]
Rodriguez, Statutory Construction, 171 (1999).
[85]
Comment of the OSG, p. 37.
[86]
Section 3, Rule 65, 1997 Rules of Civil Procedure.
[87]
JG Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, November 20, 2000, 345 SCRA 143.
[88]
Nery v. Gamolo, A.M. No. P-01-1508, February 7, 2003, 397 SCRA 110, citing Musni v. Morales, 315 SCRA 85,
86 (1999).
[89]
Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006, 490 SCRA 273.

. No. 146933, June 8, 2006, 490 SCRA 273.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 139554

July 21, 2006

ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and
FREDDIE GARCIA, petitioners,
vs.
BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE
POTENCIANO, and DOREEN FERNANDEZ, respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 139565

July 21, 2006

BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE


POTENCIANO, and DOREEN FERNANDEZ, petitioners,
vs.
ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and
FREDDIE GARCIA, respondents.
DECISION
CARPIO, J.:
Presidential Decree No. 15 (PD 15) created the Cultural Center of the Philippines (CCP) for the
primary purpose of propagating arts and culture in the Philippines. 1 The CCP is to awaken the
consciousness of the Filipino people to their artistic and cultural heritage and encourage them to
preserve, promote, enhance, and develop such heritage. 2
PD 15 created a Board of Trustees ("Board") to govern the CCP. PD 15 mandates the Board to draw
up programs and projects that (1) cultivate and enhance public interest in, and appreciation of,
Philippine art; (2) discover and develop talents connected with Philippine cultural pursuits; (3) create

opportunities for individual and national self-expression in cultural affairs; and (4) encourage the
organization of cultural groups and the staging of cultural exhibitions. 3 The Board administers and
holds in trust real and personal properties of the CCP for the benefit of the Filipino people. 4 The
Board invests income derived from its projects and operations in a Cultural Development Fund set
up to attain the CCP's objectives.5
The consolidated petitions in the case at bar stem from a quo warranto proceeding involving two
sets of CCP Boards. The controversy revolves on who between the contending groups, both
claiming as the rightful trustees of the CCP Board, has the legal right to hold office. The resolution of
the issue boils down to the constitutionality of the provision of PD 15 on the manner of filling
vacancies in the Board.
The Case
Before us are two consolidated Petitions for Review on Certiorari under Rule 45 of the 1997 Rules of
Civil Procedure. In G.R. No. 139554, petitioners Armita B. Rufino ("Rufino"), Zenaida R. Tantoco
("Tantoco"),6Lorenzo Calma ("Calma"), Rafael Simpao, Jr. ("Simpao"), and Freddie Garcia ("Garcia"),
represented by the Solicitor General and collectively referred to as the Rufino group, seek to set
aside the Decision7 dated 14 May 1999 of the Court of Appeals in CA-G.R. SP No. 50272 as well as
the Resolution dated 3 August 1999 denying the motion for reconsideration. The dispositive portion
of the appellate court's decision reads:
WHEREFORE, judgment is hereby rendered
1) Declaring petitioners [the Endriga group] to have a clear right to their respective offices to
which they were elected by the CCP Board up to the expiration of their 4-year term,
2) Ousting respondents [the Rufino group], except respondent Zenaida R. Tantoco, from their
respective offices and excluding them therefrom, and
3) Dismissing the case against respondent Zenaida R. Tantoco.
SO ORDERED.8
In G.R. No. 139565, petitioners Baltazar N. Endriga ("Endriga"), Ma. Paz D. Lagdameo
("Lagdameo"), Patricia C. Sison ("Sison"), Irma Ponce-Enrile Potenciano ("Potenciano"), and Doreen
Fernandez ("Fernandez"), collectively referred to as the Endriga group, assail the Resolution dated 3
August 1999 issued by the Court of Appeals in the same case insofar as it denied their Motion for
Immediate Execution of the Decision dated 14 May 1999.
The Antecedents
On 25 June 1966, then President Ferdinand E. Marcos issued Executive Order No. 30 (EO 30)
creating the Cultural Center of the Philippines as a trust governed by a Board of Trustees of seven
members to preserve and promote Philippine culture. The original founding trustees, who were all
appointed by President Marcos, were Imelda Romualdez-Marcos, Juan Ponce-Enrile, Andres
Soriano, Jr., Antonio Madrigal, Father Horacio Dela Costa, S.J., I.P. Soliongco, and Ernesto Rufino.
On 5 October 1972, or soon after the declaration of Martial Law, President Marcos issued PD
15,9 the CCP's charter, which converted the CCP under EO 30 into a non-municipal public
corporation free from the "pressure or influence of politics."10 PD 15 increased the members of CCP's

Board from seven to nine trustees. Later, Executive Order No. 1058, issued on 10 October 1985,
increased further the trustees to 11.
After the People Power Revolution in 1986, then President Corazon C. Aquino asked for the
courtesy resignations of the then incumbent CCP trustees and appointed new trustees to the Board.
Eventually, during the term of President Fidel V. Ramos, the CCP Board included Endriga,
Lagdameo, Sison, Potenciano, Fernandez, Lenora A. Cabili ("Cabili"), and Manuel T. Maosa
("Maosa").
On 22 December 1998, then President Joseph E. Estrada appointed seven new trustees to the CCP
Board for a term of four years to replace the Endriga group as well as two other incumbent trustees.
The seven new trustees were:
1. Armita B. Rufino - President, vice Baltazar N. Endriga
2. Zenaida R. Tantoco - Member, vice Doreen Fernandez
3. Federico Pascual - Member, vice Lenora A. Cabili
4. Rafael Buenaventura - Member, vice Manuel T. Maosa
5. Lorenzo Calma - Member, vice Ma. Paz D. Lagdameo
6. Rafael Simpao, Jr. - Member, vice Patricia C. Sison
7. Freddie Garcia - Member, vice Irma Ponce-Enrile Potenciano
Except for Tantoco, the Rufino group took their respective oaths of office and assumed the
performance of their duties in early January 1999.
On 6 January 1999, the Endriga group filed a petition for quo warranto before this Court questioning
President Estrada's appointment of seven new members to the CCP Board. The Endriga group
alleged that under Section 6(b) of PD 15, vacancies in the CCP Board "shall be filled by election by a
vote of a majority of the trustees held at the next regular meeting x x x." In case "only one trustee
survive[s], the vacancies shall be filled by the surviving trustee acting in consultation with the ranking
officers of the [CCP]." The Endriga group claimed that it is only when the CCP Board is entirely
vacant may the President of the Philippines fill such vacancies, acting in consultation with the
ranking officers of the CCP.
The Endriga group asserted that when former President Estrada appointed the Rufino group, only
one seat was vacant due to the expiration of Maosa's term. The CCP Board then had 10 incumbent
trustees, namely, Endriga, Lagdameo, Sison, Potenciano, Fernandez, together with Cabili, Father
Bernardo P. Perez ("Fr. Perez"), Eduardo De los Angeles ("De los Angeles"), Ma. Cecilia Lazaro
("Lazaro"), and Gloria M. Angara ("Angara"). President Estrada retained Fr. Perez, De los Angeles,
Lazaro, and Angara as trustees.
Endriga's term was to expire on 26 July 1999, while the terms of Lagdameo, Sison, Potenciano, and
Fernandez were to expire on 6 February 1999. The Endriga group maintained that under the CCP
Charter, the trustees' fixed four-year term could only be terminated "by reason of resignation,
incapacity, death, or other cause." Presidential action was neither necessary nor justified since the

CCP Board then still had 10 incumbent trustees who had the statutory power to fill by election any
vacancy in the Board.
The Endriga group refused to accept that the CCP was under the supervision and control of the
President. The Endriga group cited Section 3 of PD 15, which states that the CCP "shall enjoy
autonomy of policy and operation x x x."
The Court referred the Endriga group's petition to the Court of Appeals "for appropriate action" in
observance of the hierarchy of courts.
On 14 May 1999, the Court of Appeals rendered the Decision under review granting the quo
warranto petition. The Court of Appeals declared the Endriga group lawfully entitled to hold office as
CCP trustees. On the other hand, the appellate court's Decision ousted the Rufino group from the
CCP Board.
In their motion for reconsideration, the Rufino group asserted that the law could only delegate to the
CCP Board the power to appoint officers lower in rank than the trustees of the Board. The law may
not validly confer on the CCP trustees the authority to appoint or elect their fellow trustees, for the
latter would be officers of equal rank and not of lower rank. Section 6(b) of PD 15 authorizing the
CCP trustees to elect their fellow trustees should be declared unconstitutional being repugnant to
Section 16, Article VII of the 1987 Constitution allowing the appointment only of "officers lower in
rank" than the appointing power.
On 3 August 1999, the Court of Appeals denied the Rufino group's motion for reconsideration. The
Court of Appeals also denied the Endriga group's motion for immediate execution of the 14 May
1999 Decision.
Hence, the instant consolidated petitions.
Meanwhile, Angara filed a Petition-in-Intervention before this Court alleging that although she was
not named as a respondent in the quo warranto petition, she has an interest in the case as the then
incumbent CCP Board Chairperson. Angara adopted the same position and offered the same
arguments as the Rufino group.
The Ruling of the Court of Appeals
The Court of Appeals held that Section 6(b) of PD 15 providing for the manner of filling vacancies in
the CCP Board is clear, plain, and free from ambiguity. Section 6(b) of PD 15 mandates the
remaining trustees to fill by election vacancies in the CCP Board. Only when the Board is entirely
vacant, which is not the situation in the present case, may the President exercise his power to
appoint.
The Court of Appeals stated that the legislative history of PD 15 shows a clear intent "to insulate the
position of trustee from the pressure or influence of politics by abandoning appointment by the
President of the Philippines as the mode of filling" 11 vacancies in the CCP Board. The Court of
Appeals held that until Section 6(b) of PD 15 is declared unconstitutional in a proper case, it remains
the law. The Court of Appeals also clarified that PD 15 vests on the CCP Chairperson the power to
appoint all officers, staff, and personnel of the CCP, subject to confirmation by the Board.
The Court of Appeals denied the Rufino group's motion for reconsideration for failure to raise new
issues except the argument that Section 6(b) of PD 15 is unconstitutional. The Court of Appeals

declined to rule on the constitutionality of Section 6(b) of PD 15 since the Rufino group raised this
issue for the first time in the motion for reconsideration. The Court of Appeals also held, "Nor may
the President's constitutional and/or statutory power of supervision and control over government
corporations restrict or modify the application of the CCP Charter."12
The Court of Appeals, moreover, denied the Endriga group's motion for immediate execution of
judgment on the ground that the reasons submitted to justify execution pending appeal were not
persuasive.
The Issues
In G.R. No. 139554, the Rufino group, through the Solicitor General, contends that the Court of
Appeals committed reversible error:
I
x x x in holding that it was "not actuated" to pass upon the constitutionality of Section 6(b) of
PD 15 inasmuch as the issue was raised for the first time in [Rufino et al.'s] motion for
reconsideration;
II
x x x in not holding that Section 6(b) of PD 15 is unconstitutional considering that:
A. x x x [it] is an invalid delegation of the President's appointing power under the
Constitution;
B. x x x [it] effectively deprives the President of his constitutional power of control and
supervision over the CCP;
III
x x x in declaring the provisions of PD 15 as clear and complete and in failing to apply the
executive/administrative construction x x x which has been consistently recognized and
accepted since 1972;
IV
x x x in finding that [Endriga et al.] have a clear legal right to be the incumbent trustees and
officers of the CCP considering that:
A. Endriga et al. are estopped from instituting the quo warranto action since they recognized
and benefited from the administrative construction regarding the filling of vacancies in the
CCP Board of Trustees x x x;
B. x x x [Endriga et al.'s] terms did not legally commence as [they] were not validly elected
under PD 15;
C. assuming that [Endriga et al.] were validly elected, they lost their right to retain their
offices because their terms as trustees expired on 31 December 1998;

D. [Endriga et al.] assumed positions in conflict x x x with their offices in the CCP and were
thus not entitled to retain the same;
V
x x x in not dismissing the quo warranto petition for being moot x x x;
VI
x x x in holding that [Rufino et al.'s] prayer [that the] disputed offices [be declared] entirely as
vacant is bereft of basis and amounts to "an admission of their lack of right to the office they
claim."13
In G.R. No. 139565, the Endriga group raises the following issue:
whether a writ of quo warranto involving a public office should be declared a self-executing
judgment and deemed immediately executory under Rule 39, Section 4 of the Rules of
Court.14
The Court's Ruling
The petition in G.R. No. 139554 has merit.
The battle for CCP's leadership between the Rufino and Endriga groups dealt a blow to the country's
artistic and cultural activities. The highly publicized leadership row over the CCP created discord
among management, artists, scholars, employees, and even the public because of the public
interest at stake.
Subsequently, the assumption to office of a new President in 2001 seemingly restored normalcy to
the CCP leadership. After then Vice-President Gloria Macapagal-Arroyo assumed the Presidency on
20 January 2001, the Rufino group tendered their respective resignations on 24-29 January 2001 as
trustees of the CCP Board. On 12 July 2001, President Macapagal-Arroyo appointed 11 trustees to
the CCP Board with the corresponding positions set opposite their names:
1. Baltazar N. Endriga - Chairman
2. Nestor O. Jardin - President
3. Ma. Paz D. Lagdameo - Member
4. Teresita O. Luz - Member
5. Irma P.E. Potenciano - Member
6. Eduardo D. De los Angeles - Member
7. Patricia C. Sison - Member
8. Benjamin H. Cervantes - Member

9. Sonia M. Roco - Member


10. Ruperto S. Nicdao, Jr. - Member
11. Lina F. Litton - Member
In its special meeting on 13 July 2001, the CCP Board elected these 11 newly-appointed trustees to
the same positions and as trustees of the CCP Board. In the same meeting, the Board also elected
the Chairman and President.
On 21 December 2001, the Solicitor General submitted to this Court a manifestation stating that the
"election of the trustees was made without prejudice to the resolution of the constitutional issues
before this Honorable Court in G.R. Nos. 139554 and 139565, x x x."15
The Issue of Mootness
We first consider the Rufino group's contention that the Endriga group's quo warranto suit should
have been dismissed for being moot. The Rufino group argued that when the Endriga group's terms
subsequently expired, there was no more actual controversy for the Court to decide.
For the Court to exercise its power of adjudication, there must be an actual case or controversy
one that involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution.16 The case must not be moot or based on extra-legal or other similar considerations not
cognizable by courts of justice.17 A case becomes moot when its purpose has become stale. 18
The purpose of the quo warranto petition was to oust the Rufino group from the CCP Board and to
declare the Endriga group as the rightful trustees of the CCP Board. It may appear that supervening
events have rendered this case moot with the resignation of the Rufino group as well as the
expiration of the terms of the Endriga group based on their appointments by then President Ramos.
A "new" set of CCP trustees had been appointed by President Macapagal-Arroyo and
subsequently elected by the CCP Board.
However, there are times when the controversy is of such character that to prevent its recurrence,
and to assure respect for constitutional limitations, this Court must pass on the merits of a case. This
is one such case.
The issues raised here are no longer just determinative of the respective rights of the contending
parties. The issues pertaining to circumstances personal to the Endriga group may have become
stale. These issues are (1) whether the Endriga group is estopped from bringing the quo
warranto for they themselves were appointed by the incumbent President; (2) whether they were
validly elected by the remaining CCP trustees; (3) whether their terms expired on 31 December 1998
as specified in their appointment papers; and (4) whether they are entitled to immediate execution of
judgment.
However, the constitutional question that gave rise to these issues will continue to spawn the same
controversy in the future, unless the threshold constitutional question is resolved the validity of
Section 6(b) and (c) of PD 15 on the manner of filling vacancies in the CCP Board. While the issues
may be set aside in the meantime, they are certain to recur every four years, especially when a new
President assumes office, generating the same controversy all over again. Thus, the issues raised
here are capable of repetition, yet evading review if compromises are resorted every time the same
controversy erupts and the constitutionality of Section 6(b) and (c) of PD 15 is not resolved.

The Court cannot refrain from passing upon the constitutionality of Section 6(b) and (c) of PD 15 if
only to prevent a repeat of this regrettable controversy and to protect the CCP from being
periodically wracked by internecine politics. Every President who assumes office naturally wants to
appoint his or her own trustees to the CCP Board. A frontal clash will thus periodically arise between
the President's constitutional power to appoint under Section 16, Article VII of the 1987 Constitution
and the CCP trustees' power to elect their fellow trustees under Section 6(b) and (c) of PD 15.
This Court may, in the exercise of its sound discretion, brush aside procedural barriers 19 and take
cognizance of constitutional issues due to their paramount importance. It is the Court's duty to apply
the 1987 Constitution in accordance with what it says and not in accordance with how the
Legislature or the Executive would want it interpreted. 20 This Court has the final word on what the law
means.21 The Court must assure respect for the constitutional limitations embodied in the 1987
Constitution.
Interpreting Section 6(b) and (c) of PD 15
At the heart of the controversy is Section 6(b) of PD 15, as amended, which reads:
Board of Trustees. The governing powers and authority of the corporation shall be vested
in, and exercised by, a Board of eleven (11) Trustees who shall serve without compensation.
xxxx
(b) Vacancies in the Board of Trustees due to termination of term, resignation, incapacity,
death or other cause as may be provided in the By-laws, shall be filled by election by a
vote of a majority of the trustees held at the next regular meeting following
occurrence of such vacancy. The elected trustee shall then hold office for a complete term
of four years unless sooner terminated by reason of resignation, incapacity, death or other
cause. Should only one trustee survive, the vacancies shall be filled by the surviving trustee
acting in consultation with the ranking officers of the Center. Such officers shall be
designated in the Center's Code of By-Laws. Should for any reason the Board be left entirely
vacant, the same shall be filled by the President of the Philippines acting in consultation with
the aforementioned ranking officers of the Center. (Emphasis supplied)
Inextricably related to Section 6(b) is Section 6(c) which limits the terms of the trustees, as follows:
(c) No person may serve as trustee who is not a resident of the Philippines, of good moral
standing in the community and at least 25 years of age: Provided, That there shall always be
a majority of the trustees who are citizens of the Philippines. Trustees may not
be reelected for more than two (2) consecutive terms. (Emphasis supplied)
The clear and categorical language of Section 6(b) of PD 15 states that vacancies in the CCP Board
shall befilled by a majority vote of the remaining trustees. Should only one trustee survive, the
vacancies shall be filled by the surviving trustee acting in consultation with the ranking
officers of the CCP. Should the Board become entirely vacant, the vacancies shall be filled by
the President of the Philippines acting in consultation with the same ranking officers of the CCP.
Thus, the remaining trustees, whether one or more, elect their fellow trustees for a fixed four-year
term. On the other hand, Section 6(c) of PD 15 does not allow trustees to reelect fellow trustees for
more than two consecutive terms.
The Power of Appointment

The source of the President's power to appoint, as well as the Legislature's authority to delegate the
power to appoint, is found in Section 16, Article VII of the 1987 Constitution which provides:
The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He shall also appoint all
other officers of the Government whose appointments are not otherwise provided for by law,
and those whom he may be authorized by law to appoint. The Congress may, by law, vest
the appointment of other officers lower in rank in the President alone, in the courts, or
in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment of the
Congress. (Emphasis supplied)
The power to appoint is the prerogative of the President, except in those instances when the
Constitution provides otherwise. Usurpation of this fundamentally Executive power by the Legislative
and Judicial branches violates the system of separation of powers that inheres in our democratic
republican government.22
Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of
officers. The first group refers to the heads of the Executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in the President by the Constitution. The second group
refers to those whom the President may be authorized by law to appoint. The third group refers to all
other officers of the Government whose appointments are not otherwise provided by law.
Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments
Congress may by law vest in the heads of departments, agencies, commissions, or boards. The
present case involves the interpretation of Section 16, Article VII of the 1987 Constitution with
respect to the appointment of this fourth group of officers.23
The President appoints the first group of officers with the consent of the Commission on
Appointments. The President appoints the second and third groups of officers without the consent of
the Commission on Appointments. The President appoints the third group of officers if the law is
silent on who is the appointing power, or if the law authorizing the head of a department, agency,
commission, or board to appoint is declared unconstitutional. Thus, if Section 6(b) and (c) of PD 15
is found unconstitutional, the President shall appoint the trustees of the CCP Board because the
trustees fall under the third group of officers.
The Scope of the Appointment Power of the Heads of
Departments, Agencies, Commissions, or Boards
The original text of Section 16, Article VII of the 1987 Constitution, as written in Resolution No.
51724 of the Constitutional Commission, is almost a verbatim copy of the one found in the 1935
Constitution. Constitutional Commissioner Father Joaquin Bernas, S.J., explains the evolution of this
provision and its import, thus:
The last sentence of the first paragraph of Section 16 x x x is a relic from the 1935 and 1973
Constitutions, x x x.

Under the 1935 Constitution, the provision was: "but the Congress may by law vest the
appointment of inferior officers in the President alone, in the courts, or in the heads of
departments." As already seen, it meant that, while the general rule was that all presidential
appointments needed confirmation by the Commission on Appointments, Congress could
relax this rule by vesting the power to appoint "inferior officers" in "the President alone, in the
courts, or in the heads of departments." It also meant that while, generally, appointing
authority belongs to the President, Congress could let others share in such authority.
And the word "inferior" was understood to mean not petty or unimportant but lower in
rank than those to whom appointing authority could be given.
Under the 1973 Constitution, according to which the power of the President to appoint was
not limited by any other body, the provision read: "However, the Batasang Pambansa may by
law vest in members of the Cabinet, courts, heads of agencies, commissions, and boards
the power to appoint inferior officers in their respective offices." No mention was made of the
President. The premise was that the power to appoint belonged to the President; but
the Batasan could diffuse this authority by allowing it to be shared by officers other
than the President.
The 1987 provision also has the evident intent of allowing Congress to give to officers other
than the President the authority to appoint. To that extent therefore reference to the
President is pointless. And by using the word "alone," copying the tenor of the 1935
provision, it implies, it is submitted, that the general rule in the 1935 Constitution of requiring
confirmation by the Commission on Appointments had not been changed. Thereby the
picture has been blurred. This confused text, however, should be attributed to oversight.
Reference to the President must be ignored and the whole sentence must be read merely as
authority for Congress to vest appointing power in courts, in heads of departments,
agencies, commissions, or boards after the manner of the 1973 text.
Incidentally, the 1987 text, in order to eschew any pejorative connotation, avoids the phrase
"inferior officers" and translates it instead into "officers lower in rank," that is, lower in rank
than the courts or the heads of departments, agencies, commissions, or
boards.25 (Emphasis supplied)
The framers of the 1987 Constitution clearly intended that Congress could by law vest the
appointment of lower-ranked officers in the heads of departments, agencies, commissions, or
boards. The deliberations26 of the 1986 Constitutional Commission explain this intent beyond any
doubt.27
The framers of the 1987 Constitution changed the qualifying word "inferior" to the less disparaging
phrase "lower in rank" purely for style. However, the clear intent remained that these inferior or
lower in rank officers are the subordinates of the heads of departments, agencies,
commissions, or boards who are vested by law with the power to appoint. The express
language of the Constitution and the clear intent of its framers point to only one conclusion the
officers whom the heads of departments, agencies, commissions, or boards may appoint must be of
lower rank than those vested by law with the power to appoint.
Congress May Vest the Authority to Appoint
Only in the Heads of the Named Offices
Further, Section 16, Article VII of the 1987 Constitution authorizes Congress to vest "in the heads of
departments, agencies, commissions, or boards" the power to appoint lower-ranked officers. Section
16 provides:

The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments, agencies, commissions,
or boards. (Emphasis supplied)
In a department in the Executive branch, the head is the Secretary. The law may not authorize the
Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the Executive
department. In an agency, the power is vested in the head of the agency for it would be
preposterous to vest it in the agency itself. In a commission, the head is the chairperson of the
commission. In a board, the head is also the chairperson of the board. In the last three situations,
the law may not also authorize officers other than the heads of the agency, commission, or board to
appoint lower-ranked officers.
The grant of the power to appoint to the heads of agencies, commissions, or boards is a matter of
legislative grace. Congress has the discretion to grant to, or withhold from, the heads of agencies,
commissions, or boards the power to appoint lower-ranked officers. If it so grants, Congress may
impose certain conditions for the exercise of such legislative delegation, like requiring the
recommendation of subordinate officers or the concurrence of the other members of the commission
or board.
This is in contrast to the President's power to appoint which is a self-executing power vested by the
Constitution itself and thus not subject to legislative limitations or conditions. 28 The power to appoint
conferred directly by the Constitution on the Supreme Court en banc29 and on the Constitutional
Commissions30 is also self-executing and not subject to legislative limitations or conditions.
The Constitution authorizes Congress to vest the power to appoint lower-ranked officers specifically
in the "heads" of the specified offices, and in no other person.31 The word "heads" refers to the
chairpersons of the commissions or boards and not to their members, for several reasons.
First, a plain reading of the last sentence of the first paragraph of Section 16, Article VII of the 1987
Constitution shows that the word "heads" refers to all the offices succeeding that term, namely, the
departments, agencies, commissions, or boards. This plain reading is consistent with other related
provisions of the Constitution.
Second, agencies, like departments, have no collegial governing bodies but have only chief
executives or heads of agencies. Thus, the word "heads" applies to agencies. Any other
interpretation is untenable.
Third, all commissions or boards have chief executives who are their heads. Since the Constitution
speaks of "heads" of offices, and all commissions or boards have chief executives or heads, the
word "heads" could only refer to the chief executives or heads of the commissions or boards.
Fourth, the counterpart provisions of Section 16, Article VII of the 1987 Constitution in the 1935 and
1973 Constitutions uniformly refer to "heads" of offices. The 1935 Constitution limited the grant of the
appointment power only to "heads of departments."32 The 1973 Constitution expanded such grant to
other officers, namely, "members of the Cabinet, x x x, courts, heads of agencies, commissions, and
boards x x x."33
If the 1973 Constitution intended to extend the grant to members of commissions or boards, it could
have followed the same language used for "members of the Cabinet" so as to state "members of
commissions or boards." Alternatively, the 1973 Constitution could have placed the words
commissions and boards after the word "courts" so as to state "members of the Cabinet, x x x,

courts, commissions and boards." Instead, the 1973 Constitution used "heads of agencies,
commissions, and boards."
Fifth, the 1935, 1973, and 1987 Constitutions make a clear distinction whenever granting the power
to appoint lower-ranked officers to members of a collegial body or to the head of that collegial body.
Thus, the 1935 Constitution speaks of vesting the power to appoint "in the courts, or in the heads of
departments." Similarly, the 1973 Constitution speaks of "members of the Cabinet, courts, heads
of agencies, commissions, and boards."
Also, the 1987 Constitution speaks of vesting the power to appoint "in the courts, or in the heads of
departments, agencies, commissions, or boards." This is consistent with Section 5(6), Article VIII of
the 1987 Constitution which states that the "Supreme Court shall x x x [a]ppoint all officials and
employees of the Judiciary in accordance with the Civil Service Law," making the Supreme Court en
banc the appointing power. In sharp contrast, when the 1987 Constitution speaks of the power to
appoint lower-ranked officers in the Executive branch, it vests the power "in the heads of
departments, agencies, commissions, or boards."
In addition, the 1987 Constitution expressly provides that in the case of the constitutional
commissions, the power to appoint lower-ranked officers is vested in the commission as a body.
Thus, Section 4, Article IX-A of the 1987 Constitution provides, "The Constitutional Commissions
shall appoint their officials and employees in accordance with law."
Sixth, the last clause of the pertinent sentence in Section 16, Article VII of the 1987 Constitution is
anenumeration of offices whose heads may be vested by law with the power to appoint lowerranked officers. This is clear from the framers' deliberations of the 1987 Constitution, thus:
THE PRESIDENT: Commissioner Davide is recognized.
MR. DAVIDE: On page 8, line 3, change the period (.) after "departments" to a comma (,)
and add AGENCIES, COMMISSIONS, OR BOARDS. This is just to complete the
enumeration in the 1935 Constitution from which this additional clause was taken.
THE PRESIDENT: Does the Committee accept?
xxxx
MR. SUMULONG: We accept the amendment.
MR. ROMULO: The Committee has accepted the amendment, Madam President.
THE PRESIDENT: Is there any objection to the addition of the words "AGENCIES,
COMMISSIONS, OR BOARDS" on line 3, page 8? (Silence) The Chair hears none; the
amendment is approved.34 (Italicization in the original; boldfacing supplied)
As an enumeration of offices, what applies to the first office in the enumeration also applies to the
succeeding offices mentioned in the enumeration. Since the words "in the heads of" refer to
"departments," the same words "in the heads of" also refer to the other offices listed in the
enumeration, namely, "agencies, commissions, or boards."
The Chairperson of the CCP Board is the Head of CCP

The head of the CCP is the Chairperson of its Board. PD 15 and its various amendments constitute
the Chairperson of the Board as the head of CCP. Thus, Section 8 of PD 15 provides:
Appointment of Personnel. The Chairman, with the confirmation of the Board, shall have
the power to appoint all officers, staff and personnel of the Center with such compensation
as may be fixed by the Board, who shall be residents of the Philippines. The Center may
elect membership in the Government Service Insurance System and if it so elects, its officers
and employees who qualify shall have the same rights and privileges as well as obligations
as those enjoyed or borne by persons in the government service. Officials and employees of
the Center shall be exempt from the coverage of the Civil Service Law and Rules.
Section 3 of the Revised Rules and Regulations of the CCP recognizes that the head of the CCP is
the Chairman of its Board when it provides:
CHAIRMAN OF THE BOARD. The Board of Trustees shall elect a Chairman who must be
one of its members, and who shall be the presiding officer of the Board of Trustees, with
power among others, to appoint, within the compensation fixed by the Board, and subject to
confirmation of the Board, remove, discipline all officers and personnel of the Center, and to
do such other acts and exercise such other powers as may be determined by the Board of
Trustees. The Chairman shall perform his duties and exercise his powers as such until such
time as the Board of Trustees, by a majority vote, shall elect another Chairman. The
Chairman shall be concurrently President, unless the Board otherwise elects another
President.
Thus, the Chairman of the CCP Board is the "head" of the CCP who may be vested by law, under
Section 16, Article VII of the 1987 Constitution, with the power to appoint lower-ranked officers of the
CCP.
Under PD 15, the CCP is a public corporation governed by a Board of Trustees. Section 6 of PD 15,
as amended, states:
Board of Trustees. The governing powers and authority of the corporation shall be vested
in, and exercised by, a Board of eleven (11) Trustees who shall serve without compensation.
The CCP, being governed by a board, is not an agency but a board for purposes of Section 16,
Article VII of the 1987 Constitution.
Section 6(b) and (c) of PD 15 Repugnant to
Section 16, Article VII of the 1987 Constitution
Section 6(b) and (c) of PD 15 is thus irreconcilably inconsistent with Section 16, Article VII of the
1987 Constitution. Section 6(b) and (c) of PD 15 empowers the remaining trustees of the CCP Board
to fill vacancies in the CCP Board, allowing them to elect their fellow trustees. On the other hand,
Section 16, Article VII of the 1987 Constitution allows heads of departments, agencies,
commissions, or boards to appoint only "officers lower in rank" than such "heads of departments,
agencies, commissions, or boards." This excludes a situation where the appointing officer appoints
an officer equal in rank as him. Thus, insofar as it authorizes the trustees of the CCP Board to elect
their co-trustees, Section 6(b) and (c) of PD 15 is unconstitutional because it violates Section 16,
Article VII of the 1987 Constitution.

It does not matter that Section 6(b) of PD 15 empowers the remaining trustees to "elect" and not
"appoint" their fellow trustees for the effect is the same, which is to fill vacancies in the CCP Board. A
statute cannot circumvent the constitutional limitations on the power to appoint by filling vacancies in
a public office through election by the co-workers in that office. Such manner of filling vacancies in a
public office has no constitutional basis.
Further, Section 6(b) and (c) of PD 15 makes the CCP trustees the independent appointing power of
their fellow trustees. The creation of an independent appointing power inherently conflicts with the
President's power to appoint. This inherent conflict has spawned recurring controversies in the
appointment of CCP trustees every time a new President assumes office.
In the present case, the incumbent President appointed the Endriga group as trustees, while the
remaining CCP trustees elected the same Endriga group to the same positions. This has been
the modus vivendi in filling vacancies in the CCP Board, allowing the President to appoint and the
CCP Board to elect the trustees. In effect, there are two appointing powers over the same set of
officers in the Executive branch. Each appointing power insists on exercising its own power, even
if the two powers are irreconcilable. The Court must put an end to this recurring anomaly.
The President's Power of Control
There is another constitutional impediment to the implementation of Section 6(b) and (c) of PD 15.
Under our system of government, all Executive departments, bureaus, and offices are under the
control of the President of the Philippines. Section 17, Article VII of the 1987 Constitution provides:
The President shall have control of all the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed. (Emphasis supplied)
The presidential power of control over the Executive branch of government extends to all executive
employees from the Department Secretary to the lowliest clerk.35 This constitutional power of the
President is self-executing and does not require any implementing law. Congress cannot limit or
curtail the President's power of control over the Executive branch.36
The 1987 Constitution has established three branches of government the Executive, Legislative
and Judicial. In addition, there are the independent constitutional bodies like the Commission on
Elections, Commission on Audit, Civil Service Commission, and the Ombudsman. Then there are the
hybrid or quasi-judicial agencies,37exercising jurisdiction in specialized areas, that are under the
Executive branch for administrative supervision purposes, but whose decisions are reviewable by
the courts. Lastly, there are the local government units, which under the Constitution enjoy local
autonomy38 subject only to limitations Congress may impose by law.39 Local government units are
subject to general supervision by the President.40
Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial
branches, or must belong to one of the independent constitutional bodies, or must be a quasi-judicial
body or local government unit. Otherwise, such government office, entity, or agency has no legal and
constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also not
one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local
government unit. Thus, the CCP must fall under the Executive branch. Under the Revised
Administrative Code of 1987, any agency "not placed by law or order creating them under any
specific department" falls "under the Office of the President."41

Since the President exercises control over "all the executive departments, bureaus, and offices," the
President necessarily exercises control over the CCP which is an office in the Executive branch. In
mandating that the President "shall have control of all executive x x x offices," Section 17, Article
VII of the 1987 Constitution does not exempt any executive office one performing executive
functions outside of the independent constitutional bodies from the President's power of control.
There is no dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial
functions.
The President's power of control applies to the acts or decisions of all officers in the Executive
branch. This is true whether such officers are appointed by the President or by heads of
departments, agencies, commissions, or boards. The power of control means the power to revise or
reverse the acts or decisions of a subordinate officer involving the exercise of discretion. 42
In short, the President sits at the apex of the Executive branch, and exercises "control of all the
executive departments, bureaus, and offices." There can be no instance under the Constitution
where an officer of the Executive branch is outside the control of the President. The Executive
branch is unitary since there is only one President vested with executive power exercising control
over the entire Executive branch.43 Any office in the Executive branch that is not under the control of
the President is a lost command whose existence is without any legal or constitutional basis.
The Legislature cannot validly enact a law that puts a government office in the Executive branch
outside the control of the President in the guise of insulating that office from politics or making it
independent. If the office is part of the Executive branch, it must remain subject to the control of the
President. Otherwise, the Legislature can deprive the President of his constitutional power of control
over "all the executive x x x offices." If the Legislature can do this with the Executive branch, then the
Legislature can also deal a similar blow to the Judicial branch by enacting a law putting decisions of
certain lower courts beyond the review power of the Supreme Court. This will destroy the system of
checks and balances finely structured in the 1987 Constitution among the Executive, Legislative,
and Judicial branches.
Of course, the President's power of control does not extend to quasi-judicial bodies whose
proceedings and decisions are judicial in nature and subject to judicial review, even as such quasijudicial bodies may be under the administrative supervision of the President. It also does not extend
to local government units, which are merely under the general supervision of the President.
Section 6(b) and (c) of PD 15, which authorizes the trustees of the CCP Board to fill vacancies in the
Board, runs afoul with the President's power of control under Section 17, Article VII of the 1987
Constitution. The intent of Section 6(b) and (c) of PD 15 is to insulate the CCP from political
influence and pressure, specifically from the President. 44 Section 6(b) and (c) of PD 15 makes the
CCP a self-perpetuating entity, virtually outside the control of the President. Such a public office or
board cannot legally exist under the 1987 Constitution.
Section 3 of PD 15, as amended, states that the CCP "shall enjoy autonomy of policy and operation
x x x."45 This provision does not free the CCP from the President's control, for if it does, then it would
be unconstitutional. This provision may give the CCP Board a free hand in initiating and formulating
policies and undertaking activities, but ultimately these policies and activities are all subject to the
President's power of control.
The CCP is part of the Executive branch. No law can cut off the President's control over the CCP in
the guise of insulating the CCP from the President's influence. By stating that the "President shall
have control of all the executive x x x offices," the 1987 Constitution empowers the President not

only to influence but even to control all offices in the Executive branch, including the
CCP. Control is far greater than, and subsumes, influence.
WHEREFORE, we GRANT the petition in G.R. No. 139554. We
declare UNCONSTITUTIONAL Section 6(b) and (c) of Presidential Decree No. 15, as amended,
insofar as it authorizes the remaining trustees to fill by election vacancies in the Board of Trustees of
the Cultural Center of the Philippines. In view of this ruling in G.R. No. 139554, we find it
unnecessary to rule on G.R. No. 139565.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr.,
J.J., concur.

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

G.R. No. 139554


(Armita B. Rufino, Zenaida R. Tantoco, Lorenzo Calma, Rafael Simpao, Jr., and Freddie Garcia,
petitioners, v.Baltazar N. Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison, Irma Ponce-Enrile
Potenciano, and Doreen Fernandez, respondents)
G.R. No. 139565
(Baltazar N. Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison, Irma Ponce-Enrile Potenciano, and
Doreen Fernandez, petitioners, v. Armita B. Rufino, Zenaida R. Tantoco, Lorenzo Calma, Rafael
Simpao, Jr., and Freddie Garcia, respondents.)
Promulgated:
July 21, 2006
x -------------------------------------------------------------------------------- x
DISSENTING OPINION
TINGA, J.:
The majority's ruling is not as innocuous as it may seem. It is of monumental but disturbing
consequence. It upsets the delicate balance ordained by our constitutional system, which reposes
on the three equal branches of government different inherent functions augmented by specifically
chartered duties. In one fell swoop, it expands executive power in unprecedented fashion
while diminishing the inherent plenary power of Congress to make laws as explicitly
guaranteed by the Constitution. It gives license to the President to disregard the laws
enacted by Congress although it is the Chief Executive's sworn constitutional duty to
faithfully execute the laws of the land, an intolerable notion under the democratic order. With
all due respect, I must dissent.

The majority has voted to uphold the power of the President to appoint the members of the Board of
Trustees (CCP board) of the Cultural Center of the Philippines (CCP), a government owned or
controlled corporation (GOCC) established by P.D. No. 15 as amended (CCP Charter) 1 as a "nonmunicipal public corporation."2 A brief reference to the key facts is necessary to illustrate the
seriousness of the problem.
The petitioners in G.R. No. 139565 (Endriga Group) were members of the CCP board who sat in
such capacity beginning in 1995. Then President Ramos issued appointment papers to the members
of the Endriga Group in 1995, qualifying that their appointment would extend only until 31 December
1998. At the same time, the Endriga Group was likewise elected by the CCP board as members of
the board, with Endriga himself elected as President.
On 22 December 1998, President Estrada advised Endriga through a letter advising him of seven (7)
new appointees (the Rufino Group) to the CCP board replacing the Endriga Group. The Endriga
Group resisted these new appointments by filing a quo warranto petition, the resolution of which by
the Court of Appeals spawned the present petitions.
In main, the Endriga Group posited that they could not have been replaced by President Estrada as
they had not yet completed their four-year term of office as provided in the CCP Charter. The Court
of Appeals3 agreed with the basic position of the Endriga Group, notwithstanding the proviso made
by President Ramos in his appointment papers. The Court of Appeals compelled obeisance instead
to Section 6 of the CCP Charter which reads:
Sec. 6. Board of Trustees. The governing powers and authority of the corporation shall be
vested in, and exercised by, a Board of eleven (11) trustees who shall serve without
compensation.
(a) The trustees appointed by the President of the Philippines pursuant to Executive Order
No. 30 dated 25 June 1966, and currently holding office shall be the first trustees to serve on
the Board of the new Center and shall be known as Founding Trustees. They shall elect the
remaining trustees for a complete [Board]. Elected trustees shall hold office for a period of
four (4) years.
(b) Vacancies in the Board of Trustees due to termination of term, resignation, incapacity,
death or other cause as may be provided in the By-laws, shall be filled by election by a vote
of a majority of the trustees held at the next regular meeting following occurrence of such
vacancy. The elected trustee shall then hold office for a complete term of four years unless
sooner terminated by reason of resignation, incapacity, death or other cause. Should only
one trustee survive, the vacancies shall be filled by the surviving trustee acting in
consultation with the ranking officers of the Center. Such officers shall be designated in the
Center's Code of By-Laws. Should for any reason the Board be left entirely vacant, the same
shall be filled by the President of the Philippines acting in consultation with the
aforementioned ranking officers of the Center.4
The CCP Charter clearly states that the trustees appointed by the President in 1966 shall elect the
remaining trustees to complete the board, and such electees shall hold office for a period of four (4)
years. Subsequent vacancies in the board shall be filled by the Board of Trustees, through a majority
vote, with the new appointee serving for a four (4)-year term. The power to select the members of
the Board of Trustees is always vested in the board, no matter the number of persons who are
serving therein at a particular time, except when all the positions in the board without exception are
vacant. It is only then that the President may exercise the power to appoint the members of the

board, subject to the condition that the appointments be made in consultation with the ranking
officers of the CCP.
The majority, reversing the Court of Appeals, holds this setup prescribed by Section 6 of the CCP
Charter, unconstitutional. Two grounds are offered for this holding. First, Section 16, 5 Article VII of
the Constitution (Appointments Clause) limits the authority of Congress to vest the power of
appointment over lower-ranked officials only to "heads of departments, agencies, commissions or
boards." In the majority's estimation, the CCP should be considered as a "board" for purposes of the
Appointments Clause, and thus, only the chairperson of the CCP could be authorized by law to
exercise the right to appoint.6
Second, the presidential power of control over the executive branch, as provided in Section
17,7 Article VII of the Constitution (Executive Control Clause), grants the President control over the
CCP. The authority of the CCP board of Trustees to fill vacancies in the Board renders the CCP a
"self-perpetuating entity [outside] the control of the President," and is thus unconstitutionally drawn. 8
It is not readily apparent from the ponencia whether it maintains that executive control, as
contemplated in the Constitution, empowers the President to make all appointments of officers and
officials within the executive branch. If that were the position, such view is clearly inconsistent with
the Appointments Clause which categorically authorizes Congress to empower officials other than
the President to make such appointments, in the case of lower-ranked officials. To sustain the
expansive view that "executive control" extends to the power of the President to make all
appointments in the executive branch would render the Appointments Clause inutile. It would then be
senseless to acknowledge that Congress has the right to authorize the heads of departments,
agencies, commissions or boards to appoint their junior officers, since executive control would
indubitably vest that right to the President anyway. It is nonetheless cold comfort that the majority
does not expressly frame such a view, and I hope that the ponencia does not lay the groundwork for
such a radical notion.
Notwithstanding, I prefer to delineate the critical issues in the following manner. The Appointments
Clause, being complete in itself, is the sole constitutional provision governing the authority of the
President to make appointments to the executive branch, as well as the authority of Congress to
provide otherwise in certain instances. The Executive Control Clause does not extend to the
presidential power of appointments. Thus, in ruling on whether or not the President or the CCP
Board of Trustees has the power to appoint members of the board, it is the Appointments Clause
alone that should govern.
At the same time, due consideration of the Executive Control Clause is also warranted in the present
cases, but for a different purpose. It is clear from the petitions that assailed also are the acts of
President Ramos in limiting below four (4) years the term of his appointees to the CCP board, and
the subsequent act of President Estrada in appointing new appointees to the board despite the fact
that the four(4)-year term of those persons who purportedly vacated their seats had not yet expired.
Thus, a second critical issue arises: whether the holder of a statutory term of office in the
executive branch may be removed from office by the President on the basis of the power of
executive control.
The Power of Appointment in Relation to the CCP Board of Trustees
Constitutional authority to make appointments within the executive branch is governed solely by the
Appointments Clause of the Constitution, which is broad enough to cover all possible appointment
scenarios. The provision states:

SECTION 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or boards.
The first sentence of the Appointments Clause enumerates the officers whom only the President
may appoint, subject to the consent of the Commission of Appointments. There is no doubt that no
official of the CCP, or any GOCC for that matter, is included in this first category of appointees. 9
The second and third sentences must be examined together. The second sentence authorizes the
President to appoint all other officers whose appointments are not otherwise provided for by law, or
those whom he may be authorized to appoint by law. This authority must be appreciated with the
third sentence, which authorizes Congress to vest the appointment of other officers lower in rank to
the President, the courts, or in the heads of departments, agencies, commissions, or boards.
Thus, as regards the officials in the executive branch other than those enumerated in the first
sentence of the Appointments Clause, or those who do not belong to the first category, the following
valid scenarios are authorized: (1) the law may expressly authorize the President to make the
appointment; (2) the law may expressly authorize the courts or the heads of departments, agencies,
commissions or boards to appoint those officers lower in rank; (3) the law may remain silent on the
power of appointment, thus enabling the President to make the appointment on the basis of the
Appointments Clause itself. Implicitly, it can also be argued that other than the case of "other officers
lower in rank," Congress may authorize a person or entity other than the President to appoint all
such other officers, or provide for a modality through which such appointment may be made. I am
aware that this last point may be a source of controversy, yet for reasons I shall explain later, it is not
an issue in the particular cases at bar and, hence, need not be settled for now.
From the same provision, the majority formulates two premises: that the CCP is considered a
"board" or "Board" for purposes of the Appointments Clause, 10 and, that only the President or the
chairperson of the CCP Board of Trustees, may be authorized by law to appoint officials of the
CCP.11 I respectfully disagree with both premises.
CCP an Agency under the Appointments Clause
I submit that "boards," as used in the Appointments Clause, does not pertain to the boards of
directors of government or public corporations such as the CCP. Such GOCCs are properly
considered as agencies which nonetheless fall within the same classification in the Appointments
Clause.
The term "board" or "Board,"12 as utilized in the administrative bureaucracy, may pertain to different
entities performing different functions under different mandates. There are several prominent
government agencies which use the nomenclature "Board," such as the Monetary Board (MB), the
Housing Land Use and Regulatory Board (HLURB), the Department of Agrarian Reform Adjudication
Board (DARAB), the Movie and Television Review and Classification Board (MTRCB), and the
former Energy Regulatory Board, among others. Collegial bodies such as the Boards just mentioned
have long formed part of the executive superstructure, along with departments, agencies and
commissions. Hence, it came as no surprise that all four (4) entities were lumped together in the
Appointments Clause.

However, the board of directors or board of trustees of a government corporation should be


appreciated in a different context. Unlike the Boards enumerated above, the board of
directors/trustees does not constitute a unit that operates by itself as an agency of the government.
Instead, such board of directors/trustees, as a general rule, operates as the body that exercises
the corporate powers of the government corporations concerned. The Constitution itself authorizes
the creation of government-owned or controlled corporations through special charters, 13 and the CCP
was established as a public corporation through Presidential Decree No. 15, its charter.
The majority believes differently, stating that since the CCP is governed by a board, it is not an
agency but a Board for purposes of the Appointments Clause. The majority explains this away by
merely noting that there is such an entity as the CCP Board of Trustees. The bother of explaining
why the CCP is a board, as distinguished from a department, agency or commission is altogether
avoided. Instead, it is assumed as self-evident that since there is a CCP Board of Trustees, the CCP
is consequently a board.
For one, the CCP itself may be considered as an agency since under the Administrative Code, an
agency includes a government-owned or controlled corporation. 14 The term "Board," used in a
general sense, has been defined as a representative body organized to perform a trust or to execute
official or representative functions,15or a group of persons with managerial, supervisory or
investigatory functions.16 There is no doubt that sovereign executive functions can be delegated
through duly constituted Boards, such as the HLURB or MTRCB, and it is commonly understood that
the Boards in those cases refer to a group of individuals vested with the exercise of governmental
functions. However, boards do not normally have independent juridical personality, unlike
corporations.
Indeed, whatever governmental functions are exercised by the members of the CCP Board of
Trustees are not derived from their formation as a board but from its installation by charter as the
governing authority of a GOCC. The Board of Trustees is not vested with any sort of independent
juridical personality under the CCP charter; such personality is imbued instead in the CCP itself. The
Board of Trustees may be the governing authority of the CCP, but it is the CCP itself as the
legislative creation that is tasked to perform the mandate of its charter. The latest performances of
the prima ballerinas are sponsored and presented not by the panel known as the "CCP Board of
Trustees," but by the entity that is the CCP itself.
Assuming for the nonce that there is ambiguity in how the term "board" in the Appointments Clause
should be construed, the rule is that the correct meaning may be made clear and specific by
considering the company of words in which the term is found or with which it is
associated.17 Departments, agencies, commissions orboards (Boards) all pertain to segregate units
within the executive branch performing with particular competence unique and specialized functions.
Departments, agencies, commissions or boards (Boards) refer to offices of different nomenclatures
within the executive department, each performing functions that are independent of each other.
Furthermore, that the use of the disjunctive term "or" in the enumeration "departments, agencies,
commissions orboards (Boards)" signifies that these four entities, though lumped together, are under
constitutional contemplation disassociated or distinct from each other.18 Given the degree of fluidity
within administrative practice, it is standard that a particular government office would create
subdivided groupings to which functions would be delegated. Considering the paucity of available
terms, these groupings could very well be named as "departments," "agencies," "commissions," or
"boards" (Boards). Thus, Agency X could have an Accounting Department, a Board of Merit Review,
and Employee Health and Welfare Commission. With the majority's reasoning, these three
aggrupments would fall within the same constitutional class under the Appointments Clause as

Agency X itself. Worse, the appointing power of the head of the Accounting Department would be
treated separately and accorded equal constitutional weight as that of the head of Agency X.
The example may border on the absurd, but that is the implication of the majority's holding that the
CCP Board of Trustees is considered as a "Board" for purposes of the Appointments Clause, even if
the CCP itself is properly an agency. The enumeration "departments, agencies, commissions or
boards (Boards)," highlighted by the use of the disjunctive word "or" positively implies that the
items are treated singly, and not one at the same time.19 The CCP board cannot be disassociated
from the CCP itself for the former was constituted as the governing authority of the CCP and not as
an independent entity on its own.
In short, within the enumeration the CCP is more akin to an "agency" rather than a "Board." Under
the Appointments Clause, agencies and Boards are accorded similar treatment and in both cases,
Congress may vest the power to appoint officers in the "head" of such agency or Board. In CCP's
case, the appointment power may be delegated to the "head" of the CCP.
Board of Trustees is the Head of the CCP
Who then is the "head" of the CCP? The majority suggests that it is the Chairperson of the CCP
board. I respectfully differ but maintain that it is the CCP board itself that is the "head" of the CCP or
acts as such head.
The majority's conclusion is predicated on the premise that the CCP should be classified as a board
(Board) and not an agency. However, as I pointed out, the CCP as a GOCC should instead be
considered as an agency. Indeed, the CCP Board of Trustees cannot exercise any function or power
outside the context of its mandate as the governing authority of the CCP.
Certainly, the answer to the query as to who or which is the head of the CCP should be discerned
primarily from its charter.
As earlier stated, Section 6 of the CCP Charter expressly provides that "the governing powers and
authority of the corporation shall be vested in, and exercised by, a Board [of]
Trustees."20 Even the Rufino Group concedes that the CCP Board of Trustees itself is the "head" of
the CCP, owing to the fact that is the governing body of the CCP.21
Section 8 of the CCP Charter provides the Chairperson with a power of appointment which
nonetheless is limited, incomplete, and subject to confirmation by the CCP Board.
Sec. 8. Appointment of Personnel. The Chairman, with the confirmation of the Board,
shall have the power to appoint all officers, staff and personnel of the Center with such
compensation as may be fixed by the Board, who shall be residents of the Philippines. xxx 22
The Revised Rules and Regulations of the CCP provides the Chairperson with additional powers not
found in the charter, particularly the power to remove and discipline all officers and personnel of the
CCP. Section 3 of the Revised Rules states:
Sec. 3. Chairman of the Board. The Board of Trustees shall elect a Chairman who must be
one of its members, and who shall be the presiding officer of the Board of Trustees, with
power among others, to appoint, within the compensation fixed by the Board, and
subject to confirmation of the Board, remove, discipline all officers and personnel of the

Center, and to do such other acts and exercise such other powers as may be determined
by the Board of Trustees. The Chairman shall perform his duties and exercise his powers
as such until such time as the Board of Trustees, by a majority vote, shall elect another
Chairman. The Chairman shall be concurrently President unless the Board otherwise elects
another President.23
Even as these Revised Rules and Regulations emanate from the CCP Board itself, the limitations
contained therein on the powers to be exercised by the Chairperson highlight, rather than diminish,
the stature of the board as the governing power and authority over the CCP.
This relationship between the CCP Chairperson and the CCP board is aligned with the theory and
practice of corporations. Generally, corporate acts and powers are exercised by the board of
directors of stock corporations or the board of trustees of non-stock corporations. 24 Such corporate
powers may be delegated by charter or by-laws, or even by the board, to particular corporate
officers. However, the authority of officers to bind the corporation is usually not considered inherent
in their office, but is derived from law, the corporate by-laws, or by delegation from the board, either
expressly or impliedly by habit, custom or acquiescence in the general course of business. 25
In the case of the CCP, whatever powers are delegated to the CCP Chairperson, even if incidental to
the exercise of the corporate powers of the CCP, are still subject to confirmation by the Board of
Trustees. The Chairperson cannot by himself/herself enter into contractual relations unless
previously authorized by the Board of Trustees. On the other hand, the Board may, without prior
authority from any other person or entity, enter into such contractual relations. Even those powers
expressly granted to the Chairperson, such as appointment of officers, staff and personnel, are
qualified with the phrase, "subject to/with confirmation of the Board."
Evidently, the powers of the CCP Chairperson are especially circumscribed while the Board of
Trustees is vested with latitude to overturn the discretion of the CCP Chairperson.
In short, for all the prestige that comes with chairing the CCP board, the Chairperson has
limited powers, and his/her acts are subject to confirmation, if not reversal, by the board. The
Chairperson is not the final authority as he/she lacks the final say within the CCP system
itself. It is the Board of Trustees that is the duly constituted governing authority of the CCP,
the statutory delegate vested with the last word over the acts of the CCP itself.
I feel that the majority has succumbed to the temptation in regarding the term "head" as exclusively
referring to a singular personality. Such a reading, I respectfully submit, is unduly formalistic. The
proper construction of "head" should be functional in approach, focusing on the entity that exercises
the actual governing authority rather than searching for a single individual who could be deemed by
reason of title as representative of the CCP. For the objective of the Appointments Clause is to
allow the power to appoint to be exercised by the final governing authority of a department,
agency, commission or board (Board) over its junior officers. It would be patently absurd to
insist that the constitutional intent is to authorize the repose of such appointing power
instead to an individual officer whose acts are still subject to confirmation by a higher
authority within that office. Interpretatio talis in ambiguis semper freinda est, ut eviatur
inconveniens et absurdum.26
Thus, pursuant to the Appointments Clause, Congress may vest on the CCP board, as the head of
the CCP, the power to appoint officers of the CCP. The controversy in this case lies though in the
appointment of the members of the Board of Trustees themselves, and not the particular officers of
the CCP. Thus, the question is this: Can the Board of Trustees be validly empowered by law to
appoint its own members, as it is so under the CCP Charter?

CCP Board Superior in Rank


Over the Individual Trustees
As stated earlier, the Rufino Group concedes that it is the CCP board that is the "head" of the
CCP.27 At the same time, it argues that the law could not validly give unto the members of the CCP
board the authority to appoint their fellow trustees, for the latter would be officers of equal rank, and
not lower rank.28 The majority adopts this latter position of the Rufino Group.29
I respectfully submit that the CCP board may validly appoint its own trustees, as provided for in
Section 6(b) of the CCP Charter, and under the authority of Section 16, Article VII of the
Constitution. In doing so, I recognize that the Board of Trustees as a body, the head of the
CCP, remains superior in rank than any particular member of the board.
Certainly, there can be no argument that an individual member of the CCP board is an entity
separate from the board itself, and that he, the board member, remains under the governing
authority of the CCP board. Generally speaking, the term "inferior officer" connotes a relationship
with some higher ranking officer or officers.30 A board member by himself/herself cannot speak for or
act in behalf of the board as a whole, unless the board authorizes that member to do so. When the
Board of Trustees elects to fill a vacancy in the board, it cannot be said that it exercises the power
appointment to a co-equal office. As stated before, the Board of Trustees is an entity separate from
and superior to any one of its members.
Under Section 6(d) of the CCP Charter, "majority of the Trustees holding office shall constitute a
quorum to do business." The CCP board is thus able to operate and exercise its corporate powers
irrespective of the number of persons sitting on the board at a particular time. In fact, it is possible
that at a given time, the entire CCP board would consist of only one member, who until such time the
vacancies are filled, wields the powers of the Board of Trustees. This possibility is precisely
recognized under Section 6(b) of the CCP Charter, which authorizes the single remaining board
member to fill the remaining vacancies in the board. Unusual as it may seem, it precisely aligns with
the theories behind corporate personality. The remaining board member is authorized to fill the
remaining vacancies for at that moment said member is the Board of Trustees, the governing
authority of the CCP.
The Court has recognized that collective or collegiate bodies outweigh or outrank the individual
members, even if the member is the presiding officer of the body. In GMCR, Inc. v. Bell
Telecommunications,31 the Court upheld a ruling of the Court of Appeals invalidating an order and
other issuances signed solely by the Chairman of the National Telecommunications Commission
(NTC). The Chairman had maintained that he had the exclusive authority to sign, validate and
promulgate all orders, resolutions and decisions of the NTC. The Court disagreed, holding that the
NTC is a collegial body "requiring a majority vote out of the three members of the commission in
order to validly decide a case or any incident therein." 32 It was further noted that the NTC Chairman
"is not the [NTC]. He alone does not speak for and in behalf of the NTC. The NTC acts through a
three-man body, and the three members of the commission each has one vote to cast in every
deliberation concerning a case or any incident therein that is subject to the jurisdiction of the NTC." 33
Even the collegial bodies established under the Constitution exercise their powers collectively, and
not through their presiding officer. Thus, it is the Supreme Court, not the Chief Justice, which has the
power to appoint all officials and employees of the judiciary.34 The Commission on Elections
(COMELEC) and the Commission on Audit (COA) exercise their constitutional powers as a body,
and not through their Chairpersons.35

Even if not denominated as such, the CCP board takes on the same attributes as any collegial body,
and could be recognized as such in the same way that the Court has recognized the Integrated Bar
of the Philippines Board of Governors as a collegial body. The CCP board makes decisions as a
collective body during its regular meetings, presumably after deliberation, the exchange of views and
ideas, and the concurrence of the required majority vote. 36
Still, the majority's theory that Section 6 of the CCP Charter is unconstitutional is anchored in part on
the assumed predicate that it is the only the Chairperson of the CCP board, as "head" of the CCP,
who may be empowered by law to appoint the members of the CCP board. If this premise is
adopted, it would operate as the rule not only in the CCP, but in all GOCCs. Following the majority,
the following kinds of appointment would consequently be unconstitutional:
1) Appointments to the Board of Directors/Trustees of any GOCC by authorities other than the
President of the Philippines or the chairperson of the board. The power to appoint members of the
Board of Directors/Trustees of GOCCs would exclusively belong to the President or the Chairperson
of the Board, notwithstanding any statutory mandate through a charter providing the contrary.
2) Appointments of other officers and officials of GOCCs by authorities other than the President of
the Philippines or the chairperson of the board. Even if the Board of Directors or Trustees is duly
constituted by charter as the governing authority of the GOCC, the majority would deprive such
governing authority any appointing power, as such power could purportedly be vested only in the
President or the chairperson of the board.
3) Ex-officio appointments to the boards of GOCCs. The charters of several GOCCs mandate that
certain persons sit in the Board of Directors/Trustees by reason of their office, or in an exofficio capacity. Such ex-officioappointments are not expressly provided for in the Constitution.
Following the majority's literalist reading of the Appointments Clause, ex-officio appointments are
similarly invalid as they do not derive from the exclusive appointment power of the President or the
chairperson of the board.
Again, with all due respect, the rationale is predicated on a flawed interpretation of the terms "head"
and "board" (Board) as used in Section 16, Article VII, a reading that is alien to the common
understanding of corporate personality, as well as actual corporate practice. On the contrary, the
procedure outlined in Section 6 of the CCP Charter, vesting in the CCP Board of Trustees the
authority to appoint the members of the board, is congruent with constitutional order. It should be
stressed anew that the CCP Board itself is the head of the CCP and that any individual member of
the board is lower in rank than the board itself.
It is de rigueur for directors of a corporation to fill vacancies in their own Board where such power is
conferred upon them by statute or charter or by by-law.37 Modern statutes typically provide that
vacancies in the Board, regardless of the cause, may be filled up by the Board itself, side by side
with an identical power vested in the shareholders.38 Among them is the U.S. Model Corporation
Business Act of 1984 which acknowledges that vacancies in the board of directors may be properly
filled by the Board itself.39 The CCP precisely has that power conferred to it by statute, the CCP
charter that is.
Perhaps this question may arise: if the CCP board, as head of the CCP, may be legally authorized to
appoint its own members, they being officers lower in rank than the board, who then may appoint the
CCP board itself, as distinguished from individual vacancies therein? It should be noted though that
it is settled rule that the term "appointment" is in law equivalent to "filling a vacancy." 40 A vacancy
exists when there is no person lawfully authorized to assume and exercise at present the duties of
the office.41 Accordingly the appointment power cannot be validly exercised unless there is a vacancy

to be filled. In the case of the CCP, its charter provides that the Board of Trustees subsists even if
there is only one remaining board member left.42 Hence, the CCP board can only be considered as
truly vacant if there is not even one member left sitting on the board. In that case, the CCP Charter
authorizes the President to appoint the new CCP board to replace the board that no longer
exists,43by filling the vacancies in the board.
Yet pursuant to the CCP Charter, it still is the President that appoints the Board of Trustees when
such board is vacant. The statutory impediment to such appointing authority is the recognition of
very limited circumstances under which the CCP board may be considered as truly vacant.
During deliberations on these petitions, some distress was raised over the prospect that in case only
one person remained on the CCP Board of Trustees, that one person is empowered to appoint the
other members of the Board. Perhaps the notion may strike as counterintuitive, yet it is perfectly
valid under legal consideration considering that this sole remaining member stands as the Board
itself, and not just an individual member thereof. This setup adheres to sound theory that a Board of
Directors/Trustees retains collective force, no matter the number of persons sitting thereon, so long
as the quorum requirements are satisfied.
Indeed, the idea of a one-person board of directors is hardly a flight of whimsy under modern
corporation law. Consider the U.S. state of Delaware, the state most associated with
incorporation. With over half of publicly traded American corporations and over 60% of all
Fortune 500 companies incorporated in Delaware[44], it among all the American states, has the
greatest public interest in the oversight or regulation of corporations.Yet the Delaware General
Corporation Law expressly authorizes a corporation to constitute a board of directors
consisting of only one (1) member.[45] The choice, as expressed in the by-laws or the certificate
of incorporation, is up to the corporation. When a board of 1 director is so authorized, "the 1
director shall constitute a quorum."46Certainly, there is nothing so forlorn with the statutory
prescription of the CCP charter that admits to the possibility of only one trustee acting as the Board.
The law of Delaware, the corporate hub of America, sufficiently defeats any supposition that the
possibility of a one-person CCP Board of Trustees offends good customs, morals, law or public
policy.
Our own Corporation Code does not permit one-person Board of Directors for private
corporations,47 yet it concedes that corporations created by special laws or charters are governed
primarily by the provisions of the charter creating them.48 The determination of the quorum
requirement for chartered corporations is exclusively the prerogative of the legislature, which can
very well impose a one-person board of directors or, as in the case of CCP, permit a situation
whereby a lone remaining director would be empowered to act as the board.
The majority states that this statutory setup of the CCP "makes [it] a self-perpetuating entity." But the
CCP is really no different from private corporations whose boards of directors are, under the
Corporation Code, permitted to fill vacancies in the Board themselves for as long as the remainder of
the board still constitute a quorum.49Considering the clear legislative intent to accord the CCP with a
significant degree of independence, with its chartered guarantee of "autonomy of policy and
operation,"50 the notion should give no offense at all. Yet even if there is wisdom or cause in
preventing the "self-perpetuation" of the CCP Board, the solution lies in legislative amendment. The
majority cannot supplant legislative prerogatives by merely doing away with provisions of law that
meet its aversion. Moreover, short of amending the CCP Charter there are enough anti-graft laws,
government audit controls and other administrative safeguards to check abuse in office and ensure
accountable governance.

My own conclusion is that the means prescribed by the CCP Charter in the appointment of the
members of the CCP board is in accordance with the Appointments Clause, specifically the provision
therein that authorizes Congress to empower the President, the courts and the heads of
departments, agencies, commissions or boards (Boards) to appoint officers of lower rank. The CCP
is an agency, not a Board, and its head is its Board of Trustees. The CCP board is superior in rank
than any of its particular members, and it may thus be authorized by law to fill vacancies by
appointing new members of the board. Should the CCP board be totally vacant, owing to the fact
that no person sits on the board at a given time, then the President is authorized by law to fill the
vacant CCP board by appointment.
While the members of the Endriga Group were "appointed" by President Ramos, who had no
authority to do so, it is also uncontested that the Endriga Group were subsequently elected by the
CCP board to sit on the Board. For that reason, not their "appointment" by President Ramos, they
could be deemed as having validly assumed their office upon their election to the board in 1995, for
the statutory term of four (4) years.
Executive Control and Statutory Restrictions Thereon
There is an even more disturbing implication to the present ruling which the majority barely touches
upon. By ruling against the Endriga Group, and sanctioning their replacement by President Estrada
even though their statutory term had yet to expire, the majority in effect has ruled that the
President may remove officials whose terms have been fixed by law even prior to the
cessation of the terms in office. The legal rationale for this precipitate new rule is not precisely
explained. Pointedly though, the majority refers to the power of the President of executive control to
bolster its conclusion, characterizing such power as "another constitutional impediment to the
implementation of Section 6(b) and (c)" of the CCP Charter.
The power of the President to maintain executive control over executive departments, bureaus and
offices is constitutionally mandated by the Executive Control Clause. 51 Yet as earlier stressed, the
power of the President to make appointments is governed by a different provision, the Appointments
Clause which is complete by itself. If executive control is extended to bear on the power of the
President to make appointments in the executive branch by further expanding it, then the
Appointments Clause would be rendered useless. Clearly, the Constitution authorizes Congress to
vest the power to appoint lower-ranked officials to the heads of departments, agencies, commissions
or boards, (Boards). To insist that such power of appointment so vested in an agency head is
nonetheless circumscribed by executive control would render the provision nugatory.
Yet, may executive control be utilized to justify the removal of public officers within the executive
department notwithstanding statutory restrictions thereon, such as the prescription of a fixed term of
office? To declare that it does would be equivalent to saying that executive control authorizes the
President to violate the laws passed by Congress. And that is not what the Constitution says.
The Executive Control Clause, which enshrines the presidential power of executive control, actually
prescribes two (2) functions to the President.
Sec. 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.
While the majority understandably lays emphasis on the first sentence of the Executive Control
Clause, the second sentence is of equal importance. It emphasizes the cardinal principle that the
President is not above the laws enacted by Congress and is obliged to obey and execute these

laws. The duty of faithful execution of laws is enshrined not only in the Constitution, but also in the
oath of office of the President and Vice-President.52
It is clear that the twin duties prescribed under the Executive Control Clause are of equal value. At
very least, they should be construed in harmony, not antagonism, to each other, so that the power of
control that the President may exercise over executive departments, bureaus and offices should still
stay within the ambit of faithful execution of the Constitution and the laws of the land which the
Constitution itself ordains.
I submit that the members of the CCP board are shielded by law from arbitrary removal by the
President, even if is sought to be justified under the aegis of executive control. The traditional view
that "the power of removal of executive officers [is] incident to the power of appointment" 53 has since
been severely undercut by the U.S. Supreme Court, 54 and is of limited application in this jurisdiction
in light of the constitutional guarantee to the security of tenure of employees in the civil service. 55 The
notion that executive control authorizes the President to remove the members of the CCP board at
his pleasure contravenes not only the CCP Charter but the Constitution itself, not to mention our civil
service laws.
CCP Embraced Under the Civil Service
Section 2(1), Article IX-B of the Constitution states that "[t]he civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the Government, including government owned or
controlled corporations with original charters". It appears to have been the deliberate intent of
the framers of the 1987 Constitution, in specifying the phrase "with original charters," to exclude from
civil service coverage those GOCCs without original charters, meaning those incorporated under the
general corporation law.56 Yet undoubtedly, the CCP was created through an original charter, and is
hence covered by the civil service by mandate of the Constitution. This point has significant impact
on the resolution of this case.
It can be advanced that Ang-Angco v. Castillo57 settles the question in favor of the Endriga Group. In
that case, President Garcia, through his Executive Secretary, rendered a ruling finding a Collector of
Customs guilty of prejudicial conduct and considering him "resigned effective from the date of
notice."58 The action was justified by virtue of the President's power of control over all executive
departments, bureaus and offices as provided for in the 1935 Constitution. Ang-Angco countered
that the Civil Service Act of 1959, a legislative enactment, vests in the Commissioner of Civil Service
the original and exclusive jurisdiction to decide administrative cases against officers and employees
in the classified service such as himself; and that his subsequent removal by order of the President
violated the Civil Service Act. The Court agreed with Ang-angco, holding that such "law which
governs the action to be taken against officers and employees in the classified civil service is binding
upon the President."59
The Court explained why the power of executive control could not supersede a statutory enactment
such as the Civil Service Act of 1959:
Let us now take up the power of control given to the President by the Constitution over all
officers and employees in the executive department which is now invoked by respondents as
justification to override the specific provisions of the Civil Service Act. This power of control is
couched in general terms for it does not set in specific manner its extent and scope. Yes, this
Court in the case of Hebron vs. Reyes, supra, had already occasion to interpret the extent of
such power to mean "the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment
of the former for that of the latter" , to distinguish it from the power of general supervision

over municipal government, but the decision does not go to the extent of including the power
to remove an officer or employee in the executive department. Apparently, the power
merely applies to the exercise of control over the acts of the subordinate and not over
the actor or agent himself of the act. It only means that the President may set aside the
judgment or action taken by a subordinate in the performance of his duties. 60
xxx
Further, the Court in Ang-Angco chose to avoid the ungainly clash between the constitutional power
of executive control and the constitutional guarantee of security of tenure to those in the civil service,
thus:
[T]he strongest argument against the theory of respondents is that it would entirely nullify
and set at naught the beneficient purpose of the whole civil service system implanted in this
Jurisdiction which is to give stability to the tenure of office of those who belong to the
classified service in derogation of the provision of our Constitution which provides that "No
officer or employee in the civil service shall be removed or suspended except for cause as
provided by law" (Section 4, Article XII, Constitution). Here, we have two provisions of our
Constitution which are apparently in conflict, the power of control by the President
embodied in Section 10 (1), Article VII, and the protection extended to those who are
in the civil service of our government embodied in Section 4, Article XII. It is our duty
to reconcile and harmonize these conflicting provisions in a manner that may be given
to both full force and effect and the only logical, practical and rational way is to
interpret them in the manner we do it in this decision. As this Court has aptly said in the
case of Lacson vs. Romero:
". . . To hold that civil service officials hold their office at the will of the
appointing power subject to removal or forced transfer at any time, would
demoralize and undermine and eventually destroy the whole Civil Service
System and structure. The country would then go back to the days of the old
Jacksonian Spoils System under which a victorious Chief Executive, after the
elections could if so minded, sweep out of office, civil service employees differing in
political color or affiliation from him, and sweep in his political followers and
adherents, especially those who have given him help, political or otherwise." (Lacson
vs. Romero, 84 Phil., 740, 754)61
At the same time, the Court considered the difference between the power of control exercised by
President Garcia over his direct appointees vis--vis that over employees belonging to the classified
service.
There is some point in the argument that the power of control of the President may extend to
the power to investigate, suspend or remove officers and employees who belong to the
executive department if they are presidential appointees or do not belong to the classified
service for such can be justified under the principle that the power to remove is inherent in
the power to appoint (Lacson vs. Romero, supra), but not with regard to those officers and
employees who belong to the classified service for as to them that inherent power cannot be
exercised. This is in line with the provision of our Constitution which says that "the Congress
may by law vest the appointment of the inferior officers, in the President alone, in the courts,
or in heads of department" (Article VII, Section 10 (3), Constitution). With regard to these
officers whose appointments are vested on heads of departments, Congress has
provided by law for a procedure for their removal precisely in view of this
constitutional authority.62

Evidently, Ang-Angco lays the precedent for distinguishing between officials whose tenure are
protected under the civil service law, and those who enjoy no such statutory protection. The 1987
Constitution likewise makes it explicit that GOCCs with original charters such as the CCP are
embraced under the civil service. Reference is thus necessary to the provisions of the present civil
service law, particularly the Administrative Code of 1987.
The Administrative Code restates that GOCCs with original charters are within the scope of the civil
service.63 It further classifies positions in the civil service into career service and non-career
service.64 Generally, personnel of GOCCs are classified as career service, provided that they do not
fall under the non-career service. On the other hand, the Administrative Code provides that noncareer service employees under the Administrative Code are characterized by:
The Non-Career Service shall be characterized by (1) entrance on bases other than those of
the usual tests of merit and fitness utilized for the career service; and (2) tenure which is
limited to a period specified by law, or which is coterminous with that of the appointing
authority or subject to his pleasure, or which is limited to the duration of a particular project
for which purpose employment was made.
Included in the non-career service are:
1. Elective officials and their personal or confidential staff;
2. Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of
the President and their personal confidential staff(s);
3. Chairman and Members of Commissions and boards with fixed terms of office and their
personal or confidential staff;
4. Contractual personnel or those whose employment in the government is in accordance
with a special contract to undertake a specific work or job requiring special or technical skills
not available in the employing agency, to be accomplished within a specific period, which in
no case shall exceed one year and performs or accomplishes the specific work or job, under
his own responsibility with a minimum of direction and supervision from the hiring agency;
5. Emergency and seasonal personnel.65
Since the members of the CCP board are appointed to a fixed tenure, the four (4)-year period
specified by the CCP Charter, they may be properly considered as non-career service. Yet, even if
these members fall within non-career service, their right to security of tenure is guaranteed both by
the Constitution and by law.
Section 2. xxx
(3) No officer or employee of the civil service shall be removed or suspended except for
cause provided by law.66
xxx
Sec. 46. Discipline: General Provisions. (a) No officer or employee in the Civil Service shall
be suspended or dismissed except for cause as provided by law and after due process. 67

What are thus the implications of the constitutionally guaranteed right to security of tenure to
non-career service officials of GOCCs with original charter, particularly those whose
appointments are for a fixed term? Simply put, these officials cannot be removed from office
before the expiration of their term without cause, or for causes other than those specified by
either the GOCC's charter, the Administrative Code, or other relevant civil service laws.
Otherwise, their removal is unconstitutional.
An appointing power cannot arbitrarily remove an officer if the tenure is fixed by law, or if the officer
is appointed to hold during the pleasure of some officer or board other than that appointing him. 68 In
the absence of any provision for summary removal, an individual appointed to a post for a fixed term
may be removed prior to the term's expiration only for cause. It is the fixity of the term that destroys
the power of removal at pleasure.69
Under the CCP Charter, the term of a trustee may be terminated "due to termination of term,
resignation, incapacity, death or other cause as may be provided in the By-laws." 70 These are the
causes by law which may cause the dismissal of a member of the CCP board. In this case, the right
of the Rufino Group to sit on the CCP board is premised on the claim that the members of the
Endriga Group vacated their seats before the expiration of the four (4)-year term owing to the
conditionalities made by President Ramos to their appointment. I have already pointed out that
President Ramos did not have the authority to appoint the Endriga Group, but that they still were
validly elected to the Board upon vote by the CCP board. Evidently, the conditionality restricting the
Endriga Group to serve for a period less than the statutory term of four (4) years is invalid, whether
or not it was attached to a valid appointing authority.
Clearly then, the power of the President to remove appointed officials of GOCCs with original
charters, grounded as it could be in the power of "executive control" in the Constitution, is
circumscribed by another constitutional provision. There is no showing that the Endriga Group was
validly removed for legal cause before the expiration of their four (4)-year term. Hence, their removal
is unconstitutional, as is the appointment of the Rufino Group to fill seats to the CCP board that had
not yet become vacant.
CCP Governed by its Statutory Charter
Special considerations must likewise be appreciated owing to the fact that the CCP is a GOCC with
an original charter. The Constitution authorizes the creation or establishment of GOCCs with original
charters.71 Section 6 of the Corporation Code states that "[c]orporations created by special laws or
charters shall be governed primarily by the provisions of the special law or charter creating them or
applicable to them."72
Obviously, since the CCP Charter mandates a four (4)-year term for the members of the CCP board,
such condition is binding as a law governing the CCP. Hence, any measure diminishing a duly
elected trustee's right to serve out the four (4)-year term solely on the basis of the President's
discretion or pleasure runs contrary to law. This is a simple way to look at the issue, and its
starkness does not detract from its inherent validity. Still, a deeper examination into the question
supports the same conclusion.
There is no question that a GOCC with original charter falls within the executive department, hence
generally subject to executive control. At the same time, the fact that its creation is sourced from
legislative will should give cause for pause. GOCCs may be created by the State either through the
legislative routethe enactment of its original charter, or the executive routeits incorporation with
the Securities and Exchange Commission. The discretion to incorporate unchartered government
units falls solely with the executive branch, but the discretion in chartering GOCCs is purely

legislative. In theory, a chartered GOCC can come into being even against the will of the Chief
Executive, as is done if Congress overrides an executive veto of a bill chartering a particular GOCC.
Our laws similarly sustain the theoretical underpinning that a chartered GOCC is a creature of the
legislative branch of government, even as it falls within the executive branch. As noted earlier,
Section 6 of the Corporation Code states that "[c]orporations created by special laws or charters
shall be governed primarily by the provisions of the special law or charter creating them or applicable
to them"73 Thus, it is Congress, and not the executive branch, which determines a chartered GOCC's
corporate structure, purposes and functions. This basic point should be beyond controversy. Yet, the
majority implies that Congress cannot limit or curtail the President's power of control over the
Executive branch, and from that context, declares that a law authorizing the CCP Board of Trustees
to appoint its own members runs afoul with the President's power of control. Evidently, there is a
looming clash between the prerogative of the President to exercise control over the executive
branch, and the prerogative of Congress to dictate through legislation the metes and bounds of a
government corporation with original charter.
The scope of the potential controversy could also extend not only to GOCCs with original charters,
but also to other public offices created by law. Outside of those offices specifically created by the
Constitution itself, the creation and definition of the bureaucracy that constitutes the executive
branch of government is an incident of the legislative power to make laws. The power to create
public offices is inherently legislative,74 and generally includes the power to modify or abolish
it.75
Laws that create public offices or GOCCs are no different from other statutes in that they are all
binding on the Chief Executive. Indeed, while Congress is vested with the power to enact laws, the
President executes the law, executive power generally defined as the power to enforce and
administer the laws.76 The corresponding task of the Chief Executive is to see that every government
office is managed and maintained properly by the persons in charge of it in accordance with
pertinent laws and regulations. Corollary to these powers is the power to promulgate rules and
issuances that would ensure a more efficient management of the executive branch, for so long as
such issuances are not contrary to law.77
Since the creation of public offices involves an inherently legislative power, it necessarily follows that
the particular characteristics of the public office, including eligibility requirements and the nature and
length of the term in office, are also for legislative determination. Hence, laws creating public offices
generally prescribe the necessary qualifications for appointment to the public office and the length of
their terms. The wisdom of such matters is left up to the legislative branch. At the same time, the
power of appointment is executive in character, and the choice of whom to appoint is within the
discretion of the executive branch of government. This setup aligns with traditional notions of checks
and balances the choice whom to appoint resting with the executive branch, but proscribed by the
standards enacted by the legislative. Persons to be appointed to a public office should possess the
prescribed qualifications as may be mandated by Congress.
The same setup governs the removal of officers from public office. The power to remove a public
officer is again executive in nature, but also subject to limitations as may be provided by law.
Ordinarily, where an office is created by statute, it is wholly within the power of Congress, its
legislative power extends to the subject of regulating removals from the office. 78
Even the very definition of "executive control" under the Administrative Code concedes that the
general definition of control may yield to a different prescription under a specific law governing
particular agencies.

SECTION 38. Definition of Administrative Relationships. Unless otherwise expressly


stated in the Code or in other laws defining the special relationships of particular agencies,
administrative relationships shall be categorized and defined as follows:
(1) Supervision and Control. Supervision and control shall include authority to act directly
whenever a specific function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve, reverse or modify
acts and decisions of subordinate officials or units; determine priorities in the execution of
plans and programs. Unless a different meaning is explicitly provided in the specific
law governing the relationship of particular agencies the word "control" shall encompass
supervision and control as defined in this paragraph.79
The charters of GOCCs are specific laws with specific application to the GOCCs they govern. The
Administrative Code itself affirms that "control," as defined by a particular charter, supersedes the
general definition under the Code with respect to the GOCC governed by the charter. This
concession is recognition of the primacy of legislative enactments in the constitution and definition of
public offices within the executive branch of government.
The Authority of Congress to Impose Limitations
On the Exercise of Executive Control
There is another worrisome implication in the majority's reliance on executive control. It connotes
that the legislative branch of government has no power to legislate any form of controls on executive
action, thus effectively authorizing the President to ignore the laws of Congress. This significant
diminution of the plenary power of the legislature to make laws guts the power of Congress to check
and balance the executive branch of government.
The duty of the President "to faithfully execute the laws of the land" places the Chief Executive under
the rule of law.80 The President cannot refuse to carry out a law for the simple reason that in his/her
judgment it will not be beneficial to the people.81 Indeed, the exercise of every aspect of executive
power, whether residual, express, or delegated, is governed by one principle beyond compromise
that such powers be in accordance with law. Executive control, taken to its furthest extreme that it
warrants the unchecked exercise of executive power, can be used to justify the President or his/her
subalterns in ignoring the law, or disobeying the law.
I submit that as a means of checking executive power, the legislature is empowered to impose
reasonable statutory limitations in such exercise, over such areas wherein the legislative jurisdiction
to legislate is ceded. As stated earlier, among such areas within the province of Congress is the
creation of public offices or GOCCs. Even as such public offices or GOCCs may fall within the
control and supervision of the executive branch, Congress has the power, through legislation, to
enact whatever restrictions it may deem fit to prescribe for the public good.
Indeed, there are appreciable limits to what restrictions Congress may impose on public offices
within the Executive Branch. For example, a law prescribing a fixed term for a Cabinet Secretary
which may extend beyond the President's term of office is of dubious constitutional value, since
Cabinet departments are recognized by law and tradition as extensions of the President, and their
heads as alter egos thereof. This concession likewise finds constitutional enshrinement in the fact
that the Appointments Clause vests solely in the President the power to appoint members of the
cabinet, subject only to confirmation by the Commission on Appointments. I likewise recognize that
in the absence of statutory restrictions, the President should be given wide latitude in the selection
and termination of presidential appointees, and discretion to review, reverse or modify the acts of
these officials.

GOCCs with original charters pose special considerations. The very fact that they were created by
legislative enactments denotes the presence of statutory restrictions. At the same time, while
remaining agencies of the State, they are in possession of independent juridical personality
segregate from that of the Government. Indeed, the very corporate character of GOCCs implies a
legislative intent to delegate sovereign functions to an entity that, in legal contemplation, is endowed
with a separate character from the Government. The congressional charter of a GOCC should be
recognized as legislative expression of some degree of independence from the Government reposed
in the GOCC. The charter itself is an assertion of a GOCC's statutory independence from the other
offices in the executive branch.
The comments of Constitutional Commissioner Fr. Joaquin Bernas on the power of control over
GOCCs warrant consideration:
It is submitted [that] the Executive's power of control over government-owned corporations,
which in legal category are not on the same level as executive departments, bureaus, or
offices, is not purely constitutional but largely statutory. The legislature may place them
under the control of the Executive where their functions "partake of the nature of government
bureaus and offices." Unlike executive departments, bureaus or offices, however, which by
constitutional mandate must be under the Executive's control, government-owned
corporations may be removed by the legislature from the Executive's control when the nature
of their functions is changed.82
Even with respect to other public offices, if Congress deems it necessary to vest such a particular
public office with a degree of independence from the executive branch, then the legislative
prescription of conditions to the appointment/removal, including the fixing of a term of office, should
generally be upheld. Indeed, Congress has the right to create public offices. While falling under the
executive branch of government, the legislature may find in its creation such a significant public
purpose as to be accorded a degree of independence from the executive department. This may
especially hold true for quasi-judicial agencies tasked with determining competing claims lodged by
private persons against the executive department. In the United States, the Supreme Court has
upheld the authority of Congress "in creating quasi-legislative or quasi-judicial agencies, to require
them to act in the discharge of their duties independently of executive control and that the
authority includes, as an appropriate incident, power to fix the period during which they shall
continue in office, and to forbid their removal except for cause in the meantime." 83
Unlike the "necessary and proper" clause of the U.S. Constitution, 84 there is no express
characterization in our Constitution as to what laws our legislature should enact. This should not
dissuade the Court from recognizing that Congress has the right to enact laws that are for the public
good, even if they impair the comfort of private citizens or the officials of government. There are valid
legislative purposes for insulating certain agencies of the State from unfettered executive
interference. Congress may create agencies under the executive branch tasked with investigatory or
fact-finding functions, and accord them a necessary degree of independence by assuring tenure to
its members, for example. I submit that such prerogative of Congress is aligned with the principle of
checks and balances, under which the legislature is empowered to prescribe standards and impose
limitations in the exercise of powers vested or delegated to the President. The ruling in the majority
would sadly impair the right of the legislature to impart public offices it creates with safeguards that
ensure independence from executive interference should Congress deem that such independence
serves a necessary public purpose.
The implications are similarly ruinous to the independent corporate personality of GOCCs as
determined and fleshed out by Congress. Their charters are legislative enactments beyond the pale
of the President to amend or repeal. In effect, there is a seeming new rule that the President

may ignore or countermand statutory limitations contained in the charters of GOCCs. The
President may thus abolish chartered GOCCs at whim, appoint persons Congress may have
deemed as unqualified to positions in the GOCC, alter the corporate purposes for which the
GOCC was established, all in the guise of executive control. Executive control may similarly
be justified to alter or deprive statutory rights which may have been vested by Congress to
private persons via the corporate charter. The power of Congress to charter government
corporations would be rendered worthlessan intent hardly justified by the Constitution,
which allocated the power to create GOCCs to Congress.85
CCP Charter a Means of Promoting
An Autonomous Policy on the Arts
Odd as the structure of the CCP may be, its atypical nature was not enacted for the sake of
uniqueness, but for laudable public purposes which the Court should acknowledge. The CCP
Charter, apart from recognizing the CCP's corporate personality, goes as far as mandating that the
CCP "enjoy[s] autonomy of policy and operation."86 While the inherent right of Congress to create
public offices in general, and specifically to charter GOCCs sufficiently justifies the constitutionality of
Section 6 of the CCP Charter. Still, if it is necessary to inquire into the public purpose for prescribing
the unique setup of the CCP, I submit that the mandated autonomy of the CCP is in accord with
constitutional principles that should be upheld and promoted.
The Constitution provides that "arts and letters shall enjoy the patronage of the State" 87 and "[t]he
state shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture
based on the principle of unity in diversity in a climate of free artistic and intellectual
expression."88 More crucially, artistic and intellectual expression is encompassed in free expression
guaranteed by the Bill of Rights.89 Clearly, art and culture, in constitutional contemplation, is not the
product of collectivist thought like the prescribed social realism in Stalin's Soviet Union, but of free
individual expression consonant to the democratic ideal.
The assurance of policy and operational autonomy on the CCP is aligned with these constitutional
purposes. Government-sponsored art is susceptible to executive diktat, especially to countermand
unpopular art or to dilute its potency to the point of innocuousness. Indeed, executive control left
unhampered could allow the executive branch to impose its own notions of what art and culture
should be, and to block the art forms that do not conform to its vision. Given the paramount
constitutional protection guaranteed to artistic expression, such executive interference would
contravene constitutional rights. Such interference could be enforced by the executive through a
Board of Directors whose subservience could be guaranteed by their staying in office solely by
pleasure of the President. Even without the autonomy granted to the CCP in its charter, the CCP as
a government agency would still be precluded from denigrating any person's right to free expression.
But the fact that the legislative charter did put into operation safeguards that promote a climate of
artistic independence should be lauded and upheld as within the prerogative of the legislature to
enact. There is no higher public purpose in the formulation of laws than to promote constitutional
values.
I could not improve on the following disquisition of Justice Puno on the important role the CCP has
played in our development as a nation:
The CCP Complex is the only area in the Philippines that is fully devoted to the growth and
propagation of arts and culture. It is the only venue in the country where artists, Filipino and
foreign alike, may express their art in its various forms, be it in music, dance, theater, or in
the visual arts such as painting, sculpture and installation art or in literature such as prose,
poetry and the indigenous oral and written literary forms. The theaters and facilities of the

Complex have been utilized for the staging of cultural presentations and for the conduct of
lectures and demonstrations by renowned visiting artists. The wide open spaces of the
Complex are the only open spaces in Metropolitan Manila that have been used to
accommodate huge crowds in cultural, artistic and even religious events.
But the fulfillment of CCP's mandate did not start and end in Manila Bay. The CCP, through
its Board of Trustees, has reached out to the provinces through programs, scholarships and
national competitions for young artists. It has helped young artists hone their craft and
develop their creativity and ingenuity. It has also exposed the Filipino artists to foreign art
and advanced instruction, and thereby develop world-class artists, earning for the Philippines
the respect and admiration of other countries. The CCP has likewise exposed the ordinary
Filipino to the national culture. It has enhanced public interest in Philippine art in various
forms, in our history, in our indigenous and modern culture, and at the same time, enriched
us with the culture of other countries. The CCP has indeed emerged as a dynamic force in
the promotion of the country's artistic and cultural heritage and the development of new and
modern art forms. Through the years, it has helped raise the Filipino consciousness to our
nationhood, and in the process, inculcated love for our country The state recognizes the
vital role arts and culture play in national development. Indeed, a nation that would give up
its cultural patrimony in exchange for economic and material pursuits cannot but be doomed
as a "people without a soul."90 The Cultural Center of the Philippines has helped us capture
this "soul."91
Art thrives within an atmosphere of free thought. The CCP Charter, by ensuring political and
operational autonomy, ferments expression free from prior restraint or subsequent punishment from
the executive department. There is a constitutional purpose to the independence attendant to the
unique corporate structure of the CCP. There is constitutional authority for the legislature to charter a
government corporation with reasonable safeguards of independence from the executive branch.
And there is a constitutional duty for the President to obey and execute the laws enacted by
Congress.
Conclusion
The ruling of the Court today is boon for those quarters which wish to concede to the presidency as
much power as there can be. Sadly, it comes at the expense of the time-honored prerogative of
Congress to legislate laws. The power of Congress to enact legislative charters with any sort of
restrictions that would be enforced is now severely put in doubt. The power of Congress to fix the
terms of the offices it creates is now controvertible. The President has been given the green light to
remove at will officials whose terms of offices are set by law, without regard to the constitutional
guarantee of security of tenure to these officials. All these wrought simply because for the majority,
the CCP Board of Trustees somehow transubstantiated itself into the CCP itself.
I have consistently advocated a generous interpretation of presidential authority, owing to my firm
belief in the potency of the inherent and residual powers implicit in the highest office of the
land.92 Still, the Constitution is allergic to an omnipotent presidency, and thus, the law is the limit.
This is a live tiger that the majority has set loose today, one utterly capable of inflicting great pain on
the delicate balance that safeguards the separation of powers.
DANTE O. TINGA
Associate Justice

Footnotes
1

See Section 2 of PD 15.

PD 15, Sec. 2(b).

Id., Sec. 2(c) to (e).

Id., Sec. 3 in relation to Sec. 6.

Id.

Zenaida R. Tantoco had expressed "utter lack of interest" in the case since she did not take
her oath of office or assumed the position of CCP trustee at any time.
6

Penned by Associate Justice Conchita Carpio Morales (now Associate Justice of this
Court), with Associate Justices Artemon D. Luna and Bernardo P. Abesamis, concurring.
7

Rollo (G.R. No. 139554), pp. 100-101.

Later amended by Presidential Decree Nos. 179, 1444, 1815, 1825, and Executive Order
No. 1058 dated 10 October 1985.
9

10

CA rollo, p. 331-A.

11

Id.

12

Id.

13

Rollo (G.R. No. 139554), pp. 28-31.

14

Rollo (G.R. No. 139565), p. 19.

15

Rollo (G.R. No. 139554), p. 714

Joya v. Presidential Commission on Good Government, G.R. No. 96541, 24 August 1993,
225 SCRA 568.
16

17

Id.

18

Id.

The requisites before courts will assume jurisdiction over a constitutional question are (1)
there must be an actual case or controversy involving a conflict of rights susceptible of
judicial determination; (2) the constitutional question must be raised by a proper party; (3)
the constitutional question must be raised at the earliest opportunity; and (4) the resolution of
the constitutional question must be necessary to the resolution of the case. (Board of
Optometry v. Hon. Colet, 328 Phil. 1187 [1996])
19

20

See Calderon v. Carale, G.R. No. 91636, 23 April 1992, 208 SCRA 254.

21

Endencia v. David, 93 Phil. 696 (1953).

22

See Santos v. Macaraig, G.R. No. 94070, 10 April 1992, 208 SCRA 74.

There is a fifth group of officers whose appointments are vested by the Constitution in the
Supreme Court and the Constitutional Commissions. (Constitution, Art. VIII, Sec. 5[6] and
Art. IX-A, Sec. 4)
23

24

It reads:

The President shall nominate and, with the consent of a Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval
captain and all other officers of the Government whose appointments are not herein
otherwise provided for by law, and those whom he may be authorized by law to appoint. The
Congress may by law vest the appointment of inferior officers in the President alone,
in the courts, or in the heads of departments. (Emphasis supplied)
II J. Bernas, The Constitution of the Republic of the Philippines, A Commentary 194-195
(1988).
25

26

THE PRESIDENT. Commissioner Bennagen is recognized.


MR. BENNAGEN. Anterior amendment on page 8, line 1, Madam President, which I
indicated during the period of interpellations regarding the use of the word "inferior." I
understand from the Commissioners that we can delete "inferior" without sacrificing
its meaning.
MR. REGALADO. So line 1 would now read: "of OTHER officers LOWER IN RANK."
MR. BENNAGEN. Thank you, Madam President.
MR. REGALADO. The Committee accepts the amendment.
THE PRESIDENT. The Committee has accepted the amendment.
Is there any objection to change "inferior" to "OTHER officers "LOWER IN RANK"?
(Silence) The Chair hears none; the amendment is approved.
Let us go back to the amendment of Commissioner de los Reyes.
MR. DE LOS REYES. Does the Committee accept my proposed amendment?
MR. REGALADO. The amendment of Commissioner de los Reyes is to change
"courts" to "MEMBERS OF THE JUDICIARY."
FR. BERNAS. It is a little vague if we just say "in the MEMBERS OF THE
JUDICIARY" because we have collegiate and noncollegiate bodies. So for instance,
if we take the case of the Supreme Court when we say "MEMBERS OF THE
JUDICIARY," which of the members of the Supreme Court would have the appointing
authority?

MR. DE LOS REYES. But the point is that the first sentence refers to the President
alone; it does not say "executive." And the last portion refers to "the heads of
departments" because these are persons who appoint, but the middle portion refers
to "courts" which do not appoint. How can the courts appoint?
FR. BERNAS. How about "in the HEADS OF courts"?
THE PRESIDENT. Commissioner Concepcion is here now, may we seek his opinion
on this matter? May we ask Commissioner Regalado to kindly inform Commissioner
Concepcion of the issue.
Commissioner Concepcion is recognized.
MR. CONCEPCION. I suppose that insofar as collegiate courts are concerned,
certain rules will be adopted by the Supreme Court. Under the present setup, court
employees are actually appointed by the Chief Justice of the Supreme Court. I
suppose in this case, when we speak of courts, it refers to the judges presiding in
courts. After all, the presiding judge acts in behalf of the court. These are court
employees, and whoever presides performs the administrative functions
corresponding to his particular station. Insofar as clerks of courts are concerned,
generally, they are appointed by the Supreme Court in agreement with collegiate
courts through the passage of a resolution that is deemed to be an appointment by
the court concerned. So I think we can retain the word "courts" since it has been
used for so long in the past, and it has an established connotation.
MR. DE LOS REYES. I submit if that is the explanation, although I find the wordings
inconsistent. It refers to the President and heads of departments as officers, but it
does not say "or in the Executive Department." The middle portion refers to courts,
and I do not think the courts can appoint. But if the Committee wants to retain this in
this particular Article, I submit.
Thank you, Madam President.
THE PRESIDENT. Thank you.
Is Commissioner de los Reyes insisting on his amendment?
MR. DE LOS REYES. I am not insisting, Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. On page 8, line 3, change the period (.) after "departments" to a
comma (,) and add AGENCIES, COMMISSIONS, OR BOARDS. This is just to
complete the enumeration in the 1935 Constitution from which this additional clause
was taken.
THE PRESIDENT. Does the Committee accept?
MR. SARMIENTO. Just a point of clarification, Madam President. I think this was
taken from the 1973 Constitution. The 1935 Constitution speaks only of "heads of
departments."

MR. DAVIDE. Yes, it is the 1973 Constitution rather.


THE PRESIDENT. Does the Committee need time to consider?
MR. SUMULONG. We accept the amendment.
MR. ROMULO. The Committee has accepted the amendment, Madam President.
THE PRESIDENT. Is there any objection to the addition of the words "AGENCIES,
COMMISSIONS, OR BOARDS" on line 3, page 8? (Silence) The Chair hears none;
the amendment is approved. (II Record, Constitutional Commission 522-523 [31 July
1986])
For the role of the deliberations of the Constitutional Commission in determining the
framers' intent, see Development Bank of the Philippines v. COA, 424 Phil. 411 (2002).
27

28

Bermudez v. Executive Secretary Torres, 370 Phil. 769 (1999).

29

Section 5, Article VIII of the 1987 Constitution provides:


The Supreme Court shall have the following powers:
xxxx
(6) Appoint all officials and employees of the Judiciary in accordance with the Civil
Service Law.

Section 4, Article IX-A of the 1987 Constitution provides: "The Constitutional Commissions
shall appoint their officials and employees in accordance with law."
30

31

See note 26.

32

Constitution (1935), Art. VII, Sec. 10(3).

33

Constitution (1973), Art. VII, Sec. 10.

34

Supra note 26 at 523.

35

National Electrification Administration v. COA, 427 Phil. 464 (2002).

36

Id.

Department of Agrarian Reform Adjudication Board (DARAB) v. Lubrica, G.R. No. 159145,
29 April 2005, 457 SCRA 800; San Miguel Corporation v. Secretary of Labor, No. L-39195,
16 May 1975, 64 SCRA 56.
37

38

Constitution, Art. X, Sec. 2.

39

Id., Secs. 3 and 5.

40

Id., Sec. 4.

41

Administrative Code, Book III, Title II, Chapter 8, Section 23.

Mondano v. Silvosa, 97 Phil. 143 (1955); Section 38, paragraph 1, Chapter 7, Book IV of
the Administrative Code of 1987 provides:
42

Supervision and Control. Supervision and control shall include authority to act
directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate officials or units;
determine priorities in the execution of plans and programs; and prescribe standards,
guidelines, plans and programs. Unless a different meaning is explicitly provided in
the specific law governing the relationship of particular agencies, the word "control"
shall encompass supervision and control as defined in this paragraph. (Emphasis
supplied)
43

Constitution, Art. VII, Sec. 1; Villena v. Secretary of the Interior, 67 Phil. 451 (1939).

44

Supra note 10.

"Nature. The corporation hereby created shall be a non-municipal public corporation. Its
property, real and personal, shall belong to and be managed exclusively by the corporation
for the benefit of the Filipino people. Any income that may be derived from its projects and
operations and any contributions it may receive shall be invested in a Cultural Development
Fund set up to attain the objectives of this Act, or utilized for such purposes as its governing
board may decide upon, consistent with the purposes herein provided. It shall enjoy
autonomy of policy and operation but may seek the assistance and cooperation of various
government offices in pursuit of its objectives." (Emphasis supplied)
45

TINGA, J.
Issued by President Ferdinand Marcos on 5 October 1972 in the exercise of his legislative
powers during martial law. The legislative character of the CCP charter is beyond dispute,
even by the majority.
1

See Sec. 3, P.D No. 15, as amended (CCP Charter).

Per Decision dated 14 May 1999 in CA G.R. SP No. 50272, penned by Justice (now
Supreme Court Justice) Conchita Carpio-Morales, concurred in by Justices Artemon Luna
and Bernardo Abesamis.
3

Section 6, CCP Charter.

Infra.

Decision, infra.

Section 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.
7

Decision, infra.

Those officers whose appointment is vested to the President by the Constitution include the
Chairman and Commissioners of the three constitutional commissions (Section 1(2), Article
IX-B; Section 1(2), Article IX-C; Section 1(2), Article IX-D), the members of the Judicial and
Bar Council (Section 8(2), Article VIII), the Ombudsman and his Deputies (Section 9, Article
XI), members of the regional consultative commissions (Section 18, Article X), and formerly,
sectoral representatives (Section 7, Article XVIII). See also Sarmiento v. Mison, G.R. No. L79974, 17 December 1987, 156 SCRA 549.
9

10

Decision, infra.

11

Decision, infra.

For emphasis and contrast, in this disquisition the term board used in the Appointments
Clause is spelled with a capital letter "B" (Board) while the board of trustees/directors in
government corporations is spelled with a small letter "b" (board).
12

13

See Section 16, Article XII, Constitution.

14

See Section 2(4), Administrative Code of 1987.

Black's Law Dictionary, p. 618; citing Commissioners of State Ins. Fund v. Dinowitz, 179
Misc. 278, 39 N.Y.S.2d 34, 38.
15

16

Ibid.

17

Nosictur a sociis.

"The rule is too well-settled to require any citation of authorities that the word "or" is a
disjunctive term signifying dissociation and independence of one thing from each of the other
things enumerated unless the context requires a different interpretation." People v. Martin,
G.R. No. 33487, 31 May 1971, 39 SCRA 340, 346.
18

"It is to be remembered that the law makes the proprietor, lessee or operator, of the
amusement place liable for the amusement tax, the three tax payers being connected by the
disjunctive conjunction "or," thereby positively implying that the tax should be paid either by
the proprietor, the lessee, or the operator, as the case may be, singly and not by all at one
and the same time." CIR v. Manila Jockey Club, Inc., 99 Phil. 289, 296 (1956).
19

20

Supra note 4.

21

G.R. No. 139554 rollo, p. 39.

22

Section 8, CCP Charter. Emphasis supplied.

23

See G.R. No. 139554, rollo, p. 211. Emphasis supplied.

See J. Campos, Jr. and M.C. Campos, I The Corporation Code: Comments, Notes and
Selected Cases, 1990 ed., at 340.
24

See Vicente v. Geraldez, L-32473 & 32483, 31 July 1973, 52 SCRA 210, 227; citing Board
of Liquidators v. Kalaw, L-18805, Aug. 14, 1967, 20 SCRA 987.
25

"Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is
to be adopted." See CIR v. TMX Sales, G.R. No. 83736, 15 January 1992, 205 SCRA 184,
188; Cosico, Jr. v. NLRC, 338 Phil. 1080, 1089; Southern Cross Cement Corporation v.
PHILCEMCOR, G.R. No. 158540, 8 July 2004, 434 SCRA 65, 89.
26

27

Supra note 21.

28

Ibid.

Decision, infra. I agree with the Decision that the authority of Congress to authorize
appointments by the heads of departments, commissions, agencies or bureaus pertain only
to those junior officers within their respective enclaves. Thus, the Chairperson of the National
Police Commission cannot be authorized by law to appoint junior officials of the Dangerous
Drugs Board.
29

30

Edmond v. U.S., 520 U.S. 651 (1997).

31

338 Phil. 507 (1997).

32

Id. at 520.

33

Ibid.

34

See Section 5(6), Article VIII, Constitution.

35

See Section 2, Article IX-C and Section 2, Article IX-D, Constitution.

See Malonso v. Principe, A.C. No. 6289, 16 December 2004, 447 SCRA 1, 12-13; which
discussed the collegial nature of the IBP Board of Governors:
36

"Relevantly, Sec. 6, Rule 139-A of the Rules of Court provides in part:


Sec. 6. Board of Governors. the Integrated Bar shall be governed by a Board of
Governors. Nine Governors shall be elected by the House of Delegates from the nine
Regions on the representation basis of one Governor from each Region. . . .
xxx xxx xxx
The Board shall meet regularly once every three months, on such date and at such
time and place as it shall designate. A majority of all the members of the Board shall
constitute a quorum to do business. . . .
From these provisions, it is clear that before a lawyer may be suspended from the
practice of law by the IBP, there should be (1) a review of the investigator's report; (2)
a formal voting; and (3) a vote of at least five (5) members of the Board. The
rationale for this rule is simple: a decision reached by the Board in compliance
with the procedure is the official decision of the Board as a body and not
merely as the collective view of the individual members thereof. This is in

keeping with the very nature of a collegial body which arrives at its decisions
only after deliberation, the exchange of views and ideas, and the concurrence
of the required majority vote. (Ibid, at 12-13; citing Consing v. Court of Appeals,
G.R. No. 78272, 29 August 1989, 177 SCRA 14, 22. Emphasis supplied)
19 C.J.S. 33 (1940 ed.), citing Mcwhirter v. Washington Royalties Co., 152 A. 220, 17 Del.
Ch. 243; In re: Vicksburg Bridge & Terminal Co., D.C. Miss., 22 F. Supp. 490.
37

38

S. Bainbridge, Corporation Law and Economics (2002 ed.), p. 230.

39

See 8.08, Model Corporation Business Act.

See Conde v. National Tobacco Corp., 110 Phil. 717, 721 (1961); citing 6 C.J.S. 89. See
also H. de Leon and H. de Leon Jr., The Law on Public Officers and Election Law, 3rd.ed.,
1997, at 48.
40

F. MechEm, A Treatise on the Law of Public Offices and Officers, 1890 ed., at 61; citing
Stocking v. State, 7 Ind. 326.
41

42

Supra note 4.

43

Ibid.

See "Division of Corporations, State of Delaware," http://www.state.de.us/corp/


default.shtml (Last visited, 18 July 2006).
44

See 141(b), Subchapter IV. Directors and Officers, Chapter 1. General Corporation, Title
8. Corporations, Delaware Code.
45

46

Id.

See Section 14, Corporation Code, which fixes the number of directors or trustees as not
less than five (5), and not more than fifteen (15).
47

48

See Section 4, Corporation Code.

49

See Section 29, Corporation Code.

50

See Section 3, CCP Charter.

51

See Section 17, Article VII, Constitution; infra.

52

See Section 5, Article VII.

53

Myers v. United States, 272 U.S. 52, 119 (1926)

See Humphrey's Executor v. United States, 295 U.S. 602 (1935); Wiener v. United States,
357 U.S. 349 (1958)
54

55

See Section 2(3), Article IX-B, Constitution.

See J. Bernas, The Intent of the 1986 Constitution Writers, 1995 ed., at 596-98. The
exclusion of unchartered GOCCs from civil service coverage was in apparent adverse
reaction to the Court's ruling inNational Housing Authority v. Juco, G.R. No. 64313, 17
January 1985, 134 SCRA 172, that the Civil Service covered all GOCCs irrespective of the
manner of their creation. NHA v. Juco, id., at 182.
56

57

118 Phil. 1468. (1963)

58

Id. at 1472.

59

Id. at 1477.

60

Id. at 1478. Emphasis supplied.

61

Id. at 1479-80. Emphasis supplied.

62

Id. at 1480.

63

See Section 6, Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987.

64

Section 6(2), Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987.

Section 9, Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987. A similar


provision may be found in Section 6, Pres. Decree No. 807.
65

66

Section 2(2), Article IX(B), Constitution.

67

Section 46, Chapter 2, Subtitle A, Title I, Book V, Administrative Code of 1987.

68

Mechem, supra note 41, at 284.

69

H. de Leon and H. de Leon Jr., supra note 40, at 338; citing 63 Am. Jur. 2d at 826-827.

70

Section 6(b), CCP Charter.

71

See Section 16, Article XII, Constitution.

72

See Sec. 6, Corporation Code.

73

See Sec. 6, Corporation Code.

Castillo v. Pajo, 103 Phil. 515, 519 (1958); Llanto v. Dimaporo, et al., G.R. No. L-21905, 31
March 1966, 16 SCRA 599, 604; U.P. Board of Regents v. Razul, G.R. No. 91551, 16 August
1991, 200 SCRA 685, 693.
74

De la Llana v. Alba, G.R. No. L-57883, 12 March 1982, 112 SCRA 294, 345, J. Barredo,
concurring.
75

76

Ople v. Torres, G.R. No. 127685, 23 July 1998, 293 SCRA 141, 150.

77

Phividec v. Capitol Steel, G.R. No. 155692, 23 October 2003, 414 SCRA 327, 332-333.

78

See H. de Leon and H. de Leon Jr., supra note 40, at 337.

79

Section 38, paragraph 1, Chapter 7, Book IV, Administrative Code of 1987.

80

See Gonzales v. Henchanova, 118 Phil. 1065, 1089, J. Barrerra, concurring.

81

J. Bernas, The Constitution of the Republic of the Philippines, 2003 ed., at 864.

82

Id. at 863.

83

Humphrey's Executor v. United States, 295 U.S. 602, 629. (1935).

84

See Section 8(18), Article I, U.S. Constitution.

See Section 16, Article XII, which reads: "Government owned or controlled corporations
may be created or established by special charters in the interest of the common good and
subject to the test of economic viability." A charter has been defined as an act of legislature
creating a business corporation, or creating and defining the franchise of a corporation." See
Black's Law Dictionary, p. 236.
85

86

See Section 3, CCP Charter.

87

See Section 15, Article XIV, Constitution.

88

See Section 14, Article XIV, Constitution.

89

See Section 4, Article III, Constitution.

Republic v. Court of Appeals, infra, citing El Filibusterismo, Guerrero translation, p. 49


[1965].
90

91

Republic v. Court of Appeals, 359 Phil. 530, 667-668 (1998), J. Puno, concurring.

See Sanlakas v. Executive Secretary, G.R. No. 159085, 3 February 2004, 421 SCRA 656;
Separate Opinion, La Bugal-B'laan Tribal Association, Inc. v. Ramos, G.R. No. 127882, 1
December 2004, 445 SCRA 1, 435-463; Constantino v. Cuisia, G.R. No. 106064, 13 October
2005, 472 SCRA 505; Dissenting Opinion,David v. Ermita, G.R. Nos. 171396, et al., 3 May
2006.
92

Republic of the Philippines

Supreme Court
Manila

EN BANC
DATU MICHAEL ABAS KIDA,
in his personal capacity, and in
representation of
MAGUINDANAO FEDERATION
OF AUTONOMOUS
IRRIGATORS ASSOCIATION,
INC., HADJI MUHMINA J.
USMAN, JOHN ANTHONY L.
LIM, JAMILON T. ODIN, ASRIN
TIMBOL JAIYARI, MUJIB M.
KALANG, ALIH AL-SAIDI J.
SAPI-E, KESSAR DAMSIE
ABDIL, and BASSAM ALUH
SAUPI,
Petitioners,
- versus SENATE OF THE PHILIPPINES,
represented by its President JUAN
PONCE ENRILE, HOUSE OF
REPRESENTATIVES, thru
SPEAKER FELICIANO
BELMONTE, COMMISSION ON
ELECTIONS, thru its Chairman,
SIXTO BRILLANTES, JR.,
PAQUITO OCHOA, JR., Office of
the President Executive Secretary,
FLORENCIO ABAD, JR.,
Secretary of Budget, and
ROBERTO TAN, Treasurer of the
Philippines,
Respondents.
X----------------------X
BASARI D. MAPUPUNO,
Petitioner,
- versus SIXTO BRILLANTES, in his

G.R. No. 196271

G.R. No. 196305

capacity as Chairman of the


Commission on Elections,
FLORENCIO ABAD, JR. in his
capacity as Secretary of the
Department of Budget and
Management, PAQUITO
OCHOA, JR., in his capacity as
Executive Secretary, JUAN
PONCE ENRILE, in his capacity
as Senate President, and
FELICIANO BELMONTE, in his
capacity as Speaker of the House
of Representatives,
Respondents.
X---------------------XREP. EDCEL C. LAGMAN,
Petitioner,
- versus PAQUITO N. OCHOA, JR., in his
capacity as the Executive
Secretary, and the COMMISSION
ON ELECTIONS,
Respondents.
X---------------------XALMARIM CENTI TILLAH,
DATU
CASAN CONDING CANA, and
PARTIDO DEMOKRATIKO
PILIPINO LAKAS NG BAYAN
(PDP-LABAN),
Petitioners,
- versus THE COMMISSION ON
ELECTIONS, through its
Chairman, SIXTO
BRILLANTES, JR., HON.
PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary,

G.R. No. 197221

G.R. No. 197280

HON. FLORENCIO B. ABAD,


JR., in his capacity as Secretary of
the Department of Budget and
Management, and HON.
ROBERTO B. TAN, in his
capacity as Treasurer of the
Philippines,
Respondents.
X---------------------XATTY. ROMULO B.
MACALINTAL,
Petitioner,
- versus G.R. No. 197282
COMMISSION ON ELECTIONS
and THE OFFICE OF THE
PRESIDENT, through
EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR.,
Respondents.
X---------------------XLOUIS BAROK C. BIRAOGO,
Petitioner,
- versus THE COMMISSION ON
ELECTIONS and EXECUTIVE
SECRETARY PAQUITO N.
OCHOA, JR.,
Respondents.
X---------------------XJACINTO V. PARAS,
Petitioner,

- versus -

G.R. No. 197392

G.R. No. 197454


Present:

EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., and
the COMMISSION ON
ELECTIONS,
Respondents.
x-----------------------------------------x
MINORITY RIGHTS FORUM,
PHILIPPINES, INC.,
Respondents-Intervenor.

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,**
REYES, and
PERLAS-BERNABE, JJ.
Promulgated:

February 28, 2012


x-----------------------------------------------------------------------------------------x
RESOLUTION
BRION, J.:
We resolve: (a) the motion for reconsideration filed by petitioners Datu
Michael Abas Kida, et al. in G.R. No. 196271; (b) the motion for reconsideration
filed by petitioner Rep. Edcel Lagman in G.R. No. 197221; (c) the ex abundante
ad cautelam motion for reconsideration filed by petitioner Basari Mapupuno in
G.R. No. 196305; (d) the motion for reconsideration filed by petitioner Atty.
Romulo Macalintal in G.R. No. 197282; (e) the motion for reconsideration filed by
petitioners Almarim Centi Tillah, Datu Casan Conding Cana and Partido
Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the manifestation
and motion filed by petitioners Almarim Centi Tillah, et al. in G.R. No. 197280;
and (g) the very urgent motion to issue clarificatory resolution that the temporary
restraining order (TRO) is still existing and effective.

These motions assail our Decision dated October 18, 2011, where we upheld
the constitutionality of Republic Act (RA) No. 10153. Pursuant to the
constitutional mandate of synchronization, RA No. 10153 postponed the regional
elections in the Autonomous Region in Muslim Mindanao (ARMM) (which were
scheduled to be held on the second Monday of August 2011) to the second Monday
of May 2013 and recognized the Presidents power to appoint officers-in-charge
(OICs) to temporarily assume these positions upon the expiration of the terms of
the elected officials.
The Motions for Reconsideration
The petitioners in G.R. No. 196271 raise the following grounds in support of their
motion:
I.

THE HONORABLE COURT ERRED IN CONCLUDING THAT THE


ARMM ELECTIONS ARE LOCAL ELECTIONS, CONSIDERING
THAT THE CONSTITUTION GIVES THE ARMM A SPECIAL STATUS
AND IS SEPARATE AND DISTINCT FROM ORDINARY LOCAL
GOVERNMENT UNITS.

II.

R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.

III.

THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A.


9054) ARE NOT IRREPEALABLE LAWS.

IV.

SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE


SECTION 18, ARTICLE X OF THE CONSTITUTION.

V.

BALANCE OF INTERESTS TILT IN FAVOR OF THE DEMOCRATIC


PRINCIPLE[.][1]

The petitioner in G.R. No. 197221 raises similar grounds, arguing that:
I.

THE ELECTIVE REGIONAL EXECUTIVE AND LEGISLATIVE


OFFICIALS OF ARMM CANNOT BE CONSIDERED AS OR
EQUATED WITH THE TRADITIONAL LOCAL GOVERNMENT
OFFICIALS IN THE LOCAL GOVERNMENT UNITS (LGUs)
BECAUSE (A) THERE IS NO EXPLICIT CONSTITUTIONAL
PROVISION ON SUCH PARITY; AND (B) THE ARMM IS MORE
SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND
AUTONOMY, AND CONSEQUENTLY IS A CLASS OF ITS OWN
APART FROM TRADITIONAL LGUs.

II.

THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL


MANDATE FOR AN ELECTIVE AND REPRESENTATIVE
EXECUTIVE DEPARTMENT AND LEGISLATIVE ASSEMBLY IN
ARMM INDUBITABLY PRECLUDES THE APPOINTMENT BY THE
PRESIDENT
OF
OFFICERS-IN-CHARGE
(OICs),
ALBEIT
MOMENTARY OR TEMPORARY, FOR THE POSITIONS OF ARMM
GOVERNOR, VICE GOVERNOR AND MEMBERS OF THE
REGIONAL ASSEMBLY.

III.

THE PRESIDENTS APPOINTING POWER IS LIMITED TO


APPOINTIVE OFFICIALS AND DOES NOT EXTEND TO ELECTIVE
OFFICIALS EVEN AS THE PRESIDENT IS ONLY VESTED WITH
SUPERVISORY POWERS OVER THE ARMM, THEREBY NEGATING
THE AWESOME POWER TO APPOINT AND REMOVE OICs
OCCUPYING ELECTIVE POSITIONS.

IV.

THE CONSTITUTION DOES NOT PROSCRIBE THE HOLDOVER OF


ARMM ELECTED OFFICIALS PENDING THE ELECTION AND
QUALIFICATION OF THEIR SUCCESSORS.

V.

THE RULING IN OSMENA DOES NOT APPLY TO ARMM ELECTED


OFFICIALS WHOSE TERMS OF OFFICE ARE NOT PROVIDED FOR
BY THE CONSTITUTION BUT PRESCRIBED BY THE ORGANIC
ACTS.

VI.

THE REQUIREMENT OF A SUPERMAJORITY OF VOTES IN THE


HOUSE OF REPRESENTATIVES AND THE SENATE FOR THE
VALIDITY OF A SUBSTANTIVE AMENDMENT OR REVISION OF
THE ORGANIC ACTS DOES NOT IMPOSE AN IRREPEALABLE
LAW.

VII.

THE REQUIREMENT OF A PLEBISCITE FOR THE EFFECTIVITY


OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE
ORGANIC ACTS DOES NOT UNDULY EXPAND THE PLEBISCITE
REQUIREMENT OF THE CONSTITUTION.

VIII.

SYNCHRONIZATION OF THE ARMM ELECTION WITH THE


NATIONAL AND LOCAL ELECTIONS IS NOT MANDATED BY THE
CONSTITUTION.

IX.

THE COMELEC HAS THE AUTHORITY TO HOLD AND CONDUCT


SPECIAL ELECTIONS IN ARMM, AND THE ENACTMENT OF AN
IMPROVIDENT AND UNCONSTITUTIONAL STATUTE IS AN
ANALOGOUS CAUSE WARRANTING COMELECS HOLDING OF
SPECIAL ELECTIONS.[2] (italics supplied)

The petitioner in G.R. No. 196305 further asserts that:


I.

BEFORE THE COURT MAY CONSTRUE OR INTERPRET A


STATUTE, IT IS A CONDITION SINE QUA NON THAT THERE BE
DOUBT OR AMBIGUITY IN ITS LANGUAGE.

THE

TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND


UNAMBIGUOUS: THEY REFER TO THE 1992 ELECTIONS AND
TURN-OVER OF ELECTIVE OFFICIALS.
IN THUS RECOGNIZING A SUPPOSED INTENT OF THE FRAMERS,
AND APPLYING THE SAME TO ELECTIONS 20 YEARS AFTER,
THE
HONORABLE
SUPREME
COURT
MAY
HAVE
VIOLATED THE FOREMOST
RULE
IN
STATUTORY
CONSTRUCTION.
xxxx

II.

THE HONORABLE COURT SHOULD HAVE CONSIDERED THAT


RA 9054, AN ORGANIC ACT, WAS COMPLETE IN ITSELF. HENCE,
RA 10153 SHOULD BE CONSIDERED TO HAVE BEEN ENACTED
PRECISELY TO AMEND RA 9054.

III.

THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS


ERROR IN DECLARING THE 2/3 VOTING REQUIREMENT
SET FORTH IN RA 9054 AS UNCONSTITUTIONAL.

IV.

THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS


ERROR IN HOLDING THAT A PLEBISCITE IS NOT NECESSARY IN
AMENDING THE ORGANIC ACT.

xxxx

xxxx

xxxx
V.

xxxx

THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN


DECLARING THE HOLD-OVER OF ARMM ELECTIVE OFFICIALS
UNCONSTITUTIONAL.

VI.

THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN


UPHOLDING THE APPOINTMENT OF OFFICERS-IN-CHARGE.
[3]
(italics and underscoring supplied)

The petitioner in G.R. No. 197282 contends that:


A.
ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF OICs
FOR THE REGIONAL GOVERNMENT OF THE ARMM IS NOT
UNCONSTITUTIONAL TO BEGIN WITH, SUCH APPOINTMENT OF OIC
REGIONAL OFFICIALS WILL CREATE A FUNDAMENTAL CHANGE IN
THE BASIC STRUCTURE OF THE REGIONAL GOVERNMENT SUCH
THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED TO A
PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS PEOPLE, WHICH
PLEBISCITE REQUIREMENT CANNOT BE CIRCUMVENTED BY SIMPLY
CHARACTERIZING THE PROVISIONS OF R.A. NO. 10153 ON
APPOINTMENT OF OICs AS AN INTERIM MEASURE.
B.
THE HONORABLE COURT ERRED IN RULING THAT THE APPOINTMENT
BY THE PRESIDENT OF OICs FOR THE ARMM REGIONAL
GOVERNMENT IS NOT VIOLATIVE OF THE CONSTITUTION.
C.
THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT
VIOLATE THE CONSTITUTION, AND BEFORE THEIR SUCCESSORS ARE
ELECTED IN EITHER AN ELECTION TO BE HELD AT THE SOONEST
POSSIBLE TIME OR IN MAY 2013, THE SAID INCUMBENT ARMM
REGIONAL OFFICIALS MAY VALIDLY CONTINUE FUNCTIONING AS
SUCH IN A HOLDOVER CAPACITY IN ACCORDANCE WITH SECTION 7,
ARTICLE VII OF R.A. NO. 9054.
D.
WITH THE CANCELLATION OF THE AUGUST 2011 ARMM ELECTIONS,
SPECIAL ELECTIONS MUST IMMEDIATELY BE HELD FOR THE
ELECTIVE REGIONAL OFFICIALS OF THE ARMM WHO SHALL SERVE
UNTIL THEIR SUCCESSORS ARE ELECTED IN THE MAY 2013
SYNCHRONIZED ELECTIONS.[4]

Finally, the petitioners in G.R. No. 197280 argue that:


a)

the Constitutional mandate of synchronization does not apply to the


ARMM elections;

b)

RA No. 10153 negates the basic principle of republican democracy


which, by constitutional mandate, guides the governance of the
Republic;

c)

RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has
to comply with the 2/3 vote from the House of Representatives and
the Senate, voting separately, and be ratified in a plebiscite;

d)

if the choice is between elective officials continuing to hold their


offices even after their terms are over and non-elective individuals
getting into the vacant elective positions by appointment as OICs, the
holdover option is the better choice;

e)

the President only has the power of supervision over autonomous


regions, which does not include the power to appoint OICs to take the
place of ARMM elective officials; and

f)

it would be better to hold the ARMM elections separately from the


national and local elections as this will make it easier for the
authorities to implement election laws.

In essence, the Court is asked to resolve the following questions:


(a)

Does the Constitution mandate the synchronization of ARMM


regional elections with national and local elections?

(b)

Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153
have to comply with the supermajority vote and plebiscite
requirements?

(c)

Is the holdover provision in RA No. 9054 constitutional?

(d)

Does the COMELEC have the power to call for special elections in
ARMM?

(e)

Does granting the President the power to appoint OICs violate the
elective and representative nature of ARMM regional legislative and
executive offices?

(f)

Does the appointment power granted to the President exceed the


Presidents supervisory powers over autonomous regions?
The Courts Ruling

We deny the motions for lack of merit.


Synchronization mandate includes ARMM elections
The Court was unanimous in holding that the Constitution mandates the
synchronization of national and local elections. While the Constitution does not
expressly instruct Congress to synchronize the national and local elections, the
intention can be inferred from the following provisions of the Transitory
Provisions (Article XVIII) of the Constitution, which state:
Section 1. The first elections of Members of the Congress under this Constitution
shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President,
which may be simultaneous with the election of the Members of the Congress. It
shall include the election of all Members of the city or municipal councils in the
Metropolitan Manila area.
Section 2. The Senators, Members of the House of Representatives, and the local
officials first elected under this Constitution shall serve until noon of June 30,
1992.
Of the Senators elected in the elections in 1992, the first twelve obtaining the
highest number of votes shall serve for six years and the remaining twelve for
three years.
xxxx
Section 5. The six-year term of the incumbent President and Vice-President
elected in the February 7, 1986 election is, for purposes of synchronization of
elections, hereby extended to noon of June 30, 1992.
The first regular elections for the President and Vice-President under this
Constitution shall be held on the second Monday of May, 1992.

To fully appreciate the constitutional intent behind these provisions, we refer


to the discussions of the Constitutional Commission:
MR. MAAMBONG. For purposes of identification, I will now read a section
which we will temporarily indicate as Section 14. It reads: THE SENATORS,
MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL
OFFICIALS ELECTED IN THE FIRST ELECTION SHALL SERVE FOR FIVE
YEARS, TO EXPIRE AT NOON OF JUNE 1992.
This was presented by Commissioner Davide, so may we ask that Commissioner
Davide be recognized.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.
MR. DAVIDE. Before going to the proposed amendment, I would only state that
in view of the action taken by the Commission on Section 2 earlier, I am
formulating a new proposal. It will read as follows: THE SENATORS,
MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL
OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL
SERVE UNTIL NOON OF JUNE 30, 1992.

I proposed this because of the proposed section of the Article on Transitory


Provisions giving a term to the incumbent President and Vice-President until
1992. Necessarily then, since the term provided by the Commission for Members
of the Lower House and for local officials is three years, if there will be an
election in 1987, the next election for said officers will be in 1990, and it would
be very close to 1992. We could never attain, subsequently, any synchronization
of election which is once every three years.
So under my proposal we will be able to begin actual synchronization in
1992, and consequently, we should not have a local election or an election for
Members of the Lower House in 1990 for them to be able to complete their term
of three years each. And if we also stagger the Senate, upon the first election it
will result in an election in 1993 for the Senate alone, and there will be an election
for 12 Senators in 1990. But for the remaining 12 who will be elected in 1987, if
their term is for six years, their election will be in 1993. So, consequently we will
have elections in 1990, in 1992 and in 1993. The later election will be limited to
only 12 Senators and of course to the local officials and the Members of the
Lower House. But, definitely, thereafter we can never have an election once every
three years, therefore defeating the very purpose of the Commission when we
adopted the term of six years for the President and another six years for the
Senators with the possibility of staggering with 12 to serve for six years and 12
for three years insofar as the first Senators are concerned. And so my proposal is
the only way to effect the first synchronized election which would mean,
necessarily, a bonus of two years to the Members of the Lower House and a
bonus of two years to the local elective officials.
THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?
MR. DE CASTRO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is
recognized.
MR. DE CASTRO. Thank you.
During the discussion on the legislative and the synchronization of elections, I
was the one who proposed that in order to synchronize the elections every three
years, which the body approved the first national and local officials to be elected
in 1987 shall continue in office for five years, the same thing the Honorable
Davide is now proposing. That means they will all serve until 1992, assuming that
the term of the President will be for six years and continue beginning in 1986. So
from 1992, we will again have national, local and presidential elections. This
time, in 1992, the President shall have a term until 1998 and the first 12
Senators will serve until 1998, while the next 12 shall serve until 1995, and
then the local officials elected in 1992 will serve until 1995. From then on, we
shall have an election every three years.

So, I will say that the proposition of Commissioner Davide is in order, if we have
to synchronize our elections every three years which was already approved by the
body.
Thank you, Mr. Presiding Officer.
xxxx
MR. GUINGONA. What will be synchronized, therefore, is the election of the
incumbent President and Vice-President in 1992.
MR. DAVIDE. Yes.
MR. GUINGONA. Not the reverse. Will the committee not synchronize the
election of the Senators and local officials with the election of the President?
MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on
the assumption that the provision of the Transitory Provisions on the term of the
incumbent President and Vice-President would really end in 1992.
MR. GUINGONA. Yes.
MR. DAVIDE. In other words, there will be a single election in 1992 for all,
from the President up to the municipal officials.[5] (emphases and underscoring
ours)

The framers of the Constitution could not have expressed their objective
more clearly there was to be a single election in 1992 for all elective officials from
the President down to the municipal officials. Significantly, the framers were even
willing to temporarily lengthen or shorten the terms of elective officials in order to
meet this objective, highlighting the importance of this constitutional mandate.
We came to the same conclusion in Osmea v. Commission on Elections,
where we unequivocally stated that the Constitution has mandated synchronized
national and local elections."[7] Despite the length and verbosity of their motions,
the petitioners have failed to convince us to deviate from this established ruling.
[6]

Neither do we find any merit in the petitioners contention that the ARMM
elections are not covered by the constitutional mandate of synchronization because

the ARMM elections were not specifically mentioned in the above-quoted


Transitory Provisions of the Constitution.
That the ARMM elections were not expressly mentioned in the Transitory
Provisions of the Constitution on synchronization cannot be interpreted to mean
that the ARMM elections are not covered by the constitutional mandate of
synchronization. We have to consider that the ARMM, as we now know it, had not
yet been officially organized at the time the Constitution was enacted and ratified
by the people. Keeping in mind that a constitution is not intended to provide
merely for the exigencies of a few years but is to endure through generations for as
long as it remains unaltered by the people as ultimate sovereign, a constitution
should be construed in the light of what actually is a continuing instrument to
govern not only the present but also the unfolding events of the indefinite future.
Although the principles embodied in a constitution remain fixed and unchanged
from the time of its adoption, a constitution must be construed as a dynamic
process intended to stand for a great length of time, to be progressive and not
static.[8]
To reiterate, Article X of the Constitution, entitled Local Government,
clearly shows the intention of the Constitution to classify autonomous regions,
such as the ARMM, as local governments. We refer to Section 1 of this Article,
which provides:
Section 1. The territorial and political subdivisions of the Republic of
the Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.

The inclusion of autonomous regions in the enumeration of political


subdivisions of the State under the heading Local Government indicates quite
clearly the constitutional intent to consider autonomous regions as one of the forms
of local governments.
That the Constitution mentions only the national government and the local
governments, and does not make a distinction between the local government and
the regional government, is particularly revealing, betraying as it does the intention

of the framers of the Constitution to consider the autonomous regions not as


separate forms of government, but as political units which, while having more
powers and attributes than other local government units, still remain under the
category of local governments. Since autonomous regions are classified as local
governments, it follows that elections held in autonomous regions are also
considered as local elections.
The petitioners further argue that even assuming that the Constitution
mandates the synchronization of elections, the ARMM elections are not covered by
this mandate since they are regional elections and not local elections.
In construing provisions of the Constitution, the first rule is verba legis, that
is, wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed.[9] Applying this
principle to determine the scope of local elections, we refer to the meaning of the
word local, as understood in its ordinary sense. As defined in Websters Third New
International Dictionary Unabridged, local refers to something that primarily
serves the needs of a particular limited district, often a community or minor
political subdivision. Obviously, the ARMM elections, which are held within the
confines of the autonomous region of Muslim Mindanao, fall within this definition.
To be sure, the fact that the ARMM possesses more powers than other
provinces, cities, or municipalities is not enough reason to treat the ARMM
regional elections differently from the other local elections. Ubi lex non distinguit
nec nos distinguire debemus. When the law does not distinguish, we must not
distinguish.[10]
RA No. 10153 does not amend RA No. 9054
The petitioners are adamant that the provisions of RA No. 10153, in postponing the
ARMM elections, amend RA No. 9054.
We cannot agree with their position.
A thorough reading of RA No. 9054 reveals that it fixes the schedule for
only the first ARMM elections;[11] it does not provide the date for the succeeding
regular ARMM elections. In providing for the date of the regular ARMM elections,

RA No. 9333 and RA No. 10153 clearly do not amend RA No. 9054 since these
laws do not change or revise any provision in RA No. 9054. In fixing the date of
the ARMM elections subsequent to the first election, RA No. 9333 and RA No.
10153 merely filled the gap left in RA No. 9054.
We reiterate our previous observations:
This view that Congress thought it best to leave the determination of the
date of succeeding ARMM elections to legislative discretion finds support in
ARMMs recent history.
To recall, RA No. 10153 is not the first law passed that rescheduled the
ARMM elections. The First Organic Act RA No. 6734 not only did not fix the
date of the subsequent elections; it did not even fix the specific date of the first
ARMM elections, leaving the date to be fixed in another legislative enactment.
Consequently, RA No. 7647, RA No. 8176, RA No. 8746, RA No. 8753, and RA
No. 9012 were all enacted by Congress to fix the dates of the ARMM
elections. Since these laws did not change or modify any part or provision of RA
No. 6734, they were not amendments to this latter law. Consequently, there was
no need to submit them to any plebiscite for ratification.
The Second Organic Act RA No. 9054 which lapsed into law on March
31, 2001, provided that the first elections would be held on the second Monday of
September 2001. Thereafter, Congress passed RA No. 9140 to reset the date of the
ARMM elections. Significantly, while RA No. 9140 also scheduled the plebiscite
for the ratification of the Second Organic Act (RA No. 9054), the new date of the
ARMM regional elections fixed in RA No. 9140 was not among the provisions
ratified in the plebiscite held to approve RA No. 9054. Thereafter, Congress
passed RA No. 9333, which further reset the date of the ARMM regional
elections. Again, this law was not ratified through a plebiscite.
From these legislative actions, we see the clear intention of Congress to
treat the laws which fix the date of the subsequent ARMM elections as separate
and distinct from the Organic Acts. Congress only acted consistently with this
intent when it passed RA No. 10153 without requiring compliance with the
amendment prerequisites embodied in Section 1 and Section 3, Article XVII of
RA No. 9054.[12] (emphases supplied)

The petitioner in G.R. No. 196305 contends, however, that there is no lacuna
in RA No. 9054 as regards the date of the subsequent ARMM elections. In his
estimation, it can be implied from the provisions of RA No. 9054 that the

succeeding elections are to be held three years after the date of the first ARMM
regional elections.
We find this an erroneous assertion. Well-settled is the rule that the court
may not, in the guise of interpretation, enlarge the scope of a statute and include
therein situations not provided nor intended by the lawmakers. An omission at the
time of enactment, whether careless or calculated, cannot be judicially supplied
however later wisdom may recommend the inclusion.[13] Courts are not authorized
to insert into the law what they think should be in it or to supply what they think
the legislature would have supplied if its attention had been called to the omission.
[14]
Providing for lapses within the law falls within the exclusive domain of the
legislature, and courts, no matter how well-meaning, have no authority to intrude
into this clearly delineated space.
Since RA No. 10153 does not amend, but merely fills in the gap in RA No.
9054, there is no need for RA No. 10153 to comply with the amendment
requirements set forth in Article XVII of RA No. 9054.
Supermajority vote requirement makes RA No. 9054 an irrepealable law
Even assuming that RA No. 10153 amends RA No. 9054, however, we have
already established that the supermajority vote requirement set forth in Section 1,
Article XVII of RA No. 9054[15] is unconstitutional for violating the principle that
Congress cannot pass irrepealable laws.
The power of the legislature to make laws includes the power to amend and repeal
these laws. Where the legislature, by its own act, attempts to limit its power to
amend or repeal laws, the Court has the duty to strike down such act for interfering
with the plenary powers of Congress. As we explained in Duarte v. Dade:[16]
A state legislature has a plenary law-making power over all subjects, whether
pertaining to persons or things, within its territorial jurisdiction, either to
introduce new laws or repeal the old, unless prohibited expressly or by
implication by the federal constitution or limited or restrained by its own. It
cannot bind itself or its successors by enacting irrepealable laws except when so
restrained. Every legislative body may modify or abolish the acts passed by itself
or its predecessors. This power of repeal may be exercised at the same session at

which the original act was passed; and even while a bill is in its progress and
before it becomes a law. This legislature cannot bind a future legislature to a
particular mode of repeal. It cannot declare in advance the intent of
subsequent legislatures or the effect of subsequent legislation upon existing
statutes. [emphasis ours]

Under our Constitution, each House of Congress has the power to approve
bills by a mere majority vote, provided there is quorum. [17] In requiring all laws
which amend RA No. 9054 to comply with a higher voting requirement than the
Constitution provides (2/3 vote), Congress, which enacted RA No. 9054, clearly
violated the very principle which we sought to establish in Duarte. To reiterate, the
act of one legislature is not binding upon, and cannot tie the hands of, future
legislatures.[18]
We also highlight an important point raised by Justice Antonio T. Carpio in
his dissenting opinion, where he stated: Section 1, Article XVII of RA 9054 erects
a high vote threshold for each House of Congress to surmount, effectively and
unconstitutionally, taking RA 9054 beyond the reach of Congress amendatory
powers. One Congress cannot limit or reduce the plenary legislative power of
succeeding Congresses by requiring a higher vote threshold than what the
Constitution requires to enact, amend or repeal laws. No law can be passed fixing
such a higher vote threshold because Congress has no power, by ordinary
legislation, to amend the Constitution.[19]
Plebiscite requirement in RA No. 9054 overly broad
Similarly, we struck down the petitioners contention that the plebiscite
requirement[20] applies to all amendments of RA No. 9054 for being an
unreasonable enlargement of the plebiscite requirement set forth in the
Constitution.
Section 18, Article X of the Constitution provides that [t]he creation of the
autonomous region shall be effective when approved by majority of the votes cast
by the constituent units in a plebiscite called for the purpose[.] We interpreted this
to mean that only amendments to, or revisions of, the Organic Act constitutionallyessential to the creation of autonomous regions i.e., those aspects specifically

mentioned in the Constitution which Congress must provide for in the Organic
Act[21]require ratification through a plebiscite. We stand by this interpretation.
The petitioners argue that to require all amendments to RA No. 9054 to
comply with the plebiscite requirement is to recognize that sovereignty resides
primarily in the people.
While we agree with the petitioners underlying premise that sovereignty
ultimately resides with the people, we disagree that this legal reality necessitates
compliance with the plebiscite requirement for all amendments to RA No. 9054.
For if we were to go by the petitioners interpretation of Section 18, Article X of the
Constitution that all amendments to the Organic Act have to undergo the plebiscite
requirement before becoming effective, this would lead to impractical and illogical
results hampering the ARMMs progress by impeding Congress from enacting laws
that timely address problems as they arise in the region, as well as weighing down
the ARMM government with the costs that unavoidably follow the holding of a
plebiscite.
Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153, in
giving the President the power to appoint OICs to take the place of the elective
officials of the ARMM, creates a fundamental change in the basic structure of the
government, and thus requires compliance with the plebiscite requirement
embodied in RA No. 9054.
Again, we disagree.
The pertinent provision in this regard is Section 3 of RA No. 10153, which
reads:
Section 3. Appointment of Officers-in-Charge. The President shall appoint
officers-in-charge for the Office of the Regional Governor, Regional Vice
Governor and Members of the Regional Legislative Assembly who shall perform
the functions pertaining to the said offices until the officials duly elected in the
May 2013 elections shall have qualified and assumed office.

We cannot see how the above-quoted provision has changed the basic
structure of the ARMM regional government. On the contrary, this provision

clearly preserves the basic structure of the ARMM regional government when it
recognizes the offices of the ARMM regional government and directs the OICs
who shall temporarily assume these offices to perform the functions pertaining to
the said offices.
Unconstitutionality of the holdover provision
The petitioners are one in defending the constitutionality of Section 7(1), Article
VII of RA No. 9054, which allows the regional officials to remain in their positions
in a holdover capacity. The petitioners essentially argue that the ARMM regional
officials should be allowed to remain in their respective positions until the May
2013 elections since there is no specific provision in the Constitution which
prohibits regional elective officials from performing their duties in a holdover
capacity.
The pertinent provision of the Constitution is Section 8, Article X which provides:
Section 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall
serve for more than three consecutive terms. [emphases ours]

On the other hand, Section 7(1), Article VII of RA No. 9054 provides:
Section 7. Terms of Office of Elective Regional Officials. (1) Terms of Office.
The terms of office of the Regional Governor, Regional Vice Governor and
members of the Regional Assembly shall be for a period of three (3) years, which
shall begin at noon on the 30th day of September next following the day of the
election and shall end at noon of the same date three (3) years thereafter. The
incumbent elective officials of the autonomous region shall continue in effect
until their successors are elected and qualified.

The clear wording of Section 8, Article X of the Constitution expresses the


intent of the framers of the Constitution to categorically set a limitation on the
period within which all elective local officials can occupy their offices. We have
already established that elective ARMM officials are also local officials; they are,
thus, bound by the three-year term limit prescribed by the Constitution. It,
therefore, becomes irrelevant that the Constitution does not expressly prohibit

elective officials from acting in a holdover capacity. Short of amending the


Constitution, Congress has no authority to extend the three-year term limit by
inserting a holdover provision in RA No. 9054. Thus, the term of three years for
local officials should stay at three (3) years, as fixed by the Constitution, and
cannot be extended by holdover by Congress.
Admittedly, we have, in the past, recognized the validity of holdover
provisions in various laws. One significant difference between the present case and
these past cases[22] is that while these past cases all refer to
elective barangay or sangguniang kabataan officials whose terms of office are not
explicitly provided for in the Constitution, the present case refers to local elective
officials - the ARMM Governor, the ARMM Vice Governor, and the members of
the Regional Legislative Assembly - whose terms fall within the three-year term
limit set by Section 8, Article X of the Constitution.
Even assuming that a holdover is constitutionally permissible, and there had
been statutory basis for it (namely Section 7, Article VII of RA No. 9054), the rule
of holdover can only apply as an available option where no express or implied
legislative intent to the contrary exists; it cannot apply where such contrary intent
is evident.[23]
Congress, in passing RA No. 10153 and removing the holdover option, has
made it clear that it wants to suppress the holdover rule expressed in RA No. 9054.
Congress, in the exercise of its plenary legislative powers, has clearly acted within
its discretion when it deleted the holdover option, and this Court has no authority
to question the wisdom of this decision, absent any evidence of unconstitutionality
or grave abuse of discretion. It is for the legislature and the executive, and not this
Court, to decide how to fill the vacancies in the ARMM regional government
which arise from the legislature complying with the constitutional mandate of
synchronization.
COMELEC has no authority to hold special elections
Neither do we find any merit in the contention that the Commission on Elections
(COMELEC) is sufficiently empowered to set the date of special elections in the

ARMM. To recall, the Constitution has merely empowered the COMELEC to


enforce and administer all laws and regulations relative to the conduct of an
election.[24] Although the legislature, under the Omnibus Election Code (Batas
Pambansa Bilang [BP] 881), has granted the COMELEC the power to postpone
elections to another date, this power is confined to the specific terms and
circumstances provided for in the law. Specifically, this power falls within the
narrow confines of the following provisions:
Section 5. Postponement of election. - When for any serious cause such
as violence, terrorism, loss or destruction of election paraphernalia or
records, force majeure, and other analogous causes of such a nature that the
holding of a free, orderly and honest election should become impossible in any
political subdivision, the Commission, motu proprio or upon a verified petition by
any interested party, and after due notice and hearing, whereby all interested
parties are afforded equal opportunity to be heard, shall postpone the election
therein to a date which should be reasonably close to the date of the election
not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause for such postponement or suspension of
the election or failure to elect.
Section
6. Failure
of
election.
If,
on
account
of force
majeure, violence, terrorism, fraud, or other analogous causes the election in
any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect, and in
any of such cases the failure or suspension of election would affect the result of
the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure to
elect on a date reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty days after the cessation
of the cause of such postponement or suspension of the election or failure to elect.
[emphases and underscoring ours]

As we have previously observed in our assailed decision, both Section 5 and


Section 6 of BP 881 address instances where elections have already been
scheduled to take place but do not occur or had to be suspended because
of unexpected and unforeseen circumstances, such as violence, fraud, terrorism,
and other analogous circumstances.

In contrast, the ARMM elections were postponed by law, in furtherance


of the constitutional mandate of synchronization of national and local elections.
Obviously, this does not fall under any of the circumstances contemplated by
Section 5 or Section 6 of BP 881.
More importantly, RA No. 10153 has already fixed the date for the next
ARMM elections and the COMELEC has no authority to set a different election
date.
Even assuming that the COMELEC has the authority to hold special elections, and
this Court can compel the COMELEC to do so, there is still the problem of having
to shorten the terms of the newly elected officials in order to synchronize the
ARMM elections with the May 2013 national and local elections. Obviously,
neither the Court nor the COMELEC has the authority to do this, amounting as it
does to an amendment of Section 8, Article X of the Constitution, which limits the
term of local officials to three years.
Presidents authority to appoint OICs
The petitioner in G.R. No. 197221 argues that the Presidents power to
appoint pertains only to appointive positions and cannot extend to positions held
by elective officials.
The power to appoint has traditionally been recognized as executive in
nature.[25] Section 16, Article VII of the Constitution describes in broad strokes the
extent of this power, thus:
Section 16. The President shall nominate and, with the consent of the Commission
on Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are vested in
him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the President alone, in
the courts, or in the heads of departments, agencies, commissions, or boards.
[emphasis ours]

The 1935 Constitution contained a provision similar to the one quoted


above. Section 10(3), Article VII of the 1935 Constitution provides:
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from
the rank of captain or commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may by law vest the
appointment of inferior officers, in the President alone, in the courts, or in the
heads of departments. [emphasis ours]

The main distinction between the provision in the 1987 Constitution and its
counterpart in the 1935 Constitution is the sentence construction; while in the 1935
Constitution, the various appointments the President can make are enumerated in a
single sentence, the 1987 Constitution enumerates the various appointments the
President is empowered to make and divides the enumeration in two sentences.
The change in style is significant; in providing for this change, the framers of the
1987 Constitution clearly sought to make a distinction between the first group of
presidential appointments and the second group of presidential appointments, as
made evident in the following exchange:
MR. FOZ. Madame President x x x I propose to put a period (.) after captain and
x x x delete and all and substitute it with HE SHALL ALSO APPOINT ANY.
MR. REGALADO. Madam President, the Committee accepts the proposed
amendment because it makes it clear that those other officers mentioned therein
do not have to be confirmed by the Commission on Appointments.[26]

The first group of presidential appointments, specified as the heads of the


executive departments, ambassadors, other public ministers and consuls, or officers
of the Armed Forces, and other officers whose appointments are vested in the
President by the Constitution, pertains to the appointive officials who have to be
confirmed by the Commission on Appointments.
The second group of officials the President can appoint are all other officers
of the Government whose appointments are not otherwise provided for by law, and

those whom he may be authorized by law to appoint. [27] The second sentence acts
as the catch-all provision for the Presidents appointment power, in recognition of
the fact that the power to appoint is essentially executive in nature. [28] The wide
latitude given to the President to appoint is further demonstrated by the recognition
of the Presidents power to appoint officials whose appointments are not even
provided for by law. In other words, where there are offices which have to be
filled, but the law does not provide the process for filling them, the Constitution
recognizes the power of the President to fill the office by appointment.
Any limitation on or qualification to the exercise of the Presidents
appointment power should be strictly construed and must be clearly stated in order
to be recognized.[29] Given that the President derives his power to appoint OICs in
the ARMM regional government from law, it falls under the classification of
presidential appointments covered by the second sentence of Section 16, Article
VII of the Constitution; the Presidents appointment power thus rests on clear
constitutional basis.
The petitioners also jointly assert that RA No. 10153, in granting the
President the power to appoint OICs in elective positions, violates Section 16,
Article X of the Constitution,[30] which merely grants the President the power of
supervision over autonomous regions.
This is an overly restrictive interpretation of the Presidents appointment
power. There is no incompatibility between the Presidents power of supervision
over local governments and autonomous regions, and the power granted to the
President, within the specific confines of RA No. 10153, to appoint OICs.
The power of supervision is defined as the power of a superior officer to see to it
that lower officers perform their functions in accordance with law.[31] This is
distinguished from the power of control or the power of an officer to alter or
modify or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for the latter.[32]
The petitioners apprehension regarding the Presidents alleged power of
control over the OICs is rooted in their belief that the Presidents appointment
power includes the power to remove these officials at will. In this way, the

petitioners foresee that the appointed OICs will be beholden to the President, and
act as representatives of the President and not of the people.
Section 3 of RA No. 10153 expressly contradicts the petitioners supposition.
The provision states:
Section 3. Appointment of Officers-in-Charge. The President shall appoint
officers-in-charge for the Office of the Regional Governor, Regional Vice
Governor and Members of the Regional Legislative Assembly who shall perform
the functions pertaining to the said offices until the officials duly elected in the
May 2013 elections shall have qualified and assumed office.

The wording of the law is clear. Once the President has appointed the OICs
for the offices of the Governor, Vice Governor and members of the Regional
Legislative Assembly, these same officials will remain in office until they are
replaced by the duly elected officials in the May 2013 elections. Nothing in this
provision even hints that the President has the power to recall the appointments he
already made. Clearly, the petitioners fears in this regard are more apparent than
real.
RA No. 10153 as an interim measure
We reiterate once more the importance of considering RA No. 10153 not in a
vacuum, but within the context it was enacted in. In the first place, Congress
enacted RA No. 10153 primarily to heed the constitutional mandate to synchronize
the ARMM regional elections with the national and local elections. To do this,
Congress had to postpone the scheduled ARMM elections for another date, leaving
it with the problem of how to provide the ARMM with governance in the
intervening period, between the expiration of the term of those elected in August
2008 and the assumption to office twenty-one (21) months away of those who will
win in the synchronized elections on May 13, 2013.
In our assailed Decision, we already identified the three possible solutions
open to Congress to address the problem created by synchronization (a) allow the
incumbent officials to remain in office after the expiration of their terms in a
holdover capacity; (b) call for special elections to be held, and shorten the terms of
those to be elected so the next ARMM regional elections can be held on May 13,

2013; or (c) recognize that the President, in the exercise of his appointment powers
and inline with his power of supervision over the ARMM, can appoint interim
OICs to hold the vacated positions in the ARMM regional government upon the
expiration of their terms. We have already established the unconstitutionality of the
first two options, leaving us to consider the last available option.
In this way, RA No. 10153 is in reality an interim measure, enacted to
respond to the adjustment that synchronization requires. Given the context, we
have to judge RA No. 10153 by the standard of reasonableness in responding to the
challenges brought about by synchronizing the ARMM elections with the national
and local elections. In other words, given the plain unconstitutionality of
providing for a holdover and the unavailability of constitutional possibilities for
lengthening or shortening the term of the elected ARMM officials, is the choice
of the Presidents power to appoint for a fixed and specific period as an interim
measure, and as allowed under Section 16, Article VII of the Constitution an
unconstitutional or unreasonable choice for Congress to make?[33]
We admit that synchronization will temporarily disrupt the election process
in a local community, the ARMM, as well as the communitys choice of leaders.
However, we have to keep in mind that the adoption of this measure is a matter of
necessity in order to comply with a mandate that the Constitution itself has set out
for us. Moreover, the implementation of the provisions of RA No. 10153 as an
interim measure is comparable to the interim measures traditionally practiced
when, for instance, the President appoints officials holding elective offices upon
the creation of new local government units.
The grant to the President of the power to appoint OICs in place of the
elective members of the Regional Legislative Assembly is neither novel nor
innovative. The power granted to the President, via RA No. 10153, to appoint
members of the Regional Legislative Assembly is comparable to the power granted
by BP 881 (the Omnibus Election Code) to the President to fill any vacancy for
any cause in the Regional Legislative Assembly (then called the Sangguniang
Pampook).[34]
Executive is not bound by the principle of judicial courtesy

The petitioners in G.R. No. 197280, in their Manifestation and Motion dated
December 21, 2011, question the propriety of the appointment by the President of
Mujiv Hataman as acting Governor and Bainon Karon as acting Vice Governor of
the ARMM. They argue that since our previous decision was based on a close vote
of 8-7, and given the numerous motions for reconsideration filed by the parties, the
President, in recognition of the principle of judicial courtesy, should have refrained
from implementing our decision until we have ruled with finality on this case.
We find the petitioners reasoning specious.
Firstly, the principle of judicial courtesy is based on the hierarchy of courts and
applies only to lower courts in instances where, even if there is no writ of
preliminary injunction or TRO issued by a higher court, it would be proper for a
lower court to suspend its proceedings for practical and ethical considerations. [35] In
other words, the principle of judicial courtesy applies where there is a strong
probability that the issues before the higher court would be rendered moot and
moribund as a result of the continuation of the proceedings in the lower court or
court of origin.[36] Consequently, this principle cannot be applied to the President,
who represents a co-equal branch of government. To suggest otherwise would be to
disregard the principle of separation of powers, on which our whole system of
government is founded upon.
Secondly, the fact that our previous decision was based on a slim vote of 8-7 does
not, and cannot, have the effect of making our ruling any less effective or binding.
Regardless of how close the voting is, so long as there is concurrence of the
majority of the members of the en banc who actually took part in the deliberations
of the case,[37] a decision garnering only 8 votes out of 15 members is still a
decision of the Supreme Court en banc and must be respected as such. The
petitioners are, therefore, not in any position to speculate that, based on the voting,
the probability exists that their motion for reconsideration may be granted.[38]
Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue
Clarificatory Resolution, argues that since motions for reconsideration were filed
by the aggrieved parties challenging our October 18, 2011 decision in the present
case, the TRO we initially issued on September 13, 2011 should remain subsisting
and effective. He further argues that any attempt by the Executive to implement

our October 18, 2011 decision pending resolution of the motions for
reconsideration borders on disrespect if not outright insolence[39] to this Court.
In support of this theory, the petitioner cites Samad v. COMELEC,[40] where
the Court held that while it had already issued a decision lifting the TRO, the
lifting of the TRO is not yet final and executory, and can also be the subject of a
motion for reconsideration. The petitioner also cites the minute resolution issued
by the Court in Tolentino v. Secretary of Finance,[41] where the Court reproached
the Commissioner of the Bureau of Internal Revenue for manifesting its intention
to implement the decision of the Court, noting that the Court had not yet lifted the
TRO previously issued.[42]
We agree with the petitioner that the lifting of a TRO can be included as a subject
of a motion for reconsideration filed to assail our decision. It does not follow,
however, that the TRO remains effective until after we have issued a final and
executory decision, especially considering the clear wording of the dispositive
portion of our October 18, 2011 decision, which states:
WHEREFORE, premises considered, we DISMISS the consolidated
petitions assailing the validity of RA No. 10153 for lack of merit, and UPHOLD
the constitutionality of this law. We likewise LIFT the temporary restraining
order we issued in our Resolution of September 13, 2011. No costs.
[43]
(emphases ours)

In this regard, we note an important distinction between Tolentino and the


present case. While it may be true that Tolentino and the present case are similar in
that, in both cases, the petitions assailing the challenged laws were dismissed by
the Court, an examination of the dispositive portion of the decision
in Tolentinoreveals that the Court did not categorically lift the TRO. In sharp
contrast, in the present case, we expressly lifted the TRO issued on September 13,
2011. There is, therefore, no legal impediment to prevent the President from
exercising his authority to appoint an acting ARMM Governor and Vice Governor
as specifically provided for in RA No. 10153.
Conclusion

As a final point, we wish to address the bleak picture that the petitioner in
G.R. No. 197282 presents in his motion, that our Decision has virtually given the
President the power and authority to appoint 672,416 OICs in the event that the
elections of barangay and Sangguniang Kabataan officials are postponed or
cancelled.
We find this speculation nothing short of fear-mongering.
This argument fails to take into consideration the unique factual and legal
circumstances which led to the enactment of RA No. 10153. RA No. 10153 was
passed in order to synchronize the ARMM elections with the national and local
elections. In the course of synchronizing the ARMM elections with the national
and local elections, Congress had to grant the President the power to appoint OICs
in the ARMM, in light of the fact that: (a) holdover by the incumbent ARMM
elective officials is legally impermissible; and (b) Congress cannot call for special
elections and shorten the terms of elective local officials for less than three years.
Unlike local officials, as the Constitution does not prescribe a term limit
for barangay and Sangguniang Kabataan officials, there is no legal proscription
which prevents these specific government officials from continuing in a holdover
capacity
should
some
exigency
require
the
postponement
of barangay or Sangguniang Kabataan elections. Clearly, these fears have neither
legal nor factual basis to stand on.
For the foregoing reasons, we deny the petitioners motions for reconsideration.
WHEREFORE, premises considered, we DENY with FINALITY the
motions for reconsideration for lack of merit and UPHOLD the constitutionality of
RA No. 10153.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:

RENATO C. CORONA
Chief Justice

I reiterate my Dissenting Opinion


ANTONIO T. CARPIO
Associate Justice

I reiterate my Dissenting Opinion


PRESBITERO J. VELASCO, JR.
Associate Justice

I maintain my vote joining the dissent of


Justice Velasco
TERESITA J. LEONARDO-DE CASTRO
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

(On Official Leave)


MARIANO C. DEL CASTILLO
Associate Justice

I maintain my dissent
ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

I join the Dissent of J. Carpio


JOSE PORTUGAL PEREZ
Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

(On Leave)
MARIA LOURDES P. A. SERENO
Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

On official leave.
On leave.
[1]
Rollo, G.R. No. 196271, p. 1221.
[2]
Id. at 1261-1263.
[3]
Id. at 1345-1383.
[4]
Id. at 1174-1175.
[5]
V Record of the Constitutional Commission, October 3, 1986, pp. 429-431.
[6]
G.R. Nos. 100318, 100308, 100417, and 100420, July 30, 1991, 199 SCRA 750.
[7]
Id. at 762.
[8]
See Ruben, STATUTORY CONSTRUCTION, 5th ed., 2003, p. 435, citing Roman Cath. Apostolic Adm. of Davao,
Inc. v. Land Reg. Com., et al., 102 Phil. 596 (1957).
**

[9]

Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 884 (2003).

[10]

Amores v. House of Representatives Electoral Tribunal, G.R. No. 189600, June 29, 2010, 622 SCRA 593,
citing Adasa v. Abalos, G.R. No. 168617, February 19, 2007, 516 SCRA 261, 280, and Philippine Free Press, Inc. v.
Court of Appeals, 510 Phil. 411, 433 (2005).
[11]
Section 7, Article XVIII of RA No. 9054 provides:
Section 7. First Regular Elections. The first regular elections of the Regional Governor, Regional Vice Governor and
members of the regional legislative assembly under this Organic Act shall be held on the second Monday of
September 2001. The Commission on Elections shall promulgate rules and regulations as may be necessary for the
conduct of said election.
The election of the Regional Governor, Regional Vice Governor, and members of the Regional Legislative
Assembly of the Autonomous Region In Muslim Mindanao (ARMM) set forth in Republic Act No. 8953 is hereby
reset accordingly.
The funds for the holding of the ARMM elections shall be taken from the savings of the national government or
shall be provided in the General Appropriations Act (GAA).
[12]
Rollo, G.R. No. 196271, pp. 1035-1037.
[13]
Ruben, supra note 8, at 74, citing Morales v. Subido, etc., 135 Phil. 346 (1968).
[14]
Id., citing People v. Garcia, 85 Phil. 651 (1950).
[15]
Section 1, Article XVII of RA No. 9054 provides: Consistent with the provisions of the Constitution, this Organic
Act may be re-amended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the
Members of the House of Representatives and of the Senate voting separately.
[16]
32 Phil. 36, 49 (1915), citing Lewis' Southernland on Statutory Construction, section 244.

[17]

CONSTITUTION, Article VI, Section 16(2) states: A majority of each House shall constitute a quorum to do
business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in
such manner, and under such penalties, as such House may provide.
[18]
See The City of Davao v. The Regional Trial Court, Branch XII, Davao City, 504 Phil. 543 (2005), citing 59 C.J.,
sec. 500, pp. 899-900.
[19]
Rollo, G.R. No. 196271, pp. 1084-1085.
[20]
Section 3, Article XVII of RA No. 9054 provides: Any amendment to or revision of this Organic Act shall
become effective only when approved by a majority of the vote cast in a plebiscite called for the purpose, which
shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or
revision.
[21]
These include: (a) the basic structure of the regional government; (b) the regions judicial system, i.e.,
the special courts with personal, family, and property law jurisdiction; and (c) the grant and extent of the
legislative powers constitutionally conceded to the regional government under Section 20, Article X of the
Constitution.
[22]
Adap v. Commission on Elections, G.R. No. 161984, February 21, 2007, 516 SCRA 403; Sambarani v.
COMELEC, 481 Phil. 661 (2004); and Montesclaros v. Comelec, 433 Phil. 620 (2002).
[23]
Guekeko v. Santos, 76 Phil. 237 (1946).
[24]
See CONSTITUTION, Article IX(C), Section 2.
[25]
Hon. Luis Mario M. General, Commissioner, National Police Commission v. Hon. Alejandro S. Urro, in his
capacity as the new appointee vice herein petitioner Hon. Luis Mario M. General, National Police
Commission, andHon. Luis Mario M. General, Commissioner, National Police Commission v. President Gloria
Macapagal-Arroyo, thru Executive Secretary Leandro Mendoza, in Her capacity as the appointing power, Hon.
Ronaldo V. Puno, in His capacity as Secretary of the Department of Interior and Local Government and as ExOfficio Chairman of the National Police Commission and Hon. Eduardo U. Escueta, Alejandro S. Urro, and Hon.
Constancia P. de Guzman as the midnight appointee, G.R. No. 191560, March 29, 2011.
[26]
II Record of the Constitutional Commission, July 31, 1986, p. 520.
[27]
CONSTITUTION, Article VII, Section 16.
[28]
Pimentel, Jr. v. Exec. Secretary Ermita, 509 Phil. 567 (2005).
[29]
Id. at 573, citing Sarmiento III v. Commissioner Mison, 240 Phil. 505 (1987).
[30]
Section 16. The President shall exercise general supervision over autonomous regions to ensure that laws are
faithfully executed.
[31]
Bito-onon v. Hon. Yap Fernandez, 403 Phil. 693, 702 (2001), citing Drilon v. Lim, G.R. No. 112497, August 4,
1994, 235 SCRA 135, 141.
[32]
Drilon v. Lim, supra, at 140-141.
[33]
Rollo, G.R. No. 196271, pp. 1057-1058.
[34]
Section 35. Filling of vacancy. - Pending an election to fill a vacancy arising from any cause in the Sangguniang
Pampook, the vacancy shall be filled by the President, upon recommendation of the Sangguniang Pampook:
Provided, That the appointee shall come from the same province or sector of the member being replaced.
[35]
Rep. of the Phils. v. Sandiganbayan (First Div.), 525 Phil. 804 (2006).
[36]
Eternal Gardens Memorial Park Corp. v. Court of Appeals, 247 Phil. 387, 394 (1988).
[37]
Section 1(a), Rule 12 of the 2010 Internal Rules of the Supreme Court provides: SECTION 1. Voting
requirements. (a) All decisions and actions in Court en banc cases shall be made upon the concurrence of the
majority of the Members of the Court who actually took part in the deliberations on the issue or issues involved and
voted on them.
[38]
Rollo, G.R. No. 196271, p. 1440.
[39]
Tolentino v. Secretary of Finance, G.R. No. 115455, September 23, 1994, Minute Resolution.
[40]
G.R. Nos. 107854 and 108642, July 16, 1993, 224 SCRA 631.
[41]
G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873, and 115931, August 25, 1994,
235 SCRA 630.
[42]

The Court, in its Minute Resolution dated September 23, 1994, stated thus:
The Court calls the attention of respondents of the fact that the temporary restraining
order issued on June 30, 1994 was effective immediately and continuing until further orders from
this Court. Although the petitions in connection with which the TRO was issued were
subsequently dismissed, the decision is not yet final and the TRO previously issued has not been

lifted xxx because the TRO in these cases was expressly made effective until otherwise ordered by
this Court. (Rollo, G.R. No. 196271, p. 1426; emphasis ours.)
[43]
Rollo, G.R. No. 196271, p. 1067.

CONTROL
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-46570

April 21, 1939

JOSE D. VILLENA, petitioner,


vs.
THE SECRETARY OF THE INTERIOR, respondent.
Vicente del Rosario for petitioner.
Office of the Solicitor-General Ozaeta for respondent.
LAUREL, J.:
This is an original action of prohibition with prayer for preliminary injunction against the Secretary of
the Interior to restrain him and his agents from proceeding with the investigation of the herein
petitioner, Jose D. Villena, mayor of Makati, Rizal, which was scheduled to take place on March 28,
1939, until this case is finally determined by this court. The respondent was required to answer, but
the petition for preliminary injunction was denied.
It appears that the Division of Investigation of the Department of Justice, upon the request of the
Secretary of the Interior, conducted an inquiry into the conduct of the petitioner, as a result of which
the latter was found to have committed bribery, extortion, malicious abuse of authority and
unauthorized practice of the law profession. The respondent, therefore, on February 8, 1939,
recommended to the President of the Philippines the suspension of the petitioner to prevent possible
coercion of witnesses, which recommendation was granted, according to the answer of the SolicitorGeneral of March 20, 1939, verbally by the President on the same day. The Secretary of the Interior
suspended the petitioner from office on February 9, 1939, and then and thereafter wired the
Provincial Governor of Rizal with instruction that the petitioner be advised accordingly. On February
13, 1939, the respondent wrote the petitioner a letter, specifying the many charges against him and
notifying him of the designation of Emiliano Anonas as special investigator to investigate the
charges. The special investigator forthwith notified the petitioner that the formal investigation would
be commenced on February 17, 1939, at 9 a. m., but due to several incidents and postponements,
the same had to be set definitely for March 28, 1939. Hence, the petition for preliminary injunction
referred to in the beginning of this opinion.
The petitioner contends in his petition:
(1) That the Secretary of the Interior has no jurisdiction or authority to suspend and much
less to prefer by himself administrative charges against the petitioner and decide also by
himself the merits of the charges as the power to suspend municipal elective officials and to

try and punish them for misconduct in office or dereliction of duty is lodged in some other
agencies of the government;
(2) That the acts of the respondent in suspending the petitioner from office and in preferring
by himself charges against him and in designating a special investigator to hear the charges
specified in Exhibit A are null and void for the following reasons:
(a) Because the Secretary of the Interior, by suspending the petitioner, has exercised
control over local governments when that power has been taken away from the
President of the Philippines by the Constitution for the to abrogate and the power to
abrogate means the power to power to control has been interpreted to include the
power usurp and the power to usurp necessarily includes the power to destroy;
(b) Because even if the respondent Secretary of the Interior has power of supervision
over local governments, that power, according to the constitution, must be exercised
in accordance with the provisions of law and the provisions of law governing trials of
charges against elective municipal officials are those contained in section 2188 of the
Administrative Code as amended. In other words, the Secretary of the Interior must
exercise his supervision over local governments, if he has that power under existing
law, in accordance with section 2188 of the Administrative Code, as amended, as the
latter provision govern the procedure to be followed in suspending and punishing
elective local officials while section 79 (C) of the Administrative Code is the general
law which must yield to the special law;
(c) Because the respondent Secretary of the Interior is exercising an arbitrary power
by converting himself into a complainant and at the same time judge of the charges
he has preferred against the petitioner;
(d) Because the action of the respondent Secretary of the Interior is not based on
any sworn statement of any private person or citizen of this government when
section 2188 of the Administrative Code requires the complaint against elective
municipal officials to be under oath in order to merit consideration by the authorities.
Petitioner prays this Honorable Court:
(a) To issue a writ of preliminary injunction against the respondent restraining him, his
agents, attorneys and all persons acting by virtue of his authority from further proceeding
against the petitioner until this case is finally determined by this court;
(b) To declare, after the hearing of this petition, that the respondent is without authority or
jurisdiction to suspend the petitioner from the office of mayor of Makati and to order his
immediate reinstatement in office;
(c) To declare that the respondent has no authority to prefer charges against the petitioner
and to investigate those charges for the grant him that power the respondent would be acting
as prosecutor and judge of the case of his own creation.
Upon the other hand, the Solicitor-General contends in his answer:
1. That section 79 (C) in relation with section 86 of the Revised Administrative Code
expressly empowers the respondent as Secretary of the Interior to "order the investigation of

any act or conduct of any person in the service of any bureau or office under his department"
and in connection therewith to "designate an official or person who shall conduct such
investigation"; (Par. 4.)
2. That although section 2188 of the Revised Administrative Code, invoked by the petitioner,
empowers the provincial governor to `receive and investigate complaints made under oath
against municipal officers for neglect of duty, oppression, corruption or other form of
maladministration of office', said section does not preclude the respondent as Secretary of
the Interior from exercising the power vested in him by section 79 (C) in relation with section
86 of the Revised Administrative Code; and that, moreover, said section 2188 must be read
in relation with section 37 of Act No. 4007, known as the Reorganization Law of 1932; (Par. 4
[b].)
3. That at the commencement of the investigation the petitioner did not question the power or
jurisdiction of the Department of the Interior to investigate the administrative charges against
him but merely contended that the filing of said charges was not in accordance with law for
the reason that they did not bear the oaths of the complainants; (Par. 5.)
4. That the authority of a department head order the investigation of any act or conduct of
any person under his department necessarily carries with it by implication the authority to
take such measures as he may deem necessary to accomplish the purpose of the
investigation, such as by suspending the officer under investigation to prevent coercion of
witnesses; and that, furthermore, the suspension from office of the herein petitioner by the
respondent was authorized by the Chief Executive, who is empowered by section 64 (B) of
the Administrative Code to remove officials from office; (Par. 7.)
5. That the petition does not allege facts and circumstances that would warrant the granting
of the writ of preliminary injunction under section 164 of the Code of Civil Procedure; (Par. 8.)
6. That it is a well-settled rule "that courts of equity have no power to restrain public officers
by injunction from performing any official act which they are by law required to perform, or
acts which are not in excess of the authority and discretion reposed in them." (Par. 9)
The issues presented in this case may be reduced to an inquiry into the legal authority of the
Secretary of the Interior (a) to order an investigation, by a special investigation appointed by him, of
the charges of corruption and irregularity brought to his attention against the mayor of the
municipality of Makati, Province of Rizal, who is the petitioner herein, and (b) to decree the
suspension of the said mayor pending the investigation of the charges.
Section 79 (C) of the Administrative Code provides as follows:
The Department Head shall have direct control, direction, and supervision over all bureaus
and offices under his jurisdiction and may, any provision of existing law to the contrary
notwithstanding, repeal or modify the decisions of the chiefs of said bureaus of offices when
advisable in the public interest.
The Department Head may order the investigation of any act conduct of any person in the
service of any bureau of office under his department and in connection therewith may
appoint a committee or designate an official or person who shall conduct such investigations,
and such committee, official, or person may summon, witness by subpoena and subpoena
duces tecum, administer oath and take testimony relevant to the investigation.

The above section speaks, it is true, of direct control, direction, and supervision over bureaus and
offices under the jurisdiction of the Secretary of the Interior, but this section should be interpreted in
relation to section 86 of the same Code which grants to the Department of the Interior "executive
supervision over the administration of provinces, municipalities, chartered cities and other local
political subdivisions." In the case of Planas vs. Gil (37 Off. Gaz., 1228), we observed that
"Supervision is not a meaningless thing. It is an active power. It is certainly not without limitation, but
it at least implies authority to inquire into facts and conditions in order to render the power real and
effective. If supervision is to be conscientious and rational, and not automatic and brutal, it must be
founded upon a knowledge of actual facts and conditions disclosed after careful study and
investigation." The principle there enunciated is applicable with equal force to the present case.
We hold, therefore, that the Secretary of the Interior is invested with authority to order the
investigation of the charges against the petitioner and to appoint a special investigator for that
purpose.
As regards the challenged power of the Secretary of the Interior to decree the suspension of the
herein petitioner pending an administrative investigation of the charges against him, the question, it
may be admitted, is not free from difficulties. There is no clear and express grant of power to the
secretary to suspend a mayor of a municipality who is under investigation. On the contrary, the
power appears lodged in the provincial governor by section 2188 of the Administrative Code which
provides that "The provincial governor shall receive and investigate complaints made under oath
against municipal officers for neglect of duty, oppression, corruption or other form of
maladministration of office, and conviction by final judgment of any crime involving moral turpitude.
For minor delinquency he may reprimand the offender; and if a more severe punishment seems to
be desirable he shall submit written charges touching the matter to the provincial board, furnishing a
copy of such charges to the accused either personally or by registered mail, and he may in such
case suspend the officer (not being the municipal treasurer) pending action by the board, if in his
opinion the charge be one affecting the official integrity of the officer in question. Where suspension
is thus effected, the written charges against the officer shall be filed with the board within five days."
The fact, however, that the power of suspension is expressly granted by section 2188 of the
Administrative Code to the provincial governor does not mean that the grant is necessarily exclusive
and precludes the Secretary of the Interior from exercising a similar power. For instance, counsel for
the petitioner admitted in the oral argument that the President of the Philippines may himself
suspend the petitioner from office in virtue of his greater power of removal (sec. 2191, as amended,
Administrative Code) to be exercised conformably to law. Indeed, if the President could, in the
manner prescribed by law, remove a municipal official, it would be a legal incongruity if he were to be
devoid of the lesser power of suspension. And the incongruity would be more patent if, possessed of
the power both to suspend and to remove a provincial official (sec. 2078, Administrative Code), the
President were to be without the power to suspend a municipal official. Here is, parenthetically, an
instance where, as counsel for petitioner admitted, the power to suspend a municipal official is not
exclusive. Upon the other hand, it may be argued with some degree of plausibility that, if the
Secretary of the Interior is, as we have hereinabove concluded, empowered to investigate the
charges against the petitioner and to appoint a special investigator for that purpose, preventive
suspension may be a means by which to carry into effect a fair and impartial investigation. This is a
point, however, which, for the reason hereinafter indicated, we do not have to decide.
The Solicitor-General argues that section 37 of Act No. 4007, known as the Reorganization Law of
1932, by providing, "the provisions of the existing law to the contrary notwithstanding," that
"whenever a specific power, authority, duty, function, or activity is entrusted to a chief of bureau,
office, division or service, the same shall be understood as also conferred upon the proper
Department Head who shall have authority to act directly in pursuance thereof, or to review, modify
or revoke any decision or action of said chief of bureau, office, division or service", should be
interpreted to concede to the Secretary of the Interior the power to suspend a mayor of a

municipality. The argument is so generally sweeping that, unless distinctions are made, the effect
would be the complete abrogation at will of the powers of provincial and municipal officials even in
corporate affairs of local governments. Under the theory suggested by the Solicitor-General, the
Secretary of the Interior could, as observed by able counsel for the petitioner, enter into a contract
and sign a deed of conveyance of real property in behalf of a municipality against the opposition of
the mayor thereof who is the local official authorized by law to do so (sec. 2196, Revised
Administrative Code), or in behalf of a province in lieu of the provincial governor thereof (sec
2068, Ibid.), and otherwise exercise powers of corporate character mentioned in sections 2067 and
2175 of the Revised Administrative Code and which are lodged in the corresponding provincial and
municipal officials. And if the power of suspension of the Secretary of the Interior is to be justified on
the plea that the pretended power is governmental and not corporate, the result would be more
disastrous. Then and thereunder, the Secretary of the Interior, in lieu of the mayor of the municipality,
could directly veto municipal ordinances and resolutions under section 2229 of the Revised
Administrative Code; he could, without any formality, elbow aside the municipal mayor and himself
make appointments to all non-elective positions in the municipal service, under section 2199 of the
Revised Administrative Code; he could, instead of the provincial governor, fill a temporary vacancy in
any municipal office under subsection (a), section 2188, as amended, of the said Code; he-could
even directly appoint lieutenants of barrios and wrest the authority given by section 2218 of the
Revised Administrative Code to a municipal councilor. Instances may be multiplied but it is
unnecessary to go any further. Prudence, then, dictates that we should hesitate to accept the
suggestion urged upon us by the Solicitor-General, especially where we find the path indicated by
him neither illuminated by the light of our own experience nor cemented by the virtuality of legal
principles but is, on the contrary, dimmed by the recognition however limited in our own Constitution
of the right of local self-government and by the actual operation and enforcement of the laws
governing provinces, chartered cities, municipalities and other political subdivisions. It is not any
question of wisdom of legislation but the existence of any such destructive authority in the law
invoked by the Government that we are called upon to pass and determine here.
In the deliberation of this case it has also been suggested that, admitting that the President of the
Philippines is invested with the authority to suspend the petitioner, and it appearing that he had
verbally approved or at least acquiesced in the action taken by the Secretary of the Interior, the
suspension of the petitioner should be sustained on the principle of approval or ratification of the act
of the Secretary of the Interior by the President of the Philippines. There is, to be sure, more weight
in this argument than in the suggested generalization of section 37 of Act No. 4007. Withal, at first
blush, the argument of ratification may seem plausible under the circumstances, it should be
observed that there are certain prerogative acts which, by their very nature, cannot be validated by
subsequent approval or ratification by the President. There are certain constitutional power and
prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no
amount of approval or ratification will validate the exercise of any of those powers by any other
person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial
law (par. 3, sec. 11, Art. VII) and the exercise by him of the benign prerogative of mercy (par. 6, sec.
11, idem). Upon the other hand, doubt is entertained by some members of the court whether the
statement made by the Secretary to the President in the latter's behalf and by his authority that the
President had no objection to the suspension of the petitioner could be accepted as an affirmative
exercise of the power of suspension in this case, or that the verbal approval by the President of the
suspension alleged in a pleading presented in this case by the Solicitor-General could be considered
as a sufficient ratification in law.
After serious reflection, we have decided to sustain the contention of the government in this case on
the board proposition, albeit not suggested, that under the presidential type of government which we
have adopted and considering the departmental organization established and continued in force by
paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative
organizations are adjuncts of the Executive Department, the heads of the various executive

departments are assistants and agents of the Chief Executive, and except in cases where the Chief
Executive is required by the Constitution or the law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments, and the acts of the secretaries
of such departments, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.
(Runkle vs. United States [1887], 122 U. S., 543; 30 Law. ed., 1167: 7 Sup. Ct. Rep., 1141; see
also U. S. vs. Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones vs. U. S. [1890], 137 U. S., 202;
34 Law. ed., 691; 11 Sup. Ct., Rep., 80; Wolsey vs.Chapman [1880], 101 U. S., 755; 25 Law. ed.,
915: Wilcox vs. Jackson [1836], 13 Pet., 498; 10 Law. ed., 264.)
Fear is expressed by more than one member of this court that the acceptance of the principle of
qualified political agency in this and similar cases would result in the assumption of responsibility by
the President of the Philippines for acts of any member of his cabinet, however illegal, irregular or
improper may be these acts. The implications, it is said, are serious. Fear, however, is no valid
argument against the system once adopted, established and operated. Familiarity with the essential
background of the type of government established under our Constitution, in the light of certain wellknown principles and practices that go with the system, should offer the necessary explanation. With
reference to the Executive Department of the government, there is one purpose which is crystalclear and is readily visible without the projection of judicial searchlight, and that is, the establishment
of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the
Executive Department, begins with the enunciation of the principles that "The executive power shall
be vested in a President of the Philippines." This means that the President of the Philippines is the
Executive of the Government of the Philippines, and no other. The heads of the executive
departments occupy political positions and hold office in an advisory capacity, and, in the language
of Thomas Jefferson, "should be of the President's bosom confidence" (7 Writings, Ford ed., 498),
and, in the language of Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the
direction of the President." Without minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of that of the President. Stated
otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United
States, "each head of a department is, and must be, the President's alter ego in the matters of that
department where the President is required by law to exercise authority" (Myers vs. United States,
47 Sup. Ct. Rep., 21 at 30; 272 U. S., 52 at 133; 71 Law. ed., 160). Secretaries of departments, of
course, exercise certain powers under the law but the law cannot impair or in any way affect the
constitutional power of control and direction of the President. As a matter of executive policy, they
may be granted departmental autonomy as to certain matters but this is by mere concession of the
executive, in the absence of valid legislation in the particular field. If the President, then, is the
authority in the Executive Department, he assumes the corresponding responsibility. The head of a
department is a man of his confidence; he controls and directs his acts; he appoints him and can
remove him at pleasure; he is the executive, not any of his secretaries. It is therefore logical that he,
the President, should be answerable for the acts of administration of the entire Executive
Department before his own conscience no less than before that undefined power of public opinion
which, in the language of Daniel Webster, is the last repository of popular government. These are the
necessary corollaries of the American presidential type of government, and if there is any defect, it is
attributable to the system itself. We cannot modify the system unless we modify the Constitution, and
we cannot modify the Constitution by any subtle process of judicial interpretation or constitution.
The petition is hereby dismissed, with costs against the petitioner. So ordered.
Avancea, C. J., Diaz, and Concepcion, JJ., concur.

Separate Opinions
VILLA-REAL, J., concurring in the result:
I concur in the result. The Secretary of the Interior is nowhere given the power to suspend a
municipal elective officer pending charges, and in the absence of such power he may not suspend
him. The power to suspend cannot be implied even from an arbitrary power to remove, except where
the power to remove is limited to cause; in such case, the power to suspend, made use of as a
disciplinary power pending charges, is regarded as included within the power of removal (46 Corpus
Juris, sec. 142, page 982). Provincial governors alone are expressly empowered to suspend
municipal officers under certain conditions by section 2188 of the Revised Administrative Code, and
the President of the Philippines by section 2191, as amended, of the same Code. Though the
suspension of the petitioner by the Secretary of the Interior was unauthorized, the implied approval
by the President of the Philippines validated such suspension.
IMPERIAL, J., concurring and dissenting:
I concur in the result because in my opinion (1) the President of the Philippines, under sections 64
(b), and 2191 of the Revised Administrative Code, as the latter has been amended, and section 11
(1), Article VII, of the Constitution, is vested with the power to expel and suspend municipal officials
for grave misconduct, and it appears that the suspension was ordered by virtue of that authority; and
(2) the Secretary of the Interior acted within the powers conferred upon him by section 79 (C), in
connection with section 86, of the Revised Administrative Code, as amended, in ordering an
administrative investigation of the charges against the petitioner, in his capacity as mayor of the
municipality of Makati, Province of Rizal.
It is a fact that, as a result of the investigation conducted by the Division of Investigation of the
Department of Justice, the respondent, in turn, ordered the administrative investigation of the
petitioner and recommend his temporary suspension to the President of the Philippines to preclude
him from exerting pressure upon the witnesses who would testify in the investigation, and that the
President of the Philippines, through Secretary Jorge B. Vargas, stated that he had no objection to
the suspension. The act of the President of the Philippines, in my opinion, was an exercise of his
power to suspend the petitioner and the statement that he had no objection was, at bottom, an order
of suspension. The circumstance that in the communication which the respondent addressed to the
petitioner it appeared as though the suspension had been ordered by him, is immaterial and does
not alter the merits of the case, as the facts disclose that the order of suspension came directly from
the President of the Philippines.
However, I dissent from the conclusion of the majority that, under the existing presidential system of
government and in view of the fact that the department secretaries are, in the last analysis, agents of
the executive, the acts of the said officials are presumptively deemed the acts of the executive and
that, consequently, the suspension of the petitioner directed by the respondent should be
considered, under the same theory, as the suspension decreed by the President of the Philippines. I
believe that the principle thus enunciated is at once dangerous and without legal sanction. Under the
law each of these officials has his own powers and duties and I doubt seriously if it has ever been
the intention of the legislative to confuse their duties and prerogatives, for otherwise it would be
difficult, if not impossible, to limit and fix responsibility. The respondent himself could not have so
understood the law when, under the facts, in order to suspend the petitioner he found it necessary to
obtain the express authority of the President of the Philippines.

MORAN, J., concurring and dissenting:


I concur in the result.
The ratio dicidendi of the case is contained in the following paragraph of the majority decision:
. . ., that under the presidential type of government which we have adopted and considering
the departmental organization established and continued in force by paragraph 1, section 12,
Article VII, of our Constitution, all executive and administrative organizations are adjuncts of
the Executive Department, the heads of the various executive departments are assistants
and agents of the Chief Executive, and, except in cases where the Chief Executive is
required by the Constitution or the law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative functions of the
Chief Executive are performed by and through the executive departments, and the acts of
the secretaries of such departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive, presumptively the
acts of the Chief Executive. . . .
If by this proposition it is meant that the power of suspension residing in the President may validly be
exercised by the Secretary of the Interior in his own name, and his act, unless disapproved or
reprobated by the President, is presumptively the act of the President, I disagree. The implications
involved in the proposition are serious. Suppose the Secretary of Justice, pending proceedings
against a judge of first instance, suspends him temporarily, a power vested in the President (section
173, Adm. Code), is the suspension valid in the silence of the President? Suppose the Secretary of
Public Works and Communications removes the Director of Posts , is the removal the act of the
President if not disapproved by the latter? Suppose the Secretary of the Interior grants conditional
pardon to a prisoner, is the pardon valid unless reprobated by the President? The answer are selfevident.
It is true that the majority decision makes exception of the powers which the Chief Executive, by
Constitution, by law, or by the exigencies of the situation, should exercise in person. The distinction,
however, thus sought to be established between the powers which the President should exercise in
person and those which he may exercise thru the department secretaries, if it exists at all, is
extremely shadowy and in fact can nowhere be found in the Constitution, in the law or practices of
administration. On the contrary, the weight of wisdom and authority is that powers committed or
intrusted by the Constitution or by law to the President must be exercised by him positively and in
person. The only functions of the President which, in my opinion, may be performed by the
department secretaries are those which are preliminary or preparatory to the exercise of his powers,
such as, in investigation, research and other inquiries which may be necessary for a wise and
judicious exercise of his judgment or discretion. This opinion finds corroboration in section 79-A of
the Administrative Code.
The proposition contained in the majority decision is even of much wider scope than is above stated,
for it conveys the idea that all the functions of the executive branch of the government are in the
President, with the executive departments as mere adjuncts to him and the department secretaries
his mere assistants or agents with no authority, function or responsibility of their own, except those
emanating from the President, and that, therefore, as they cannot act but at the will of the President,
all their acts, unless disapproved or reprobated by the President, are presumptively the acts of the
Presidents. This sweeping statement is undoubtedly inspired by section 1, Article VII, of the
Constitution, which provides that "the executive power shall be vested in a President of the
Philippines." It disregards, however, the true meaning of other provisions of the Constitution, such as
paragraph 1 of section 12 of the same article, which provides that "executive departments of the

present Government of the Philippine Islands shall continue as now authorized by law until the
National Assembly shall provide otherwise." (Emphasis supplied.)
According to section 74 of the Administrative Code ". . . the departments are established for the
proper distribution of the work of the executive, for the performance of the functions expressly
assigned to them by law, and in order that each branch of the administration may have a
chief responsible for its direction and policy." (Emphasis supplied.) To give effect to this provision,
each department head is expressly vested with broad as well as specific powers commensurate with
his responsibility, such as the powers to ". . . promulgate, whenever he may see fit to do so, all rules,
regulations, orders, circulars, . . . necessary to regulate the proper working and harmonious and
efficient administration of each and all of the offices and dependencies of his department, and for the
strict enforcement and proper execution of the laws relative to matters under the jurisdiction of said
department" (section 79-B, Adm. Code); the power of direction and supervision over such bureaus
and offices under his jurisdiction, and to repeal or modify the decisions of the chief of said bureaus
or offices when advisable in the public interest (section 79-C, Adm. Code; section 37, Act No. 4007);
the power to appoint subordinate officers and employees whose appointment is not expressly vested
by law in the President, and to remove and punish them except as specially provided otherwise in
accordance with the Civil Service Law (section 79-D, Adm. Code), etc. All these powers are
continued in force by the Constitution.
Thus, while in one provision the Constitution vests in the President of the Philippines the executive
power of the government, in another the same Constitution recognizes the powers of the department
secretaries conferred upon them by law. The apparent conflict between the two provisions is
reconciled by the Constitution itself by means of the power of control vested in the President over
the executive departments. That power of control could not have been intended to wipe out or
supersede all the powers of the department secretaries, for, otherwise, those powers would not have
been continued in force by the Constitution. It would certainly be an absurdity in the Constitution to
recognize and at the same time abrogate those powers. On the contrary, the creation of the power of
control implies the preservation, not the destruction, of all the powers conferred by law upon the
department secretaries. In fact, the majority admits the existence of those powers, subject, of
course, to the powers of control of the President. Now, the power of control may or may not be
exercised. If not exercised, the acts of the department secretaries in pursuance of their powers
would remain in full force and effect, and are their own acts and not the President's. If exercised, by
way of disapproval or reprobation of the acts of the department secretaries, the acts so reprobated
are still their acts and not the President's.
There is more theory than law in the statement that the personally of the department secretaries is
but the projection of that of the President. There is more truth in the language used by Chief Justice
Taft, as quoted in the majority opinion, to the effect that "each head of a department is, and must be,
the President's alter ego in the matters of that department where the President is required by law to
exercise authority" (emphasis supplied.). For it is only when the President exercises his authority
and powers that the department secretaries act merely as his assistants, agents or advisers, and, in
such cases, their acts are his. But when they act in accordance with the powers vested in them by
law, they act with a personality separate from and no less distinct than that of the President himself,
if the recognition accorded to their powers by the Constitution is to mean anything at all. And the fact
that the government we have instituted is a presidential one in no wise destroys what the law has
created and the Constitution has recognized. The presidential system of government could not have
been intended to supersede a government of laws for a government of men.
If, as stated by the majority, all the official acts of the secretaries of the departments are
presumptively the acts of the President, it must follow that the President is presumptively responsible
therefor. That this corrollary proposition cannot be maintained is obvious. At every instance, he

would be called upon to accountability for acts of which he might not have any knowledge at all and
for which he could in no wise be held responsible. In the complicated activities of each department,
multifarious official acts have to be performed from time to time. Very often these acts are performed
in pursuance of powers and duties expressly lodged in them by law; and, occasionally, upon
authority and direction of the President in the latter's exercise of his power of control. In the
performance of such acts, executive and administrative discretion had to be exercised for which
responsibility must accordingly be exclusive and purely personal. To hold the President
presumptively responsible for such acts would suggest, in effect, the necessity on the part of the
President to exercise constant and unrelaxing vigilance over all the official acts of the secretaries of
the departments, under hazard of being involved in endless difficulties. The manifold exigencies of
government render such a suggestion inconceivable.
My view, therefore, is that the department secretaries may act in a purely advisory capacity or under
the direction and authority of the President in the latter's exercise of his constitutional power of
control, and, in such cases, the proposition contained in the majority decision applies, because then,
the department secretaries act purely for the Chief Executive. However, they may also act in
pursuance of the powers and duties conferred upon them by law and continued in force by the
Constitution, and, unless the President desires to intervene, in appropriate cases, by interposing his
constitutional power of control, the acts of the department secretaries are exclusively their own, and
they are likewise exclusively responsible therefor. It follows that when a department secretary acts in
his own name and not by order or authority of the President, he is presumed to be so acting in
pursuance of a power conferred upon him by law, and when the power is not thus conferred, his act
is null and void. And if the power is conferred expressly upon the President, he must exercise it
positively and in person with such assistance, advice and recommendation of the corresponding
department head, as he himself may choose to demand. Accordingly, the bare statement made by
the President of his non-objection to the action taken by the Secretary of the Interior in the present
case is not a sufficient exercise of his power to suspend, for it may mean neither approval nor
disapproval. The President probably believed, and indeed rightly as I shall hereafter show, that the
power to suspend the petitioner also resided in the Secretary of the Interior, and called upon to
exercise his power of supervision, he confined himself to making a mere statement of non-objection
to the latter's exercise of his power. This, in my opinion, is the most rational explanation of the
passive attitude thus observed by the President. I am almost sure that had he intended to exercise
his own power to suspend, he would have done so, as usually, in a manner that would not admit of
any possibility of doubt.
Moreover, besides the written statement of non-objection made by the President, it is claimed by the
Solicitor-General that the President expressly and orally approved the order of suspension issued by
the Secretary of the Interior. Such supposed oral approval alleged in the respondent's answer is,
however, deemed controverted by the petitioner, according to section 104 of Act No. 190, and, not
being supported by proof, it cannot be considered as true fact in the disposition of this case.
If I agree with the result, it is not therefore on the broad proposition relied upon by the majority, but
from what is necessary implied from express provisions of law. Section 37 of Act No. 4007 provides:
The provisions of the existing law to the contrary notwithstanding, whenever a specific
power, authority, duty, function or activity is entrusted to a chief of bureau, office, division or
service, the same shall be understood as also conferred upon the proper Department Head
who shall have authority to act directly in pursuance thereof, or to review, modify or revoke
any decision or action of said chief of bureau, office, division or service.
There can be no question that the word "division" in the above provision has no other reference than
to provinces and municipalities (Chapter 2 and section 86, Adm. Code). It is then evident that this

provision confers upon the Secretary of the Interior the power residing in the provincial governor
(section 2188, Adm. Code) to decree the suspension of the petitioner pending an administrative
investigation of the charges against him. That this is the true meaning of the law, the majority does
not question.
Fear, however, has been expresses in the majority opinion that this view may result in the complete
abrogation of the powers of provincial and municipal officials even in corporate affairs of local
governments. Instances are cited in which the Secretary of the Interior may exercise for himself the
powers vested by law in provincial governors and municipal mayors as to matters of both
governmental and corporate functions of provinces and municipalities, such as, the power to veto,
the power to appoint, and the power to enter into contracts. Whether or not the Secretary of the
Interior can thus exercise the powers vested by law in provincial and municipal executives in the
instances cited, to the complete abrogation of provincial and municipal autonomy, is a question
which I need not discuss now. Other provisions of law and a number of collateral questions may
have to be inquired into if any safe conclusion is to be formed. But even if, as feared, the law has the
effect of nullifying the powers conferred upon provincial and municipal executives, can there be any
doubt that the law can do so? The same authority that creates those powers may withdraw or qualify
them at will or provide effective measures of supervision over their exercise. The extent or even the
existence of local autonomy is a matter which lies within the exclusive prerogative of the Legislature
to define. If the law is clear, or duty to apply it is just as clear, irrespective of how destructive it may
be of the autonomy of local governments. To refuse to apply a law, which is otherwise applicable and
is valid and constitutional, simply because it does violence to our theory of government, would, in
effect, be imposing ourselves upon the legislature department of the government and an intrusion
into its own sphere of constitutional authority.
Moreover, the law is not of such "destructive authority" as the majority has pictured it to be. The
philosophy behind this provision is apparent. It is intended to supply possible omissions or inactions
on the part of the subordinate officers concerned by reason of the entanglement arising from
partisan activities. The power which the law confers upon the department head is undoubtedly
susceptible of abuses. But what power is not susceptible of abuse? In the enactment of the law, the
legislature undoubtedly relied much on the sense of patriotism and sound judgment of the
department head. It is perhaps the intention of the law that the department head should exercise his
power in a manner compatible with the autonomy given the local governments, and that he should
act directly only when the exigencies of the situation require him to act in the interest of the Nation.
Thus, the department head is given ample discretion. The possibility of a mischievous or disastrous
abuse of power on his part is not entirely without any remedy at all. The presidential power of control
over executive departments and the existence of judicial remedies may afford effective check or
redress. In the instant case, there is no showing that the Secretary of the Interior has abused, or
even intended to abuse the power of suspension. If a capricious and whimsical use of such power
presents itself to us for determination in some future time, then and there must we declare where
one power begins and the other ends.
As the law, therefore, is not unconstitutional, we would be ignoring it clear provision if not applied in
this case.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17169

November 30, 1963

ISIDRO C. ANG-ANGCO, petitioner,


vs.
HON. NATALIO P. CASTILLO, ET AL., respondents.
Juan T. David for petitioner.
Office of the Solicitor General for respondents.
BAUTISTA ANGELO, J.:
On October 8, 1956, the Pepsi-Cola Far East Trade Development Co., Inc. wrote a letter to the
Secretary of Commerce and Industry requesting for special permit to withdraw certain commodities
from the customs house which were imported without any dollar allocation or remittance of foreign
exchange. Said commodities consisted of 1,188 units of pepsi-cola concentrates which were not
covered by any Central Bank release certificate. On the same date, the company addressed an
identical request to the Secretary of Finance who was also the Chairman of the Monetary Board of
the Central Bank. Senator Pedro Sabido, in behalf of the company, likewise wrote said official urging
that authority be given to withdraw the abovementioned concentrates. Not content with this step, he
also wrote to Dr. Andres Castillo, Acting Governor of the Central Bank, urging, the same matter.
Then Secretary Hernandez wrote another letter to Dr. Castillo stating, "Senator Sabido is taking this
to you personally. Unless we have legal objection, I would like to authorize the withdrawal of the
concentrates upon payment of all charges in pesos. Please expedite action."
Almost at the same time, the Import-Export Committee of the Central Bank, thru Mr. Gregorio
Licaros, submitted to the Monetary Board a memorandum on the joint petition of the company and
Sabido Law Office for authority to withdraw the concentrates from the customs house stating therein
that it sees no objection to the proposal. The Monetary Board, however, failed to take up the matter
in its meeting of October 12, 1956 for the reason that the transaction did not involve any dollar
allocation or foreign exchange, and of this decision Mr. Licaros was informed.
Having failed to secure the necessary authority from the Central Bank, on October 13, 1956, the
counsel of the Pepsi-Cola Far East Trade Development Co., Inc., approached Collector of Customs
Isidro Ang-Angco in an attempt to secure from him the immediate release of the concentrates, but
this official seeing perhaps that the importation did not carry any release certificate from the Central
Bank advised the counsel to try to secure the necessary release certificate from the No-Dollar Import
Office that had jurisdiction over the case. In the morning of the same day, Mr. Aquiles J. Lopez, of
said Office, wrote a letter addressed to the Collector of Customs stating, among other things, that his
office had no objection to the release of the 1,188 units of concentrates but that it could not take
action on the request as "the same is not within the jurisdiction of the No-Dollar Import Office within
the contemplation of R.A. No. 1410." The counsel already referred to above showed the letter to
Collector of Customs Ang-Angco who upon perusing it still hesitated to grant the release. Instead he
suggested that the letter be amended in order to remove the ambiguity appearing therein, but Mr.
Lopez refused to amend the letter stating that the same was neither a permit nor a release.
Secretary of Finance Hernandez having been contacted by telephone, Collector of Customs AngAngco read to him the letter after which the Secretary verbally expressed his approval of the release
on the basis of said certificate. Collector Ang-Angco, while still in doubt as to the propriety of the
action suggested, finally authorized the release of the concentrates upon payment of the
corresponding duties, customs charges, fees and taxes.

When Commissioner of Customs Manuel P. Manahan learned of the release of the concentrates in
question he immediately ordered their seizure but only a negligible portion thereof remained in the
warehouse. Whereupon, he filed an administrative complaint against Collector of Customs AngAngco charging him with having committed a grave neglect of duty and observed a conduct
prejudicial to the best interest of the customs service. On the strength of this complaint President
Ramon Magsaysay constituted an investigating committee to investigate Ang-Angco composed of
former Solicitor General Ambrosio Padilla, as Chairman, and Atty. Arturo A. Alafriz and Lt. Col. Angel
A. Salcedo, as members. Together with Collector Ang-Angco, Mr. Aquiles J. Lopez, was also
investigated by the same Committee, who was also charged in a separate complaint with serious
misconduct in office or conduct prejudicial to the best interest of the State. As a result, Collector AngAngco was suspended from office in the latter part of December, 1956.
After the investigation, the committee submitted to President Magsaysay its report recommending
that a suspension of 15 days, without pay, be imposed upon Ang-Angco chargeable against the
period of his suspension. On April 1, 1957, Collector Ang-Angco was reinstated to his office by
Secretary Hernandez, but the decision on the administrative case against him remained pending
until the death of President Magsaysay. After around three years from the termination of the
investigation during which period Ang-Angco had been discharging the duties of his office, Executive
Secretary Natalio P. Castillo, by authority of the President, rendered a decision on the case on
February 12, 1960 finding Ang-Angco "guilty of conduct prejudicial to the best interest of the
service", and considering him resigned effective from the date of notice, with prejudice to
reinstatement in the Bureau of Customs.
Upon learning said decision from the newspapers, Collector Ang-Angco wrote a letter to President
Carlos P. Garcia calling attention to the fact that the action taken by Secretary Castillo in removing
him from office had the effect of depriving him of his statutory right to have his case originally
decided by the Commissioner of Civil Service, as well as of his right of appeal to the Civil Service
Board of Appeals, whose decision under Republic Act No. 2260 is final, besides the fact that such
decision is in violation of the guaranty vouchsafed by the Constitution to officers or employees in the
civil service against removal or suspension except for cause in the manner provided by law.
In a letter dated February 16, 1960, Secretary Castillo, also by authority of the President, denied the
request for reconsideration. Not satisfied with this resolution, Collector Ang-Angco sent a
memorandum to President Garcia reiterating once more the same grounds on which he predicated
his request for reconsideration. Again Secretary Castillo, also by authority of the President, in letter
dated July 1, 1960, denied the appeal. In this instance, Secretary Castillo asserted that the President
virtue of his power of control over all executive departments, bureaus and offices, can take direct
action and dispose of the administrative case in question inasmuch as the provisions of law that
would seem to vest final authority in subordinate officers of the executive branch of the government
over administrative matters falling under their jurisdiction cannot divest the President of his power of
control nor diminish the same.
Hence, after exhausting all the administrative remedies available to him to secure his reinstatement
to the office from which he was removed without any valid cause or in violation of his right to due
process of law, Collector Ang-Angco filed before this Court the present petition for certiorari,
prohibition and mandamus with a petition for the issuance of a preliminary mandatory injunction. The
Court gave due course to the petition, but denied the request for injunction.

The main theme of petitioner is that respondent Executive Secretary Natalio P. Castillo in acting on
his case by authority of the President in the sense of considering him as resigned from notice
thereof, violated the guaranty vouchsafed by the Constitution to officers and employees in the
classified service in that he acted in violation of Section 16 (i) of the Civil Service Act of 1959 which
vests in the Commissioner of Civil Service the original and exclusive jurisdiction to decide
administrative cases against officers and employees in the classified service, deprived him of his
right of appeal under Section 18 (b) of the same Act to the Civil Service Board of Appeals whose
decision on the matter is final, and removed him from the service without due process in violation of
Section 32 of the same Act which expressly provides that the removal or suspension of any officer or
employee from the civil service shall be accomplished only after due process, and of Section 4,
Article XII of our Constitution which provides that "No officer or employee in the civil service shall be
removed except for cause as provided for by law." Since petitioner is an officer who belongs to the
classified civil service and is not a presidential appointee, but one appointed by the Secretary of
Finance under the Revised Administrative Code, he cannot be removed from the service by the
President in utter disregard of the provisions of the Civil Service Act of 1959.
Respondents, on their part, do not agree with this theory entertained by petitioner. They admit that if
the theory is to be considered in the light of the provisions of the Civil Service Act of 1959, the same
may be correct, for indeed the Civil Service Law as it now stands provides that all officers and
employees who belong to the classified service come under the exclusive jurisdiction of the
Commissioner of Civil Service and as such all administrative cases against them shall be indorsed to
said official whose decision may be appealed to the Civil Service Board of Appeals from whose
decision no further appeal can be taken. They also admit that petitioner belongs to the classified civil
service. But it is their theory that the pertinent provisions of the Civil Service Law applicable to
employees in the classified service do not apply to the particular case of petitioner since to hold
otherwise would be to deprive the President of his power of control over the officers and employees
of the executive branch of the government. In other words, respondents contend that, whether the
officers or employees concerned are presidential appointees or belong to the classified service, if
they are all officers and employees in the executive department, they all come under the control of
the President and, therefore, his power of removal may be exercised over them directly without
distinction. Indeed, respondents contend that, if, as held in the case ofNegado v. Castro, 55 O.G.,
10534, the President may modify or set aside a decision of the Civil Service Board of Appeals at the
instance of the office concerned, or the respondent employee, or may even do so motu propio, there
would be in the final analysis no logical difference between removing petitioner by direct action of the
President and separating him from the service by ultimate action by the President should an appeal
be taken from the decision of the Civil Service Board of Appeals to him, or if in his discretion he
may motu proprio consider it necessary to review the Board's decision. It is contended that this ruling
still holds true in spite of the new provision wrought into the law by Republic Act 2260 which
eliminated the power of review given to the President because the power of control given by the
Constitution to the President over officers and employees in the executive department can only be
limited by the Constitution and not by Congress, for to permit Congress to do so would be to
diminish the authority conferred on the President by the Constitution which is tantamount to
amending the Constitution itself (Hebron v. Reyes, L- 9124, July 28, 1958). Indeed this is the
argument invoked by respondent Castillo in taking direct action against petitioner instead of following
the procedure outlined in the Civil Service Act of 1959 as may be seen from the following portion of
his decision.
In connection with the second ground advanced in support of your petition, it is contended
that in deciding the case directly, instead of transmitting it to the Commissioner of Civil

Service for original decision, his Office deprived the respondent of his right to appeal to the
Civil Service Board of Appeals. This contention overlooks the principle that the President
may modify or set aside a decision of the Civil Service Board of Appeals at the instance of
either the office concerned or the respondent employee, or may even do so motu proprio
(Negado vs. Castro, 55 O.G, No. 51, p. 10534, Dec. 21, 1959). There would therefore be no
difference in effect between direct action by the President and ultimate action by him should
an appeal be taken from the decision of the Commissioner of Civil Service or the Civil
Service Board of Appeals. The result is that the President's direct action would be the final
decision that would be reached in case an appeal takes its due course.
Thus, we see that the main issue involved herein is whether the President has the power to take
direct action on the case of petitioner even if he belongs to the classified service in spite of the
provisions now in force in the Civil Service Act of 1959. Petitioner sustains the negative contending
that the contrary view would deprive him of his office without due process of law while respondents
sustain the affirmative invoking the power of control given to the President by the Constitution over
all officers and employees, belonging to the executive department.
To begin with, we may state that under Section 16 (i) of the Civil Service Act of 1959 it is the
Commissioner of Civil Service who has original and exclusive jurisdiction to decide administrative
cases of all officers and employees in the classified service for in said section the following is
provided: "Except as otherwise provided by law, (the Commissioner shall) have final authority to
pass upon the removal, separation and suspension of all permanent officers and employees in the
competitive or classified service and upon all matters relating to the employees." The only limitation
to this power is that the decision of the Commissioner may be appealed to the Civil Service Board of
Appeals, in which case said Board shall decide the appeal within a period of 90 days after the same
has been submitted for decision, whose decision in such case shall be final (Section 18, Republic
Act 2260). It should be noted that the law as it now stands does not provide for any appeal to the
President, nor is he given the power to review the decision motu proprio, unlike the provision of the
previous law, Commonwealth Act No. 598, which was expressly repealed by the Civil Service Act of
1959 (Rep. Act 2260), which provides that the decision of the Civil Service Board of Appeals may be
reversed or modified motu proprio by the President. It is, therefore, clear that under the present
provision of the Civil Service Act of 1959, the case of petitioner comes under the exclusive
jurisdiction of the Commissioner of Civil Service, and having been deprived of the procedure laid
down therein in connection with the investigation and disposition of his case, it may be said that he
has been deprived of due process as guaranteed by said law.
It must, however, be noted that the removal, separation and suspension of the officers and
employees of the classified service are subject to the saving clause "Except as otherwise provided
by law" (Section 16 [i], Republic Act No. 2260). The question then may be asked: Is the President
empowered by any other law to remove officers and employees in the classified civil service?
The only law that we can recall on the point is Section 64 (b) of the Revised Administrative Code, the
pertinent portion of which we quote:
(b) To remove officials from office conformably to law and to declare vacant the offices held
by such removed officials. For disloyalty to the (United States) Republic of the Philippines,
the (Governor-General) President of the Philippines may at any time remove a person from
any position of trust or authority under the Government of the (Philippine Islands)
Philippines.

The phrase "conformably to law" is significant. It shows that the President does not have blanket
authority move any officer or employee of the government but his power must still be subject to the
law that passed by the legislative body particularly with regard the procedure, cause and finality of
the removal of persons who may be the subject of disciplinary action. Here, as above stated we
have such law which governs action to be taken against officers and employees in classified civil
service. This law is binding upon President.
Another provision that may be mentioned is Section (D) of the Revised Administrative Code, which
provides:
Power to appoint and remove. The Department Head, the recommendation of the chief of
the Bureau or office concerned, shall appoint all subordinate officers and employees
appointment is not expressly vested by law in the (Governor-General) President of the
Philippines, and may remove or punish them, except as especially provided otherwise, in
accordance the Civil Service Law.
The phrase "in accordance with the Civil Service is also significant. So we may say that even
granting for administrative purposes, the President of the Philippines is considered as the
Department Head of the Civil Service Commission, his power to remove is still subject to the Civil
Service Act of 1959, and we already know with regard to officers and employees who belong to
classified service the finality of the action is given to the Commissioner of Civil Service or the Civil
Board of Appeals.
Let us now take up the power of control given to President by the Constitution over all officers and
employees in the executive department which is now in by respondents as justification to override
the specific visions of the Civil Service Act. This power of control couched in general terms for it does
not set in specific manner its extent and scope. Yes, this Court in the case of Hebron v.
Reyes, supra, had already occasion to interpret the extent of such power to mean "the power of an
officer to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the latter," 1 to
distinguish it from the power of general supervision over municipal government, but the decision
does not go to the extent of including the power to remove an officer or employee in the executive
department. Apparently, the power merely applies to the exercise of control over the acts of the
subordinate and not over the actor or agent himself of the act. It only means that the President may
set aside the judgment or action taken by a subordinate in the performance of his duties.
That meaning is also the meaning given to the word "control" as used in administrative law. Thus,
the Department Head pursuant to Section 79(C) is given direct control of all bureaus and offices
under his department by virtue of which he may "repeal or modify decisions of the chiefs of said
bureaus or offices", and under Section 74 of the same Code, the President's control over the
executive department only refers to matters of general policy. The term "policy" means a settled or
definite course or method adopted and followed by a government, body, or individual, 2 and it cannot
be said that the removal of an inferior officer comes within the meaning of control over a specific
policy of government.
But the strongest argument against the theory of respondents is that it would entirely nullify and set
at naught the beneficient purpose of the whole civil service system implanted in this jurisdiction,
which is to give stability to the tenure of office of those who belong to the classified service, in
derogation of the provisions of our Constitution which provides that "No officer or employee in the

civil service shall be removed or suspended except for cause as provided by law" (Section 4, Article
XII, Constitution).Here, we have two provisions of our Constitution which are apparently in conflict,
the power of control by the President embodied in Section 10 (1), Article VII, and the protection
extended to those who are in the civil service of our government embodied in Section 4, Article XII. It
is our duty to reconcile and harmonize these conflicting provisions in a manner that may give to both
full force and effect and the only logical, practical and rational way is to interpret them in the manner
we do it in this decision. As this Court has aptly said in the case of Lacson v. Romero:
... To hold that civil service officials hold their office at the will of the appointing power subject
to removal or forced transfer at any time, would demoralize and undermine and eventually
destroy the whole Civil Service System and structure. The country would then go back to the
days of the old Jacksonian Spoils System under which a victorious Chief Executive, after the
elections could if so minded, sweep out of office, civil service employees differing in Political
color or affiliation from him, and sweep in his Political followers and adherents, especially
those who have given him help, political or otherwise. (Lacson v. Romero, 84 Phil. 740, 754)
There is some point in the argument that the Power of control of the President may extend to the
Power to investigate, suspend or remove officers and employees who belong to the executive
department if they are presidential appointees or do not belong to the classified service for such can
be justified under the principle that the power to remove is inherent in the power to appoint (Lacson
V. Romero, supra), but not with regard to those officers or employees who belong to the classified
service for as to them that inherent power cannot be exercised. This is in line with the provision of
our Constitution which says that "the Congress may by law vest the appointment of the inferior
officers, in the President alone, in the courts, or in heads of department" (Article VII, Section 10 [3],
Constitution). With regard to these officers whose appointments are vested on heads of
departments, Congress has provided by law for a procedure for their removal precisely in view of
this constitutional authority. One such law is the Civil Service Act of 1959.
We have no doubt that when Congress, by law, vests the appointment of inferior officers in
the heads of departments it may limit and restrict power of removal as it seem best for the
public interest. The constitutional authority in Congress to thus vest the appointment implies
authority to limit, restrict, and regulate the removal by such laws as Congress may enact in
relation to the officers so appointed. The head of a department has no constitutional
prerogative of appointment to officers independently of legislation of Congress, and by such
legislation he must be governed, not only in making appointments but in all that is incident
thereto. (U.S. v. Perkins, 116 U.S. 483)
In resume, we may conclude that the action taken by respondent Executive Secretary, even with the
authority of the President, in taking direct action on the administrative case of petitioner, without
submitting the same to the Commissioner of Civil Service, is contrary to law and should be set aside.
WHEREFORE, it is hereby ordered that petitioner be immediately reinstated to his office as Collector
of Customs for the Port of Manila, without prejudice of submitting his case to the Commissioner of
Civil Service to be dealt with in accordance with law. No costs.
Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Parades, Dizon, Regala and Makalintal,
JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-22754

December 31, 1965

RUBEN A. VILLALUZ, petitioner,


vs.
CALIXTO ZALDIVAR, ET AL., respondents.
Magtanggol C. Gunigundo and Juan T. David for petitioner.
Office of the Solicitor General for respondents.
BAUTISTA ANGELO, J.:
Petitioner seeks his reinstatement as Administrator of the Motor Vehicles Office with payment of
back salaries in a petition filed before this Court on April 1, 1964.
He alleged that he was nominated as chief of said office on May 20, 1958 and two days thereafter
his nomination was confirmed by the Commission on Appointments; that on May 26, 1958 he took
his oath of office as such after having been informed of his nomination by then Acting Assistant
Executive Secretary Sofronio C. Quimson; that in a letter dated January 28, 1960 addressed to the
President of the Philippines by Congressman Joaquin R. Roces as Chairman of the Committee on
Good Government of the House of Representatives, the latter informed the former of the findings
made by his Committee concerning alleged gross mismanagement and inefficiency committed by
petitioner in the Motor Vehicles Office which are summed up in the letter, as follows: (1) malpractice
in office resulting in huge losses to the government; (2) failure to correct inadequate controls or
intentional toleration of the same, facilitating thereby the commission of graft and corruption; and (3)
negligence to remedy unsatisfactory accounting; that as a result of said findings. Congressman
Roces recommended the replacement of petitioner and of his assistant chief Aurelio de Leon as well
as the complete revamp of the offices coming under the Motor Vehicles Office by the new chief who
may be appointed thereafter; that having been officially informed of the content of said letter, then
Secretary of Public Works and Communications furnished petitioner with a copy thereof requiring
him to explain within 72 hours why no administrative action should be taken against him relative to
the charges contained in the letter; that petitioner answered the letter as required wherein he
explained and refuted in detail each and everyone of the charges contained in the letter of
Congressman Roces; that on February 15, 1960, the then Executive Secretary Natalio P. Castillo
suspended petitioner as Administrator of the Motor Vehicles Office, having thereupon created an
investigating committee with the only purpose of investigating the charges against petitioner and his
assistant Aurelio de Leon, and to undertake the investigation a prosecution panel was created
headed by Special Prosecutor Emilio A. Gancayco; that after the investigation said committee
submitted its report to the President of the Philippines who thereafter issued Administrative Order
No. 332 decreeing the removal from office of petitioner; that as a result of petitioner's removal
Apolonio Ponio was appointed to take his place as acting administrator; and that, after having been
officially notified of his removal, petitioner filed a motion for reconsideration and/or reinstatement,
and when this was denied, he filed the instant petition before this Court.

Respondents in their answer denied the claim of petitioner that the charges contained in the letter of
Congressman Roces were not directed against him but against his office in general for the truth is
that he was, specifically charged with mismanagement, gross inefficiency and negligence in the
performance of his duties as Chief of the Motor Vehicles Office, and as a result he was required to
the same within 72 hours to explain why no disciplinary action should be taken against him.
Respondents also denied that petitioner was investigated without being accorded due process is
required by law for in fact he was given every reasonable opportunity to present his defense, to
secure the attendance of witnesses, and to produce documents in his behalf in a manner consistent
with administrative due process. Respondent also averred that the President of the Philippines,
contrary to petitioner's claim, has jurisdiction to investigate and remove him since he is a presidential
appointee who belongs to the non-competitive or unclassified service under Section 5 of Republic
Act No. 2260. Respondents finally averred that the letter of Congressman Joaquin R. Roces is in
effect a valid administrative complaint because it contained specific charges which constitute just
causes for his suspension and removal; that said charges need not be sworn to for the Chief
Executive, as administrative head of petitioner, is empowered to commence administrative
proceedings motu proprio pursuant to Executive Order No. 370, series of 1941, without need of any
previous verified complaint. And as special defense respondents averred that petitioner is guilty of
laches for having allowed almost four years before instituting the present action.
There is merit in the claim that petitioner, being a presidential appointee, belongs to the noncompetitive or unclassified service of the government and is such he can only be investigated and
removed from office after due hearing the President of the Philippines under the principle that "the
power to remove is inherent in the power to appoint" as can be clearly implied from Section 5 of
Republic Act No. 2260. Such is what we ruled in the recent case of Ang-Angco wherein on this point
we said:
There is some point in the argument that the power of control of the President may extend to
the power to investigate, suspend or remove officers and employees who belong to the
executive department if they are presidential appointees or do not belong to the classified
service for such can be justified under the principle that the power to remove is inherent in
the power to appoint (Lacson v. Romero, supra), but not with regard to those officers or
employees who belong, to the classified service for as to them that inherent power cannot be
exercised. This is in line with the provision of our Constitution which says that the "Congress
may by law vest the appointment of inferior officers, in the President alone, in the courts, or
in the head of departments" (Article VII, Section 10 [3], Constitution). (Ang-Angco v. Castillo,
et al., L-17169, November 30, 1963).
Consequently, as a corollary to the foregoing ruling, we may state that the Commissioner of Civil
Service is without jurisdiction to hear and decide the administrative charges filed against petitioner
because the authority of said Commissioner to pass upon questions of suspension, separation, or
removal can only be exercised with reference to permanent officials and employees in the classified
service to which classification petitioner does not belong. This is also what we said in the Ang-Angco
case when, in interpreting Section 16 (i) of Republic Act No. 2260, we emphasized that only
permanent officers and employees who belong to the classified service come under the exclusive
jurisdiction of the Commissioner of Civil Service.
There is, therefore, no error of procedure committed by respondents insofar as the investigation and
disciplinary action taken against petitioner is concerned, even if he is under the control and
supervision of the Department of Public Works, in view of the reason we have already stated that he

is a presidential appointee who comes exclusively under the jurisdiction of the President. The
following rationale supports this view:
Let us now take up the power of control given to the President by the Constitution over all
officers and employees in the executive departments which is now involved by respondent
as justification to override the specific provisions of the Civil Service Act. This power of
control is couched in general terms for it does not set in specific manner its extent and
scope. Yes, this Court in the case of Hebron v. Reyes, supra, occasion to interpret the extent
of such power to mean "the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment
of the former for that of the latter," to distinguish it from the power of general supervision over
municipal government, but the decision does not go to the extent of including the power to
remove an officer or employee in the executive department. Apparently, the power merely
applies to the exercise of control over the acts of the subordinate and not over the actor or
agent himself of the act. It only means that the President may set aside the judgment or
action taken by a subordinate in the performance of his duties.
That meaning is also the meaning given to the word "control" as used in administrative law.
Thus, the Department Head pursuant to Section 79 (c) is given direct control of all bureaus
and offices under his department by virtue of which he may "repeal or modify decisions of
the chiefs of said bureaus or offices," and under Section 74 of the same Code, the
President's control over the executive department only refers to matters of general policy.
The term "policy" means a settled or definite course or method adopted and followed by a
government, body or individual, and it cannot be said that the removal of an inferior officer
comes within the meaning of control over a specific policy of government. (Ang-Angco v.
Castillo, et al.,supra)
With regard to the claim that the administrative proceedings conducted against petitioner which led
to his separation are illegal simply because the charges preferred against him by Congressman
Roces were not sworn to as required by Section 72 of Republic Act No. 2260, this much we can say:
said proceedings having been commenced against petitioner upon the authority of the Chief
Executive who was his immediate administrative head, the same may be commenced by him motu
proprio without previous verified complaint pursuant to Executive Order No. 370, series of 1941, the
pertinent provisions of which are is follows:
(1) Administrative proceedings may be commenced a government officer or employee by the
head or chief of the bureau or office concerned motu proprio or upon complaint of any
person which shall be subscribed under oath by the complainant: Provided, That if a
complaint is not or cannot be sworn to by the complainant, the head or chief of the bureau or
office concerned may in his discretion, take action thereon if the public interest or the special
circumstances of the case, so warrant.1
Finally, on the theory that the instant petition partakes of the nature of quo warranto which seeks
petitioners reinstatement to his former position as Administrator of the Motor Vehicles Office, we are
of the opinion that it has now no legal raison d'etre for having been filed more than one year after its
cause of action had accrued. As this Court has aptly said: "a delay of slightly over one (1) year was
considered sufficient ... to be an action formandamus, by reason of laches or abandonment of office.
We see no reason to depart from said view in the present case, petitioner herein having allowed

about a year and a half to elapse before seeking reinstatement." (Jose V. Lacson, et al., L-10177,
May 17, 1957).
WHEREFORE, petition is denied. No costs.
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal and Bengzon,
JJ., concur.
Zaldivar, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 168613

March 5, 2013

ATTY. MA. ROSARIO MANALANG-DEMIGILLO, Petitioner,


vs.
TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES (TIDCORP),
and its BOARD OF DIRECTORS, Respondents.
x-----------------------x
G.R. No. 185571
TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES, Petitioner,
vs.
MA. ROSARIO S. MANALANG-DEMIGILLO, Respondent.
DECISION
BERSAMIN, J.:
A reorganization undertaken pursuant to a specific statutory authority by the Board of Directors of a
government-owned and government-controlled corporation is valid.
Antecedents
On February 12, 1998, the Philippine Export and Foreign Loan Guarantee was renamed Trade and
Investment Development Corporation of the Philippines (TIDCORP) pursuant to Republic Act No.
8494 entitled An Act Further Amending Presidential Decree No. 1080, As Amended, by Reorganizing
And Renaming the Philippine Export and Foreign Loan Guarantee Corporation, Expanding Its
Primary Purpose, and for Other Purposes.
Republic Act No. 8494 reorganized the structure of TIDCORP. The issuance of appointments in
accordance with the reorganization ensued. Petitioner Rosario Manalang-Demigillo (Demigillo) was

appointed as Senior Vice President (PG 15) with permanent status, and was assigned to the Legal
and Corporate Services Department (LCSD) of TIDCORP.
In 2002, TIDCORP President Joel C. Valdes sought an opinion from the Office of the Government
Corporate Counsel (OGCC) relative to TIDCORPs authority to undertake a reorganization under the
law, whose Section 7 and Section 8 provide as follows:
Section 7. The Board of Directors shall provide for an organizational structure and staffing pattern for
officers and employees of the Trade and Investment Development Corporation of the Philippines
(TIDCORP) and upon recommendation of its President, appoint and fix their remuneration,
emoluments and fringe benefits: Provided, That the Board shall have exclusive and final authority to
appoint, promote, transfer, assign and re-assign personnel of the TIDCORP, any provision of existing
law to the contrary notwithstanding. x x x
Section 8. All incumbent personnel of the Philippine Export and Foreign Loan Guarantee Corporation
shall continue to exercise their duties and functions as personnel of the TIDCORP until
reorganization is fully implemented but not to exceed one (1) year from the approval of this Act. The
Board of Directors is authorized to provide for separation benefits for those who cannot be
accommodated in the new structure. All those who shall retire or are separated from the service on
account of the reorganization under the preceding Section shall be entitled to such incentives, as are
authorized by the Corporation, which shall be in addition to all gratuities and benefits to which they
may be entitled under existing laws.
In Opinion No. 221 dated September 13, 2002,1 then Government Corporate Counsel Amado D.
Valdez opined as follows:
There is no question on the power of the PhilEXIM (also known as TIDCORP) Board of Directors to
undertake a reorganization of the corporations present organizational set-up. In fact, the authority to
provide for the corporations organizational structure is among the express powers granted to
PhilEXIM through its Board.
As to the one-year period to implement a reorganization mentioned in Section 8 of RA 8494, it is our
considered opinion that the same provision refers to the initial reorganization to effect transition from
the Philippine Export and Foreign Loan Guarantee Corporation (Philguarantee) to what is now
known as the Trade and Investment Corporation of the Philippines (TIDCORP). The one-year period
does not, however, operate as a limitation that any subsequent changes in the organizational set-up
pursuant to the authority of the Board to determine the corporations organizational structure under
Section 7 of RA 8494, which is designed to make the corporation more attuned to the needs of the
people or, in this case, the sector of the Philippine economy that it serves, can only be made during
the same one-year period.
On the basis of OGCC Opinion No. 221, the Board of Directors passed Resolution No. 1365, Series
of 2002, on October 22, 2002 to approve a so-called Organizational Refinement/Restructuring Plan
to implement a new organizational structure and staffing pattern, a position classification system,
and a new set of qualification standards.
During the implementation of the Organizational Refinement/Restructuring Plan, the LCSD was
abolished. According to the List of Appointed Employees under the New Organizational Structure of
TIDCORP as of November 1, 2002, Demigillo, albeit retaining her position as a Senior Vice

President, was assigned to head the Remedial and Credit Management Support Sector (RCMSS).
On the same date, President Valdes issued her appointment as head of RCMSS, such appointment
being in nature a reappointment under the reorganization plan.
On December 13, 2002, President Valdes issued a memorandum informing all officers and
employees of TIDCORP that the Board of Directors had approved on December 11, 2002 the
appointments issued pursuant to the newly approved positions under the Organizational
Refinement/Restructuring Plan.
In her letter dated December 23, 2002 that she sent to TIDCORP Chairman Jose Isidro Camacho,
however, Demigillo challenged before the Board of Directors the validity of Resolution No. 1365 and
of her assignment to the RCMSS. She averred that she had been thereby illegally removed from her
position of Senior Vice President in the LCSD to which she had been previously assigned during the
reorganization of July 1998. She insisted that contrary to OGCC Opinion No. 221 dated September
13, 2002 the Board of Directors had not been authorized to undertake the reorganization and
corporate restructuring.
On January 31, 2003, pending determination of her challenge by the Board of Directors, Demigillo
appealed to the Civil Service Commission (CSC), raising the same issues.
TIDCORP assailed the propriety of Demigillos appeal to the CSC, alleging that her elevation of the
case to the CSC without the Board of Directors having yet decided her challenge had been improper
and a clear case of forum-shopping.
Later on, however, TIDCORP furnished to the CSC a copy of Board Decision No. 03-002 dismissing
Demigillos appeal for its lack of merit, thereby rendering the question about the propriety of
Demigillos appeal moot and academic. Board Decision No. 03-002 pertinently reads as follows:
Atty. Demigillo failed to show to the Board that she was prejudiced in the implementation of the
TIDCORP organizational refinements/restructuring. She was reappointed to the same position she
was holding before the reorganization. She was not demoted in terms of salary, rank and status.
There was a (sic) substantial compliance with the requirements of RA 6656, particularly on
transparency. More importantly, the said organizational refinements done and adoption of a new
compensation structure were made in accordance with what is mandated under the Charter of the
Corporation.
WHEREFORE, foregoing premises considered, the Board decided as it hereby decides to DISMISS
the appeal of Atty. Ma Rosario Demigillo for lack of merit. 2
In the meanwhile, by letter dated April 14, 2003, President Valdes informed Demigillo of her poor
performance rating for the period from January 1, 2002 to December 31, 2002, to wit:
After a thorough evaluation/assessment of your job performance for the rating period January 1 to
December 21, 2002, it appears that your over-all performance is Poor.
Records show that you consistently behaved as an obstructionist in the implementation of the
Corporate Business Plan. You failed to demonstrate cooperation, respect and concern towards
authority and other members of the company. You also failed to abide by Civil Service and company
policies, rules and regulation. You miserably failed to adapt and respond to changes. You were very

resentful to new approaches as shown by your vehement objection to new improved policies and
programs. Instead of helping raise the morale of subordinate at high levels (sic) and promote career
and professional growth of subordinates, you tried to block such efforts towards this end.
In view of the foregoing and your failure to prove that you have effectively and efficiently performed
the duties, functions and responsibility (sic) of your position, I am constrained to give you a rating of
"Poor" for your 2002 performance.3
On April 28, 2003, Demigillo formally communicated to Atty. Florencio P. Gabriel Jr., Executive Vice
President of the Operations Group, appealing the "poor rating" given her by President Valdes.
In a memorandum dated May 6, 2003, Atty. Gabriel informed Demigillo that he could not act on her
appeal because of her "failure to state facts and arguments constituting the grounds for the appeal
and submit any evidence to support the same."4
On May 6, 2003, President Valdes issued a memorandum to Demigillo stating that he found no
justification to change the poor rating given to her for the year 2002.
On August 12, 2003, Demigillo received a memorandum from President Valdes stating that her
performance rating for the period from January 1, 2003 to June 2003 "needs improvement,"
attaching the pertinent Performance Evaluation Report Form that she was instructed to return "within
24 hours from receipt."5
Not in conformity with the performance rating, Demigillo scribbled on the right corner of the
memorandum the following comments: "I do not agree and accept. I am questioning the same. This
is pure harassment."
She then appealed the poor performance rating on August 14, 2003, calling the rating a part of
Valdes "unremitting harassment and oppression on her."6
On August 19, 2003, Demigillo reported for work upon the expiration of the 90-day preventive
suspension imposed by the Board of Directors in a separate administrative case for grave
misconduct, conduct prejudicial to the best interest of the service, insubordination and gross
discourtesy. In her memorandum of that date, she informed Atty. Gabriel Jr. of her readiness to
resume her duties and responsibilities, but requested to be allowed to reproduce documents in
connection with the appeal of her performance rating. She further requested that the relevant
grievance process should commence.
It appears that the Board of Directors rendered Decision No. 03-003 dated August 15, 2003
unanimously dropping Demigillo from the rolls.7 Demigillo received the copy of Decision No. 03-003
on August 25, 2003.
Decision of the CSC
On October 14, 2004, the CSC ruled through Resolution No. 0410928 that the 2002 Organizational
Refinements or Restructuring Plan of TIDCORP had been valid for being authorized by Republic Act.
No. 6656; that Section 7 of Republic Act No. 8498 granted a continuing power to TIDCORPs Board
of Directors to prescribe the agencys organizational structure, staffing pattern and compensation

packages; and that such grant continued until declared invalid by a court of competent jurisdiction or
revoked by Congress.
The CSC held, however, that TIDCORPs implementation of its reorganization did not comply with
Section 6 of Republic Act No. 6656;9 that although there was no diminution in Demigillos rank, salary
and status, there was nonetheless a demotion in her functions and authority, considering that the
2002 reorganization reduced her authority and functions from being the highest ranking legal officer
in charge of all the legal and corporate affairs of TIDCORP to being the head of the RCMSS
reporting to the Executive Vice President and having only two departments under her supervision;
and that the functions of Demigillos office were in fact transferred to the Operations Group.
The CSC further held that the dropping from the rolls of Demigillo did not comply with the mandatory
requirement under Section 2, particularly 2.2 Rule XII of the Revised Omnibus Rules on
Appointments and Other Personnel Actions Memorandum Circular No. 40, Series of 1998.
Subsequently, TIDCORP reinstated Demigillo to the position of Senior Vice President in RCMSS, a
position she accepted without prejudice to her right to appeal the decision of the CSC.
Ruling of the CA
Both Demigillo and TIDCORP appealed the decision of the CSC to the Court of Appeals (CA).
Demigillos appeal was docketed as CA-G.R. SP No. 87285. On the other hand, TIDCORPs appeal
was docketed as CA-G.R. SP No. 87295.
In CA-G.R. SP No. 87285, Demigillo partially assailed the CSCs decision, claiming that the CSC
erred: (1) in holding that Section 7 of Republic Act No. 8494 granted the Board of Directors of
TIDCORP a continuing power to reorganize; (2) in holding that the 2002 TIDCORP reorganization
had been authorized by law; and (3) in not holding that the 2002 TIDCORP reorganization was void
ab initio because it was not authorized by law and because the reorganization did not comply with
Republic Act No. 6656.10
In CA-G.R. SP No. 87295, TIDCORP contended that the CSC erred: (1) in ruling that Demigillo had
been demoted as a result of the 2002 TIDCORP reorganization; and (2) in ruling that TIDCORP had
failed to observe the provisions of Section 2, particularly 2.2 Rule XII of the Revised Omnibus Rules
on Appointments and Other Personnel Actions (Memorandum Circular No. 40, Series of 1998) on
dropping from the rolls, to the prejudice of Demigillos right to due process. 11
On June 27, 2005, the CAs Fourth Division promulgated its decision in CAG.R. SP No.
87285,12 which, albeit affirming the ruling of the CSC, rendered a legal basis different from that given
by the CSC, to wit:
In numerous cases citing Section 20 and Section 31, Book III of Executive Order No. 292, otherwise
known as the Administrative Code of 1987, the Supreme Court ruled in the affirmative that the
President of the Philippines has the continuing authority to reorganize the administrative structure of
the Office of the President.
Hence, being the alter ego of the President of the Philippines, the Board of Directors of the private
respondent-appellee is authorized by law to have a continuous power to reorganize its agency.13

Anent Demigillos contention that the 2002 reorganization effected was invalid, the CA ruled:
x x x. In this jurisdiction, reorganizations have been regarded as valid provided they are pursued in
good faith. Reorganization is carried out in good faith if it is for the purpose of economy or to make
bureaucracy more efficient.
In the case at bench, it is our considered opinion that except for her allegations, the petitionerappellant (Demigillo) failed to present sufficient evidence that the reorganization effected in 2002 did
not bear the earmarks of economy and efficiency. Good faith is always presumed. 14
The CA held that Demigillo could not be reinstated to her previous position of Senior Vice President
of the LCSD in view of the legality of the 2002 reorganization being upheld. 15
With respect to CA-G.R. SP No. 87295, the CAs Special Former Thirteenth Division promulgated a
decision on November 28, 2008,16 denying TIDCORPs appeal, and holding that Demigillo had been
demoted and invalidly dropped from the rolls by TIDCORP, explaining:
We do not need to stretch Our imagination that respondent Demigillo, one of the highest ranking
officers of the corporation, was indeed demoted when she was designated to be the head of merely
one sector. She may have retained her title as SVP, but she was deprived of the authority she
previously enjoyed and stripped of the duties and responsibilities assigned to her under the Legal
and Corporate Services. In utter disregard of respondent Demigillos right to security of tenure,
petitioner TIDCORP demoted her in the guise of "reorganization."
xxxx
Next, petitioner TIDCORP asserts that respondent Demigillo was legally dropped from the rolls. This
is a delirious supposition which does not deserve merit at all.
xxxx
Petitioner TIDCORP did not bother to adduce proof that it complied with the rudiments of due
process before dropping Demigillo from the rolls. She was not given the chance to present evidence
refuting the contentious ratings as her employer refused to discuss how it arrived at such
assessment. Her unceremonious dismissal was made even more apparent as she was never
advised of the possibility that she may be separated from service if her rating would not improve for
the next evaluation period.17
Issues
Demigillo filed before this Court a petition for review on certiorari assailing the CA decision in CAG.R. SP No. 87285 (G.R. No. 168613), asserting that the CA gravely erred: (1) in holding that the
Board of Directors of TIDCORP was an alter ego of the President who had the continuing authority
to reorganize TIDCORP; and (2) in holding that the reorganization of TIDCORP effected in 2002 was
valid considering her alleged failure to present evidence sufficiently showing that the reorganization
did not bear the earmarks of economy and efficiency.18Corollarily, she sought her reinstatement to a
position comparable to her former position as Senior Vice President in the LCSD. 19

Likewise, TIDCORP appealed through a petition for review on certiorari, praying for the reversal of
the decision promulgated in CA-G.R. SP No. 87295 (G.R. No. 185571), contending that the CA
erred: (1) in ruling that Demigillo had been demoted as a result of the TIDCORP 2002
reorganization; and (2) in ruling that Demigillo had not been legally dropped from the rolls. 20
On March 8, 2011, the Court En Banc consolidated G.R. No. 168613 and G.R. No. 185571. 21
Ruling of the Court
We deny the petition for review of Demigillo (G.R. No. 168613) for its lack of merit, but grant the
petition for review of TIDCORP (G.R. No. 185571).
G.R. No. 168613
In its comment in G.R. No. 168613,22 TIDCORP argues for the application of the doctrine of qualified
political agency, contending that the acts of the Board of Directors of TIDCORP, an attached agency
of the Department of Finance whose head, the Secretary of Finance, was an alter ego of the
President, were also the acts of the President.
TIDCORPs argument is unfounded.
The doctrine of qualified political agency, also known as the alter ego doctrine, was introduced in the
landmark case of Villena v. The Secretary of Interior.23 In said case, the Department of Justice, upon
the request of the Secretary of Interior, investigated Makati Mayor Jose D. Villena and found him
guilty of bribery, extortion, and abuse of authority. The Secretary of Interior then recommended to the
President the suspension from office of Mayor Villena. Upon approval by the President of the
recommendation, the Secretary of Interior suspended Mayor Villena. Unyielding, Mayor Villena
challenged his suspension, asserting that the Secretary of Interior had no authority to suspend him
from office because there was no specific law granting such power to the Secretary of Interior; and
that it was the President alone who was empowered to suspend local government officials. The
Court disagreed with Mayor Villena and upheld his suspension, holding that the doctrine of qualified
political agency warranted the suspension by the Secretary of Interior. Justice Laurel, writing for the
Court, opined:
After serious reflection, we have decided to sustain the contention of the government in this case on
the broad proposition, albeit not suggested, that under the presidential type of government which we
have adopted and considering the departmental organization established and continued in force by
paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative
organizations are adjuncts of the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive, and, except in cases where the Chief
Executive is required by the Constitution or the law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments, and the acts of the secretaries
of such departments, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.
(Runkle vs. United States [1887], 122 U. S., 543; 30 Law. ed., 1167; 7 Sup. Ct. Rep., 1141; see also
U. S. vs. Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones vs. U. S. [1890], 137 U. S., 202; 34
Law. ed., 691; 11 Sup. Ct., Rep., 80; Wolsey vs. Chapman [1880], 101 U. S., 755; 25 Law. ed., 915;
Wilcox vs. Jackson [1836], 13 Pet., 498; 10 Law. ed., 264.)

Fear is expressed by more than one member of this court that the acceptance of the principle of
qualified political agency in this and similar cases would result in the assumption of responsibility by
the President of the Philippines for acts of any member of his cabinet, however illegal, irregular or
improper may be these acts. The implications, it is said, are serious. Fear, however, is no valid
argument against the system once adopted, established and operated. Familiarity with the essential
background of the type of Government established under our Constitution, in the light of certain wellknown principles and practices that go with the system, should offer the necessary explanation. With
reference to the Executive Department of the government, there is one purpose which is crystalclear and is readily visible without the projection of judicial searchlight, and that is the establishment
of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the
Executive Department, begins with the enunciation of the principle that "The executive power shall
be vested in a President of the Philippines." This means that the President of the Philippines is the
Executive of the Government of the Philippines, and no other. The heads of the executive
departments occupy political positions and hold office in an advisory capacity, and, in the language
of Thomas Jefferson, "should be of the Presidents bosom confidence" (7 Writings, Ford ed., 498),
and in the language of Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the
direction of the President." Without minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of that of the President. Stated
otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United
States, "each head of a department is, and must be, the President's alter ego in the matters of that
department where the President is required by law to exercise authority." (Myers vs. United States,
47 Sup. Ct. Rep., 21 at 30; 272 U.S. 52 at 133; 71 Law. Ed., 160). x x x.
The doctrine of qualified political agency essentially postulates that the heads of the various
executive departments are the alter egos of the President, and, thus, the actions taken by such
heads in the performance of their official duties are deemed the acts of the President unless the
President himself should disapprove such acts. This doctrine is in recognition of the fact that in our
presidential form of government, all executive organizations are adjuncts of a single Chief Executive;
that the heads of the Executive Departments are assistants and agents of the Chief Executive; and
that the multiple executive functions of the President as the Chief Executive are performed through
the Executive Departments. The doctrine has been adopted here out of practical necessity,
considering that the President cannot be expected to personally perform the multifarious functions of
the executive office.
But the doctrine of qualified political agency could not be extended to the acts of the Board of
Directors of TIDCORP despite some of its members being themselves the appointees of the
President to the Cabinet. Under Section 10 of Presidential Decree No. 1080, as further amended by
Section 6 of Republic Act No. 8494,24 the five ex officio members were the Secretary of Finance, the
Secretary of Trade and Industry, the Governor of the Bangko Sentral ng Pilipinas, the DirectorGeneral of the National Economic and Development Authority, and the Chairman of the Philippine
Overseas Construction Board, while the four other members of the Board were the three from the
private sector (at least one of whom should come from the export community), who were elected by
the ex officio members of the Board for a term of not more than two consecutive years, and the
President of TIDCORP who was concurrently the Vice-Chairman of the Board. Such Cabinet
members sat on the Board of Directors of TIDCORP ex officio, or by reason of their office or function,
not because of their direct appointment to the Board by the President. Evidently, it was the law, not
the President, that sat them in the Board.

Under the circumstances, when the members of the Board of Directors effected the assailed 2002
reorganization, they were acting as the responsible members of the Board of Directors of TIDCORP
constituted pursuant to Presidential Decree No. 1080, as amended by Republic Act No. 8494, not as
the alter egos of the President. We cannot stretch the application of a doctrine that already
delegates an enormous amount of power. Also, it is settled that the delegation of power is not to be
lightly inferred.25
Nonetheless, we uphold the 2002 reorganization and declare it valid for being done in accordance
with the exclusive and final authority expressly granted under Republic Act No. 8494, further
amending Presidential Decree No. 1080, the law creating TIDCORP itself, to wit:
Section 7. The Board of Directors shall provide for an organizational structure and staffing pattern for
officers and employees of the Trade and Investment Development Corporation of the Philippines
(TIDCORP) and upon recommendation of its President, appoint and fix their remuneration,
emoluments and fringe benefits: Provided, That the Board shall have exclusive and final authority to
appoint, promote, transfer, assign and re-assign personnel of the TIDCORP, any provision of existing
law to the contrary notwithstanding.
In this connection, too, we reiterate that we cannot disturb but must respect the ruling of the CSC
that deals with specific cases coming within its area of technical knowledge and expertise, 26 absent a
clear showing of grave abuse of discretion on its part. That clear showing was not made herein.
Such deference proceeds from our recognition of the important role of the CSC as the central
personnel agency of the Government having the familiarity with and expertise on the matters relating
to the career service.
Worthy to stress, lastly, is that the reorganization was not arbitrary and whimsical. It had been
formulated following lengthy consultations and close coordination with the affected offices within
TIDCORP in order for them to come up with various functional statements relating to the new
organizational setup. In fact, the Board of Directors decided on the need to reorganize in 2002 to
achieve several worthy objectives, as follows:
(1) To make the organization more viable in terms of economy, efficiency, effectiveness and
make it more responsive to the needs of its clientles by eliminating or minimizing any
overlaps and duplication of powers and functions;
(2) To come up with an organizational structure which is geared towards the strengthening of
the Corporation's overall financial and business operations through resource allocation shift;
and
(3) To rationalize corporate operations to maximize resources and achieve optimum
sustainable corporate performance vis-a-vis revised corporate policies, objectives and
directions by focusing the Corporation's efforts and resources to its vital and core functions. 27
The result of the lengthy consultations and close coordination was the comprehensive reorganization
plan that included a new organizational structure, position classification and staffing pattern,
qualification standards, rules and regulations to implement the reorganization, separation incentive
packages and timetable of implementation. Undoubtedly, TIDCORP effected the reorganization
within legal bounds and in response to the perceived need to make the agency more attuned to the
changing times.

Having found the 2002 reorganization to be valid and made pursuant to Republic Act No. 8494, we
declare that there are no legal and practical bases for reinstating Demigillo to her former position as
Senior Vice President in the LCSD. To be sure, the reorganization plan abolished the LCSD, and put
in place a set-up completely different from the previous one, including a new staffing pattern in which
Demigillo would be heading the RCMSS, still as a Senior Vice President of TIDCORP. With that
abolition, reinstating her as Senior Vice President in the LCSD became legally and physically
impossible.
Demigillos contention that she was specifically appointed to the position of Senior Vice President in
the LCSD was bereft of factual basis. The records indicate that her permanent appointment
pertained only to the position of Senior Vice President.28 Her appointment did not indicate at all that
she was to hold that specific post in the LCSD. Hence, her re-assignment to the RCMSS was by no
means a diminution in rank and status considering that she maintained the same rank of Senior Vice
President with an accompanying increase in pay grade.
The assignment to the RCMSS did not also violate Demigillos security of tenure as protected by
Republic Act No. 6656. We have already upheld reassignments In the Civil Service resulting from
valid reorganizations.29 Nor could she claim that her reassignment was invalid because it caused the
reduction in her rank, status or salary. On the contrary, she was reappointed as Senior Vice
President, a position that was even upgraded like all the other similar positions to Pay Grade 16,
Step 4, Level II.30 In every sense, the position to which she was reappointed under the 2002
reorganization was comparable with, if not similar to her previous position.
That the RCMSS was a unit smaller than the LCSD did not necessarily result in or cause a demotion
for Demigillo. Her new position was but the consequence of the valid reorganization, the authority to
implement which was vested in the Board of Directors by Republic Act No. 8494. Indeed, we do not
consider to be a violation of the civil servants right to security of tenure the exercise by the agency
where she works of the essential prerogative to change the work assignment or to transfer the civil
servant to an assignment where she would be most useful and effective. More succinctly put, that
prerogative inheres with the employer,31 whether public or private.
G.R. No. 185571
As earlier stated, TIDCORPs petition for review in G.R. No. 185571 is meritorious.
Anent the first issue in G.R. No. 185571, we have already explained that Demigillo was not demoted
because she did not suffer any diminution in her rank, status and salary under the reorganization.
Her reassignment to the RCMSS, a smaller unit compared to the LCSD, maintained for her the same
rank of Senior Vice-President with a corresponding increase in pay grade. The reassignment
resulted from the valid reorganization.
With respect to the second issue, Demigillo was validly dropped from the rolls by TIDCORP as the
consequence of the application of the rules governing her employment. Section 2 (2.2), Rule XII of
the Revised Omnibus Rules on Appointments and Other Personnel Actions (Memorandum Circular
No. 40, Series of 1998) provides:
xxxx
2.2 Unsatisfactory or Poor Performance

a. An official or employee who is given two (2) consecutive unsatisfactory ratings may be
dropped from the rolls after due notice. Notice shall mean that the officer or employee
concerned is informed in writing of his unsatisfactory performance for a semester and is
sufficiently warned that a succeeding unsatisfactory performance shall warrant his separation
from the service. Such notice shall be given not later than 30 days from the end of the
semester and shall contain sufficient information which shall enable the employee to prepare
an explanation.
b. An official or employee, who for one evaluation period is rated poor in performance, may
be dropped from the rolls after due notice. Notice shall mean that the officer or employee is
informed in writing of the status of his performance not later than the 4th month of that rating
period with sufficient warning that failure to improve his performance within the remaining
period of the semester shall warrant his separation from the service. Such notice shall also
contain sufficient information which shall enable the employee to prepare an explanation.
Under Section (b), supra, an official or employee may be dropped from the rolls provided the
following requisites are present, namely: (1) the official or employee was rated poor in performance
for one evaluation period; (2) the official or employee was notified in writing of the status of her
performance not later than the 4th month of the rating period with sufficient warning that failure to
improve her performance within the remaining period of the semester shall warrant her separation
from the service; and (3) such notice contained adequate information that would enable her to
prepare an explanation.
All of the requisites were duly established herein.
As to the first requisite, there is no dispute that President Valdes gave Demigillo a poor performance
rating for the annual rating period from January 1, 2002 to December 31, 2002.
The second requisite speaks of a sixth-month or per semester rating period. Although Demigillos
poor rating was made on an annual basis, that was allowed by the implementing rules of Executive
Order No. 292.32 Regarding the need to give her the written notice of her performance status not
later than the 4th month of the rating period, or at the half of the semester, the requirement did not
apply here because her rating was made on an annual basis. By analogy, however, the written
notice for an annual rating period could be sent on the 6th month or in the middle of the year.
Nevertheless, this was not expressly provided for in the Civil Service rules. In any case, it is
emphasized that the purpose of the written notice being sent to the affected officer or employee not
later than the 4th month of the rating period has been to give her the sufficient time to improve her
performance and thereby avert her separation from the service. That purpose is the very essence of
due process.
1wphi1

In Demigillos case, therefore, what was crucial was whether she had been allowed to enhance her
performance within a sufficient time from her receipt of the written notice of the poor performance
rating up to her receipt of the written notice of her dropping from the rolls. The records show that she
was, indeed, given enough time for her to show improvement. She received on April 21, 2003 a letter
from President Valdes that indicated her poor performance rating for the period of January 1, 2002 to
December 31, 2002.33 The Board of Directors issued on August 15, 2003 the decision dropping her
from rolls.34 She received a copy of the decision on August 25, 2003. 35 Thereby, she was given
almost four months to improve her performance before she was finally dropped from the rolls.

The second requisite further mentions that the written notice must contain sufficient warning that
failure to improve her performance within the remaining period of the semester shall warrant
separation from the service. Although the letter informing Demigillo of her poor performance rating
did not expressly state such a warning to her, it stated her gross failures in the performance of her
duties.36 The Performance Evaluation Report Form corresponding to her, which was attached to the
memorandum given to her, reflected her poor performance.36She was notified in writing of the denial
of her appeal of the poor rating.37 It cannot be denied that the letter of poor rating, the Performance
Evaluation Repmi Form, and the denial of her appeal all signified to her that she could be removed
from the service unless she would improve her performance. Thereby, she was given ample warning
to improve, or else be separated from the service. In that regard, she was certainly not a witless
person who could have missed the significance of such events. She was not only a lawyer. 38 She
was also a mid-level ranking government official who had been in the government corporate sector
for almost 20 years.39 Her familiarity with the dire consequences of a failure to improve a poor rating
under Civil Service rules was justifiably assumed.
Anent the third requisite, the letter of President Valdes plainly stated the reasons for her poor rating.
Her Performance Evaluation Repmi Form, which was attached to the letter, enumerated several
criteria used in measuring her management skills and the corresponding rating per criterion. The
letter even suggested that in order for her to enhance her performance she should undergo
extensive training on business management, a comprehensive lecture program on Civil Service
rules and regulations, and a training on effective public relations. The letter indicated that the
contents of the Performance Evaluation Report had been discussed with her. Moreover, Demigillo
formally appealed the poor performance rating, except that TIDCORP denied her appeal. 40All these
circumstances show that she was given more than enough information about the bases for her poor
performance rating, enabling her to appeal properly.
WHEREFORE, we DENY the petition for review on certiorari in G.R. No. 168613; AFFIRM the
decision promulgated on June 27, 2005 by the Court of Appeals in its CA-G.R. No. 87285; GRANT
the petition for review on certiorari in G.R. No. 185571; SET ASIDE the decision promulgated on
November 28, 2008 by the Court of Appeals in its CA-G.R. No. 87295; and ORDER Atty. MA.
ROSARIO MANALANG-DEMIGILLO to pay the costs of suit.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 175368

April 11, 2013

LEAGUE OF PROVINCES OF THE PHILIPPINES, Petitioner,


vs.
DEPARTMENT OF ENVIRONMENT and NATURAL RESOURCES and HON. ANGELO T. REYES,
in his capacity as Secretary of DENR, Respondents.
DECISION

PERALTA, J.:
This is a petition for certiorari, prohibition and mandamus,1 praying that this Court order the following:
( 1) declare as unconstitutional Section 17(b)(3)(iii) of Republic Act (R.A.) No. 7160, otherwise
known as The Local Government Code of 1991 and Section 24 of Republic Act (R.A.) No. 7076,
otherwise known as the People's Small-Scale Mining Act of 1991; (2) prohibit and bar respondents
from exercising control over provinces; and (3) declare as illegal the respondent Secretary of the
Department of Energy and Natural Resources' (DENR) nullification, voiding and cancellation of the
Small-Scale Mining permits issued by the Provincial Governor of Bulacan.
The Facts are as follows:
On March 28, 1996, Golden Falcon Mineral Exploration Corporation (Golden Falcon) filed with the
DENR Mines and Geosciences Bureau Regional Office No. III (MGB R-III) an Application for
Financial and Technical Assistance Agreement (FTAA) covering an area of 61,136 hectares situated
in the Municipalities of San Miguel, San Ildefonso, Norzagaray and San Jose del Monte, Bulacan. 2
On April 29, 1998, the MGB R-III issued an Order denying Golden Falcon's Application for Financial
and Technical Assistance Agreement for failure to secure area clearances from the Forest
Management Sector and Lands Management Sector of the DENR Regional Office No. III. 3
On November 11, 1998, Golden Falcon filed an appeal with the DENR Mines and Geosciences
Bureau Central Office (MGB-Central Office), and sought reconsideration of the Order dated April 29,
1998.4
On February 10, 2004, while Golden Falcon's appeal was pending, Eduardo D. Mercado, Benedicto
S. Cruz, Gerardo R. Cruz and Liberato Sembrano filed with the Provincial Environment and Natural
Resources Office (PENRO) of Bulacan their respective Applications for Quarry Permit (AQP), which
covered the same area subject of Golden Falcon's Application for Financial and Technical Assistance
Agreement.5
On July 16, 2004, the MGB-Central Office issued an Order denying Golden Falcon's appeal and
affirming the MGB R-III's Order dated April 29, 1998.
On September 13, 2004, Atlantic Mines and Trading Corporation (AMTC) filed with the PENRO of
Bulacan an Application for Exploration Permit (AEP) covering 5,281 hectares of the area covered by
Golden Falcon's Application for Financial and Technical Assistance Agreement.6
On October 19, 2004, DENR-MGB Director Horacio C. Ramos, in response to MGB R-III Director
Arnulfo V. Cabantog's memorandum query dated September 8, 2004, categorically stated that the
MGB-Central Office's Order dated July 16, 2004 became final on August 11, 2004, fifteen (15) days
after Golden Falcon received the said Order, per the Certification dated October 8, 2004 issued by
the Postmaster II of the Philippine Postal Corporation of Cainta, Rizal. 7
Through letters dated May 5 and May 10, 2005, AMTC notified the PENRO of Bulacan and the MGB
R-III Director, respectively, that the subject Applications for Quarry Permit fell within its (AMTC's)
existing valid and prior Application for Exploration Permit, and the the former area of Golden Falcon
was open to mining location only on August 11, 2004 per the Memorandum dated October 19, 2004
of the MGB Director, Central Office.8

On June 24, 2005, Ricardo Medina, Jr., PENRO of Bulacan, indorsed AMTC's letter to the Provincial
Legal Officer, Atty. Eugenio F. Resurreccion, for his legal opinion on which date of denial of Golden
Falcon's application/appeal April 29, 1998 or July 16, 2004 is to be considered in the deliberation
of the Provincial Mining Regulatory Board (PMRB) for the purpose of determining when the land
subject of the Applications for Quarry Permit could be considered open for application.
On June 28, 2005, Provincial Legal Officer Eugenio Resurreccion issued a legal opinion stating that
the Order dated July 16, 2004 of the MGB-Central Office was a mere reaffirmation of the Order
dated April 29, 1998 of the MGB R-III; hence, the Order dated April 29, 1998 should be the reckoning
period of the denial of the application of Golden Falcon.
On July 22, 2005, AMTC filed with the PMRB of Bulacan a formal protest against the aforesaid
Applications for Quarry Permit on the ground that the subject area was already covered by its
Application for Exploration Permit.9
On August 8, 2005, MGB R-III Director Cabantog, who was the concurrent Chairman of the PMRB,
endorsed to the Provincial Governor of Bulacan, Governor Josefina M. dela Cruz, the aforesaid
Applications for Quarry Permit that had apparently been converted to Applications for Small-Scale
Mining Permit of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez
(formerly Liberato Sembrano).10
On August 9, 2005, the PENRO of Bulacan issued four memoranda recommending to Governor
Dela Cruz the approval of the aforesaid Applications for Small-Scale Mining Permit. 11
On August 10, 2005, Governor Dela Cruz issued the corresponding Small-Scale Mining Permits in
favor of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez. 12
Subsequently, AMTC appealed to respondent DENR Secretary the grant of the aforesaid SmallScale Mining Permits, arguing that: (1) The PMRB of Bulacan erred in giving due course to the
Applications for Small-Scale Mining Permit without first resolving its formal protest; (2) The areas
covered by the Small-Scale Mining Permits fall within the area covered by AMTC's valid prior
Application for Exploration Permit; (3) The Applications for Quarry Permit were illegally converted to
Applications for Small-Scale Mining Permit; (4) DENR-MGB Director Horacio C. Ramos' ruling that
the subject areas became open for mining location only on August 11, 2004 was controlling; (5) The
Small-Scale Mining Permits were null and void because they covered areas that were never
declared People's Small-Scale Mining Program sites as mandated by Section 4 of the People's
Small-Scale Mining Act of 1991; and (6) Iron ore is not considered as one of the quarry resources,
as defined by Section 43 of the Philippine Mining Act of 1995, which could be subjects of an
Application for Quarry Permit.13
On August 8, 2006, respondent DENR Secretary rendered a Decision 14 in favor of AMTC. The DENR
Secretary agreed with MGB Director Horacio C. Ramos that the area was open to mining location
only on August 11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a
copy of the MGB-Central Office's Order dated July 16, 2004, which Order denied Golden Falcon's
appeal. According to the DENR Secretary, the filing by Golden Falcon of the letter-appeal suspended
the finality of the Order of denial issued on April 29, 1998 by the Regional Director until the resolution
of the appeal on July 16, 2004 by the MGB-Central Office. He stated that the Applications for Quarry
Permit were filed on February 10, 2004 when the area was still closed to mining location; hence, the
Small-Scale Mining Permits granted by the PMRB and the Governor were null and void. On the

other hand, the DENR Secretary declared that AMTC filed its Application for Exploration Permit
when the area was already open to other mining applicants; thus, AMTCs Application for Exploration
Permit was valid. Moreover, the DENR Secretary held that the questioned Small-Scale Mining
Permits were issued in violation of Section 4 of R.A. No. 7076 and beyond the authority of the
Provincial Governor pursuant to Section 43 of R.A. No. 7942, because the area was never
proclaimed to be under the People's Small-Scale Mining Program. Further, the DENR Secretary
stated that iron ore mineral is not considered among the quarry resources.
The dispositive portion of the DENR Secretarys Decision reads:
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading
Corp. is declared valid and may now be given due course. The Small-Scale Mining Permits, SSMPB-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto
S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the
said permits are hereby CANCELLED.15
Hence, petitioner League of Provinces filed this petition.
Petitioner is a duly organized league of local governments incorporated under R.A. No. 7160.
Petitioner declares that it is composed of 81 provincial governments, including the Province of
Bulacan. It states that this is not an action of one province alone, but the collective action of all
provinces through the League, as a favorable ruling will not only benefit one province, but all
provinces and all local governments.
Petitioner raises these issues:
I
WHETHER OR NOT SECTION 17(B)(3)(III) OF THE, 1991 LOCAL GOVERNMENT CODE AND
SECTION 24 OF THE PEOPLE'S SMALL-SCALE MINING ACT OF 1991 ARE
UNCONSTITUTIONAL FOR PROVIDING FOR EXECUTIVE CONTROL AND INFRINGING UPON
THE LOCAL AUTONOMY OF PROVINCES.
II
WHETHER OR NOT THE ACT OF RESPONDENT [DENR] IN NULLIFYING, VOIDING AND
CANCELLING THE SMALL-SCALE MINING PERMITS AMOUNTS TO EXECUTIVE CONTROL,
NOT MERELY SUPERVISION AND USURPS THE DEVOLVED POWERS OF ALL PROVINCES.16
To start, the Court finds that petitioner has legal standing to file this petition because it is tasked
under Section 504 of the Local Government Code of 1991 to promote local autonomy at the
provincial level;17 adopt measures for the promotion of the welfare of all provinces and its officials
and employees;18 and exercise such other powers and perform such other duties and functions as
the league may prescribe for the welfare of the provinces.19
Before this Court determines the validity of an act of a co-equal and coordinate branch of the
Government, it bears emphasis that ingrained in our jurisprudence is the time-honored principle that
a statute is presumed to be valid.20 This presumption is rooted in the doctrine of separation of powers

which enjoins upon the three coordinate departments of the Government a becoming courtesy for
each other's acts.21 This Court, however, may declare a law, or portions thereof, unconstitutional
where a petitioner has shown a clear and unequivocal breach of the Constitution, 22 leaving no doubt
or hesitation in the mind of the Court.23
In this case, petitioner admits that respondent DENR Secretary had the authority to nullify the SmallScale Mining Permits issued by the Provincial Governor of Bulacan, as the DENR Secretary has
control over the PMRB, and the implementation of the Small-Scale Mining Program is subject to
control by respondent DENR.
Control of the DENR/DENR Secretary over small-scale mining in the provinces is granted by three
statutes: (1) R.A. No. 7061 or The Local Government Code of 1991; (2) R.A. No. 7076 or the
People's Small Scale Mining Act of 1991; and (3) R.A. No. 7942, otherwise known as the Philippine
Mining Act of 1995.24 The pertinent provisions of law sought to be declared as unconstitutional by
petitioner are as follows:
R.A. No. 7061 (The Local Government Code of 1991)
SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant
and shall continue exercising the powers and discharging the duties and functions currently vested
upon them. They shall also discharge the functions and responsibilities of national agencies and
offices devolved to them pursuant to this Code. Local government units shall likewise exercise such
other powers and discharge such other functions and responsibilities as are necessary, appropriate,
or incidental to efficient and effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the following:
xxxx
(3) For a Province:c
xxxx
(iii) Pursuant to national policies and subject to supervision, control and review of the DENR,
enforcement of forestry laws limited to community-based forestry projects, pollution control law,
small-scale mining law, and other laws on the protection of the environment; and mini-hydro electric
projects for local purposes; x x x25
R.A. No. 7076 (People's Small-Scale Mining Act of 1991)
Sec. 24. Provincial/City Mining Regulatory Board. - There is hereby created under the direct
supervision and control of the Secretary a provincial/city mining regulatory board, herein called the
Board, which shall be the implementing agency of the Department, and shall exercise the following
powers and functions, subject to review by the Secretary:
(a) Declare and segregate existing gold-rush areas for small-scale mining;
(b) Reserve future gold and other mining areas for small-scale mining;

(c) Award contracts to small-scale miners;


(d) Formulate and implement rules and regulations related to small-scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims within a peoples small-scale
mining area, an area that is declared a small-mining; and
(f) Perform such other functions as may be necessary to achieve the goals and objectives of
this Act.26
Petitioner contends that the aforecited laws and DENR Administrative Order No. 9640 (the
Implementing Rules and Regulations of the Philippine Mining Act of 1995) did not explicitly confer
upon respondents DENR and the DENR Secretary the power to reverse, abrogate, nullify, void, or
cancel the permits issued by the Provincial Governor or small-scale mining contracts entered into by
the PMRB. The statutes are also silent as to the power of respondent DENR Secretary to substitute
his own judgment over that of the Provincial Governor and the PMRB.
Moreover, petitioner contends that Section 17 (b)(3)(iii) of the Local Government Code of 1991 and
Section 24 of R.A. No. 7076, which confer upon respondents DENR and the DENR Secretary the
power of control are unconstitutional, as the Constitution states that the President (and Executive
Departments and her alter-egos) has the power of supervision only, not control, over acts of the local
government units, and grants the local government units autonomy, thus:
The 1987 Constitution:
Article X, Section 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays, shall ensure that the acts of their component
units are within the scope of their prescribed powers and functions.27
Petitioner contends that the policy in the above-cited constitutional provision is mirrored in the Local
Government Code, which states:
SEC. 25. National Supervision over Local Government Units. - (a) Consistent with the basic policy
on local autonomy, the President shall exercise general supervision over local government units to
ensure that their acts are within the scope of their prescribed powers and functions.
The President shall exercise supervisory authority directly over provinces, highly urbanized cities,
and independent component cities; through the province with respect to component cities and
municipalities; and through the city and municipality with respect to barangays. 28
Petitioner contends that the foregoing provisions of the Constitution and the Local Government Code
of 1991 show that the relationship between the President and the Provinces or respondent DENR,
as the alter ego of the President, and the Province of Bulacan is one of executive supervision, not
one of executive control. The term "control" has been defined as the power of an officer to alter or
modify or set aside what a subordinate officer had done in the performance of his/her duties and to
substitute the judgment of the former for the latter, while the term "supervision" is the power of a
superior officer to see to it that lower officers perform their function in accordance with law.29

Petitioner argues that respondent DENR Secretary went beyond mere executive supervision and
exercised control when he nullified the small-scale mining permits granted by the Provincial
Governor of Bulacan, as the former substituted the judgment of the latter.
Petitioner asserts that what is involved here is a devolved power.
Under the Local Government Code of 1991, the power to regulate small-scale mining has been
devolved to all provinces. In the exercise of devolved powers, departmental approval is not
necessary.30
Petitioner contends that if the provisions in Section 24 of R.A. No. 7076 and Section 17 (b)(3)(iii) of
the Local Government Code of 1991 granting the power of control to the DENR/DENR Secretary are
not nullified, nothing would stop the DENR Secretary from nullifying, voiding and canceling the smallscale mining permits that have been issued by a Provincial Governor.
Petitioner submits that the statutory grant of power of control to respondents is unconstitutional, as
the Constitution only allows supervision over local governments and proscribes control by the
executive departments.
In its Comment, respondents, represented by the Office of the Solicitor General, stated that contrary
to the assertion of petitioner, the power to implement the small-scale mining law is expressly limited
in Section 17 (b)(3)(iii) of the Local Government Code, which provides that it must be carried out
"pursuant to national policies and subject to supervision, control and review of the DENR." Moreover,
the fact that the power to implement the small-scale mining law has not been fully devolved to
provinces is further amplified by Section 4 of the People's Small-Scale Mining Act of 1991, which
provides, among others, that the People's Small-Scale Mining Program shall be implemented by the
DENR Secretary.
The petition lacks merit.
Paragraph 1 of Section 2, Article XII (National Economy and Patrimony) of the
Constitution31 provides that "the exploration, development and utilization of natural resources shall be
under the full control and supervision of the State."
Moreover, paragraph 3 of Section 2, Article XII of the Constitution provides that "the Congress may,
by law, allow small-scale utilization of natural resources by Filipino citizens x x x."
Pursuant to Section 2, Article XII of the Constitution, R.A. No. 7076 or the People's Small-Scale
Mining Act of 1991, was enacted, establishing under Section 4 thereof a People's Small-Scale
Mining Program to be implemented by the DENR Secretary in coordination with other concerned
government agencies.
The People's Small-Scale Mining Act of 1991 defines "small-scale mining" as "refer[ring] to mining
activities, which rely heavily on manual labor using simple implement and methods and do not use
explosives or heavy mining equipment."32
It should be pointed out that the Administrative Code of 198733 provides that the DENR is, subject to
law and higher authority, in charge of carrying out the State's constitutional mandate, under Section

2, Article XII of the Constitution, to control and supervise the exploration, development, utilization
and conservation of the country's natural resources. Hence, the enforcement of small-scale mining
law in the provinces is made subject to the supervision, control and review of the DENR under the
Local Government Code of 1991, while the Peoples Small-Scale Mining Act of 1991 provides that
the Peoples Small-Scale Mining Program is to be implemented by the DENR Secretary in
coordination with other concerned local government agencies.
Indeed, Section 4, Article X (Local Government) of the Constitution states that "[t]he President of the
Philippines shall exercise general supervision over local governments," and Section 25 of the Local
Government Code reiterates the same. General supervision by the President means no more than
seeing to it that laws are faithfully executed or that subordinate officers act within the law.34
The Court has clarified that the constitutional guarantee of local autonomy in the Constitution Art. X,
Sec. 2 refers to the administrative autonomy of local government units or, cast in more technical
language, the decentralization of government authority.35 It does not make local governments
sovereign within the State.36 Administrative autonomy may involve devolution of powers, but subject
to limitations like following national policies or standards,37 and those provided by the Local
Government Code, as the structuring of local governments and the allocation of powers,
responsibilities, and resources among the different local government units and local officials have
been placed by the Constitution in the hands of Congress 38 under Section 3, Article X of the
Constitution.
Section 3, Article X of the Constitution mandated Congress to "enact a local government code which
shall provide for a more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources, and provide
for the qualifications, election, appointment and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the organization and operation of the local
units."
In connection with the enforcement of the small-scale mining law in the province, Section 17 of the
Local Government Code provides:
SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant
and shall continue exercising the powers and discharging the duties and functions currently vested
upon them. They shall also discharge the functions and responsibilities of national agencies and
offices devolved to them pursuant to this Code. Local government units shall likewise exercise such
other powers and discharge such other functions and responsibilities as are necessary, appropriate,
or incidental to efficient and effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the following:
xxxx
(3) For a Province:c
xxxx

(iii) Pursuant to national policies and subject to supervision, control and review of the DENR,
enforcement of forestry laws limited to community-based forestry projects, pollution control law,
small-scale mining law, and other laws on the protection of the environment; and mini-hydro electric
projects for local purposes;39
Clearly, the Local Government Code did not fully devolve the enforcement of the small-scale mining
law to the provincial government, as its enforcement is subject to the supervision, control and review
of the DENR, which is in charge, subject to law and higher authority, of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization of the
country's natural resources.40
Section 17 (b)(3)(iii) of the Local Government Code of 1991 is in harmony with R.A. No. 7076 or the
People's Small-Scale Mining Act of 1991,41 which established a People's Small-Scale Mining
Program to be implemented by the Secretary of the DENR, thus:
Sec. 2. Declaration of Policy. It is hereby declared of the State to promote, develop, protect and
rationalize viable small-scale mining activities in order to generate more employment opportunities
and provide an equitable sharing of the nation's wealth and natural resources, giving due regard to
existing rights as herein provided.
xxxx
Sec. 4. People's Small-Scale Mining Program. - For the purpose of carrying out the declared policy
provided in Section 2 hereof, there is hereby established a People's Small-Scale Mining Program to
be implemented by the Secretary of the Department of Environment and Natural Resources,
hereinafter called the Department, in coordination with other concerned government agencies,
designed to achieve an orderly, systematic and rational scheme for the small-scale development and
utilization of mineral resources in certain mineral areas in order to address the social, economic,
technical, and environmental problems connected with small-scale mining activities.
xxxx
Sec. 24. Provincial/City Mining Regulatory Board. There is hereby created under the direct
supervision and control of the Secretary a provincial/city mining regulatory board, herein called the
Board, which shall be the implementing agency of the Department, and shall exercise the following
powers and functions, subject to review by the Secretary:
(a) Declare and segregate existing gold-rush areas for small-scale mining;
(b) Reserve future gold and other mining areas for small-scale mining;
(c) Award contracts to small-scale miners;
(d) Formulate and implement rules and regulations related to small-scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims within a peoples small-scale
mining area, an area that is declared a small-mining; and

(f) Perform such other functions as may be necessary to achieve the goals and objectives of
this Act.42
DENR Administrative Order No. 34, series of 1992, containing the Rules and Regulations to
implement R.A. No. 7076, provides:
SEC. 21. Administrative Supervision over the People's Small-Scale Mining Program. The following
DENR officials shall exercise the following supervisory functions in the implementation of the
Program:
21.1 DENR Secretrary direct supervision and control over the program and activities of the
small-scale miners within the people's small-scale mining area;
21.2 Director the Director shall:
a. Recommend the depth or length of the tunnel or adit taking into account the: (1)
size of membership and capitalization of the cooperative; (2) size of mineralized
areas; (3) quantity of mineral deposits; (4) safety of miners; and (5) environmental
impact and other considerations;
b. Determine the right of small-scale miners to existing facilities in consultation with
the operator, claimowner, landowner or lessor of an affected area upon declaration of
a small-scale mining area;
c. Recommend to the Secretary the withdrawal of the status of the people's smallscale mining area when it can no longer be feasibly operated on a small-scale basis;
and
d. See to it that the small-scale mining contractors abide by small-scale mines safety
rules and regulations.
xxxx
SEC. 22. Provincial/City Mining Regulatory Board. The Provincial/City Mining Regulatory Board
created under R.A. 7076 shall exercise the following powers and functions, subject to review by the
Secretary:
22.1 Declares and segregates existing gold rush area for small-scale mining;
22.2 Reserves for the future, mineralized areas/mineral lands for people's small-scale
mining;
22.3 Awards contracts to small-scale miners cooperative;
22.4 Formulates and implements rules and regulations related to R.A. 7076;
22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days
upon filing of protests or complaints; Provided, That any aggrieved party may appeal within

five (5) days from the Board's decision to the Secretary for final resolution otherwise the
same is considered final and executory; and
22.6 Performs such other functions as may be necessary to achieve the goals and objectives
of R.A. 7076.
SEC. 6. Declaration of People's Small-Scale Mining Areas. The Board created under R.A. 7076
shall have the authority to declare and set aside People's Small-Scale Mining Areas in sites onshore
suitable for small-scale mining operations subject to review by the DENR Secretary thru the
Director.43
DENR Administrative Order No. 23, otherwise known as the Implementing Rules and Regulations of
R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995, adopted on August 15, 1995,
provides under Section 12344 thereof that small-scale mining applications should be filed with the
PMRB45 and the corresponding permits shall be issued by the Provincial Governor, except smallscale mining applications within the mineral reservations.
Thereafter, DENR Administrative Order No. 96-40, otherwise known as the Revised Implementing
Rules and Regulations of R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995,
adopted on December 19, 1996, provides that applications for Small-Scale Mining Permits shall be
filed with the Provincial Governor/City Mayor through the concerned Provincial/City Mining
Regulatory Board for areas outside the Mineral Reservations and with the Director though the
Bureau for areas within the Mineral Reservations.46 Moreover, it provides that Local Government
Units shall, in coordination with the Bureau/ Regional Offices and subject to valid and existing mining
rights, "approve applications for small-scale mining, sand and gravel, quarry x x x and gravel permits
not exceeding five (5) hectares."47
Petitioner contends that the Local Government Code of 1991, R.A. No. 7076, DENR Administrative
Orders Nos. 95-23 and 96-40 granted the DENR Secretary the broad statutory power of control, but
did not confer upon the respondents DENR and DENR Secretary the power to reverse, abrogate,
nullify, void, cancel the permits issued by the Provincial Governor or small-scale mining contracts
entered into by the Board.
The contention does not persuade.
The settlement of disputes over conflicting claims in small-scale mining is provided for in Section 24
of R.A. No. 7076, thus:
Sec. 24. Provincial/City Mining Regulatory Board. There is hereby created under the direct
supervision and control of the Secretary a provincial/city mining regulatory board, herein called the
Board, which shall be the implementing agency of the Department, and shall exercise the following
powers and functions, subject to review by the Secretary:
xxxx
(e) Settle disputes, conflicts or litigations over conflicting claims within a people's small-scale mining
area, an area that is declared a small mining area; x x x

Section 24, paragraph (e) of R.A. No. 7076 cited above is reflected in Section 22, paragraph 22.5 of
the Implementing Rules and Regulations of R.A. No. 7076, to wit:
SEC. 22. Provincial/City Mining Regulatory Board. The Provincial/City Mining Regulatory Board
created under R.A. No. 7076 shall exercise the following powers and functions, subject to review by
the Secretary:
xxxx
22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days upon filing
of protests or complaints; Provided, That any aggrieved party may appeal within five (5) days from
the Board's decision to the Secretary for final resolution otherwise the same is considered final and
executory; x x x
In this case, in accordance with Section 22, paragraph 22.5 of the Implementing Rules and
Regulations of R.A. No. 7076, the AMTC filed on July 22, 2005 with the PMRB of Bulacan a formal
protest against the Applications for Quarry Permits of Eduardo Mercado, Benedicto Cruz, Liberato
Sembrano (replaced by Lucila Valdez) and Gerardo Cruz on the ground that the subject area was
already covered by its Application for Exploration Permit.48However, on August 8, 2005, the PMRB
issued Resolution Nos. 05-8, 05-9, 05-10 and 05-11, resolving to submit to the Provincial Governor
of Bulacan the Applications for Small-Scale Mining Permits of Eduardo Mercado, Benedicto Cruz,
Lucila Valdez and Gerardo Cruz for the granting/issuance of the said permits. 49 On August 10, 2005,
the Provincial Governor of Bulacan issued the Small-Scale Mining Permits to Eduardo Mercado,
Benedicto Cruz, Lucila Valdez and Gerardo Cruz based on the legal opinion of the Provincial Legal
Officer and the Resolutions of the PMRB of Bulacan.
Hence, AMTC filed an appeal with respondent DENR Secretary, appealing from Letter-Resolution
No. 05-1317 and Resolution Nos. 05-08, 05-09, 05-10 and 05-11, all dated August 8, 2005, of the
PMRB of Bulacan, which resolutions gave due course and granted, on August 10, 2005, Small-Scale
Mining Permits to Eduardo D. Mercado, Benedicto S. Cruz, Lucila Valdez and Gerardo Cruz
involving parcels of mineral land situated at Camachin, Doa Remedios Trinidad, Bulacan.
The PMRB of Bulacan filed its Answer, stating that it is an administrative body, created under R.A.
No. 7076, which cannot be equated with the court wherein a full-blown hearing could be conducted,
but it is enough that the parties were given the opportunity to present evidence. It asserted that the
questioned resolutions it issued were in accordance with the mining laws and that the Small-Scale
Mining Permits granted were registered ahead of AMTC's Application for Exploration Permit. Further,
the Board stated that the Governor of Bulacan had the power to approve the Small-Scale Mining
Permits under R.A. No. 7160.
The DENR Secretary found the appeal meritorious, and resolved these pivotal issues: (1) when is
the subject mining area open for mining location by other applicants; and (2) who among the
applicants have valid applications. The pertinent portion of the decision of the DENR Secretary
reads:
1wphi1

We agree with the ruling of the MGB Director that the area is open only to mining location on August
11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a copy of the
subject Order of July 16, 2004. The filing by Golden Falcon of the letter-appeal suspended the
1wphi1

finality of the Order of Denial issued on April 29, 1998 by the Regional Director until the Resolution
thereof on July 16, 2004.
Although the subject AQPs/SSMPs were processed in accordance with the procedures of the
PMRB, however, the AQPs were filed on February 10, 2004 when the area is still closed to mining
location. Consequently, the SSMPs granted by the PMRB and the Governor are null and void
making thereby AEP No. III-02-04 of the AMTC valid, it having been filed when the area is already
open to other mining applicants.
Records also show that the AQPs were converted into SSMPs. These are two (2) different
applications. The questioned SSMPs were issued in violation of Section 4 of RA 7076 and beyond
the authority of the Provincial Governor pursuant to Section 43 of RA 7942 because the area was
never proclaimed as "People's Small-Scale Mining Program." Moreover, iron ore mineral is not
considered among the quarry resources.
xxxx
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading
Corp. is declared valid and may now be given due course. The Small-Scale Mining Permits, SSMPB-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto
S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the
said permits are hereby CANCELLED.50
The Court finds that the decision of the DENR Secretary was rendered in accordance with the power
of review granted to the DENR Secretary in the resolution of disputes, which is provided for in
Section 24 of R.A. No. 707651 and Section 22 of its Implementing Rules and Regulations. 52 It is
noted that although AMTC filed a protest with the PMRB regarding its superior and prior Application
for Exploration Permit over the Applications for Quarry Permit, which were converted to Small-Scale
Mining Permits, the PMRB did not resolve the same, but issued Resolution Nos. 05-08 to 05-11 on
August 8, 2005, resolving to submit to the Provincial Governor of Bulacan the Applications for SmallScale Mining Permits of Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz for the
granting of the said permits. After the Provincial Governor of Bulacan issued the Small-Scale Mining
Permits on August 10, 2005, AMTC appealed the Resolutions of the PMRB giving due course to the
granting of the Small-Scale Mining Permits by the Provincial Governor.
Hence, the decision of the DENR Secretary, declaring that the Application for Exploration Permit of
AMTC was valid and may be given due course, and canceling the Small-Scale Mining Permits
issued by the Provincial Governor, emanated from the power of review granted to the DENR
Secretary under R.A. No. 7076 and its Implementing Rules and Regulations. The DENR Secretary's
power to review and, therefore, decide, in this case, the issue on the validity of the issuance of the
Small-Scale Mining Permits by the Provincial Governor as recommended by the PMRB, is a quasijudicial function, which involves the determination of what the law is, and what the legal rights of the
contending parties are, with respect to the matter in controversy and, on the basis thereof and the
facts obtaining, the adjudication of their respective rights.53 The DENR Secretary exercises quasijudicial function under R.A. No. 7076 and its Implementing Rules and Regulations to the extent
necessary in settling disputes, conflicts or litigations over conflicting claims. This quasi-judicial
function of the DENR Secretary can neither be equated with "substitution of judgment" of the
Provincial Governor in issuing Small-Scale Mining Permits nor "control" over the said act of the

Provincial Governor as it is a determination of the rights of AMTC over conflicting claims based on
the law.
In determining whether Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24
of R.A. No. 7076 are unconstitutional, the Court has been guided by Beltran v. The Secretary of
Health, 54 which held:
The fundamental criterion is that all reasonable doubts should be resolved in favor of the
constitutionality of a statute. Every law has in its favor the presumption of constitutionality. For a law
to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The
ground for nullity must be clear and beyond reasonable doubt. Those who petition this Court to
declare a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise,
the petition must fail. 55
In this case, the Court finds that the grounds raised by petitioner to challenge the constitutionality of
Section 17 (b )(3)(iii) of the Local Government Code of 1991 and Section 24 'of R.A. No.7076 failed
to overcome the constitutionality of the said provisions of law.
WHEREFORE, the petition is DISMISSED for lack of merit.
No costs.
SO ORDERED.

COMMANDER-IN-CHIEF AND MILITARY


POWERS

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. L-33964 December 11, 1971


IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG
RODOLFO DEL ROSARIO, and BAYANI ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.
G.R. No. L-33965 December 11, 1971
ROGELIO V. ARIENDA, petitioner,
vs.
SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL. CONSTABULARY, respondents.
G.R. No. L-33973 December 11, 1971
LUZVIMINDA DAVID, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, COL. N. C.
CAMELLO, in his capacity as Chief of Staff, Philippine Constabulary and HON. JUAN PONCE
ENRILE in his capacity as Secretary, Department of National defense, respondents.
G.R. No. L-33982 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E. PRUDENTE
FELICIDAD G. PRUDENTE, petitioners,
vs.
GENERAL MANUEL YAN, GEN. EDU GARCIA, respondents.
G.R. No. L-34004 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF GERARDO
TOMAS, ALSO KNOWN AS "GERRY TOMAS" AND FOR RETURN OF DOCUMENTS
ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity as Chairman, Committee on Legal
Assistance, Philippine Bar Association,petitioner,
vs.

BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE CONSTABULARY, respondent.


G.R. No. L-34013 December 11, 1971
REYNALDO RIMANDO, petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine Constabulary, respondent.
G.R. No. L-34039 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF SGT.
FILOMENO M. DE CASTRO AND HIS WIFE, MRS. BARCELISA C. DE CASTRO. CARLOS C.
RABAGO, in his capacity as President of the Conference Delegates Association of the
Philippines (CONDA),petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.
G.R. No. L-34265 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN ORETA, JR.
ANTOLIN ORETA, JR., petitioner,
vs.
GEN. EDUARDO GARCIA and COL. PROSPERO OLIVAS, respondents.
G.R. No. L-34339 December 11, 1971
GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, et
al., respondents.
Ignacio P. Lacsina for petitioners Teodosio Lansang, et al.
Ramon A. Gonzales for petitioner Rogelio V. Arienda.
E. Voltaire Garcia II for petitioner Luzvimindo David.
Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E. Taada, Fortunato de Leon, R. G.
Suntay and Juan T. David for petitioner Felicidad G. Prudente.
Ruben L. Roxas for petitioner Reynaldo Rimando.

Nuez, Acob, Del Rosario and Ramos for petitioner Carlos Rabago, etc.
E. Voltaire Garcia II and M. P. Vivo for petitioner Gary Olivar, etc., et al.
Jose W. Diokno and Juanito R. Remulla for petitioner Antolin Oreta, Jr.
Domingo E. de Lara for and in his own behalf.
Office of the Solicitor General Felix Q. Antonio and Assistant Solicitor General Bernardo P. Pardo for
respondents.

CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines was
holding a public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the
general elections scheduled for November 8, 1971, two (2) hand grenades were thrown, one after
the other, at the platform where said candidates and other persons were. As a consequence, eight
(8) persons were killed and many more injured, including practically all of the aforementioned
candidates, some of whom sustained extensive, as well as serious, injuries which could have been
fatal had it not been for the timely medical assistance given to them.
On August 23, soon after noontime, the President of the Philippines announced the issuance of
Proclamation No. 889, dated August 21, 1971, reading as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely established
that lawless elements in the country, which are moved by common or similar
ideological conviction, design and goal and enjoying the active moral and material
support of a foreign power and being guided and directed by a well trained,
determined and ruthless group of men and taking advantage of our constitutional
liberties to promote and attain their ends, have entered into a conspiracy and have in
fact joined and banded their forces together for the avowed purpose of actually
staging, undertaking and waging an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly constituted
government, and supplant our existing political social, economic and legal order with
an entirely new one whose form of government, whose system of laws, whose
conception of God and religion, whose notion of individual rights and family relations,
and whose political, social and economic precepts are based on the Marxist-LeninistMaoist teachings and beliefs;
WHEREAS, these lawless elements, acting in concert through front organizations
that are seemingly innocent and harmless, have continuously and systematically
strengthened and broadened their memberships through sustained and careful
recruiting and enlistment of new adherents from among our peasantry, laborers,
professionals, intellectuals, students, and mass media personnel, and through such
sustained and careful recruitment and enlistment have succeeded in infiltrating
almost every segment of our society in their ceaseless determination to erode and
weaken the political, social, economic and moral foundations of our existing
government and to influence many peasant, labor, professional, intellectual, student
and mass media organizations to commit acts of violence and depredations against

our duly constituted authorities, against the members of our law enforcement
agencies, and worst of all, against the peaceful members of our society;
WHEREAS, these lawless elements have created a state of lawlessness and
disorder affecting public safety and the security of the State, the latest manifestation
of which has been the dastardly attack on the Liberal Party rally in Manila on August
21, 1971, which has resulted in the death and serious injury of scores of persons;
WHEREAS, public safety requires that immediate and effective action be taken in
order to maintain peace and order, secure the safety of the people and preserve the
authority of the State;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the privilege of the writ of habeas corpus, for the
persons presently detained, as well as others who may be hereafter similarly
detained for the crimes of insurrection or rebellion, and all other crimes and offenses
committed by them in furtherance or on the occasion thereof, or incident thereto, or
in connection therewith.
Presently, petitions for writ of habeas corpus were filed, in the above-entitled cases, by the following
persons, who, having been arrested without a warrant therefor and then detained, upon the authority
of said proclamation, assail its validity, as well as that of their detention, namely:
1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the petitioners in Case
No. L-33964 filed on August 24, 1971 who, on August 22, 1971, between 8 a.m. and 6 p.m.,
were "invited" by agents of the Philippine Constabulary which is under the command of
respondent Brig. Gen. Eduardo M. Garcia to go and did go to the headquarters of the Philippine
Constabulary, at Camp Crame, Quezon City, for interrogation, and thereafter, detained;
2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 filed, also, on August 24, 1971
who was picked up in his residence, at No. 55 Road, 3, Urduja Village, Quezon City, by members of
the Metrocom and then detained;
3. Soon after the filing of the petition in Case No. L-33965 or on August 28, 1971 the same was
amended to include VICENTE ILAO and JUAN CARANDANG, as petitioners therein, although, apart
from stating that these additional petitioners are temporarily residing with the original petitioner,
Rogelio V. Arienda, the amended petition alleged nothing whatsoever as regards the circumstances
under which said Vicente Ilao and Juan Carandang are said to be illegally deprived of their liberty;
4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 filed on August 25, 1971 who was
similarly arrested in his residence, at No. 131-B Kamias Road, Quezon City, and detained by the
Constabulary;
5. Felicidad G. Prudente, who filed the petition in Case No. L-33982 on August 27, 1971 upon
the ground that her father, Dr. NEMESIO E. PRUDENTE, had, on August 22, 1971, at about 8 p.m.,
been apprehended by Constabulary agents in his house, at St. Ignatius Village, Quezon City, and
then detained at the Camp Crame stockade, Quezon City;
6. ANGELO DE LOS REYES, who was allowed on August 30, 1971 to intervene as one of the
petitioners in Cases Nos. L-33964, L-33965 and L-33973, he having been arrested by members of

the Constabulary on August 22, 1971, between 6:30 and 7:30 p.m., in his residence, at 86 Don
Manuel Street, Sta. Mesa Heights, Quezon City, and brought to Camp Crame, Quezon City, where
he is detained and restrained of liberty;
7. VICTOR FELIPE, who was similarly allowed to intervene as one of the petitioners in said three (3)
cases, upon the ground that, on August 23, 1971, at about 8 a.m., he was, likewise, apprehended at
Sta. Rosa, Laguna, by members of the Philippine Constabulary and brought, first to the
Constabulary headquarters at Canlubang, Laguna, and, then, to Camp Crame, Quezon City, where
he is detained and restrained of liberty;
8. TERESITO SISON, who was, also, allowed to intervene as one of the petitioners in the same
three (3) cases, he having been arrested in his residence, at 318 Lakandula St., Angeles City, on
August 22, 1971, between 6 and 7 p.m., and taken to the PC offices at Sto. Domingo, Angeles City,
then to Camp Olivas, San Fernando, Pampanga, and eventually to Camp Crame, Quezon City,
where he is restrained and deprived of liberty;
9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college students of St. Louis
University, Baguio City, on whose behalf, Domingo E. de Lara in his capacity as Chairman,
Committee on Legal Assistance, Philippine Bar Association filed on September 3, 1971, the
petition in Case No. L-34004, upon the ground that said Gerardo Tomas had, on August 23, 1971, at
about 6 a.m., been arrested by Constabulary agents, while on his way to school in the City of
Baguio, then brought to the Constabulary premises therein at Camp Holmes, and, thereafter, taken,
on August 24, 1971, to Camp Olivas, Pampanga, and thence, on August 25, 1971, to the
Constabulary headquarters at Camp Crame, Quezon City, where he is detained;
10. REYNALDO RIMANDO, petitioner in Case No. L-34013 filed on September 7, 1971 a 19year old student of the U.P. College in Baguio city who, while allegedly on his way home, at
Lukban Road, Baguio, on August 23, 1971, at about 1 a.m., was joined by three (3) men who
brought him to the Burnham Park, thence, to Camp Olivas at San Fernando, Pampanga, and,
thereafter, to Camp Crame, Quezon City, where he is detained;
11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C. DE CASTRO, on whose
behalf Carlos C. Rabago as President of the Conference Delegates Association of the Philippines
(CONDA) filed the petition in Case No. L-34039 on September 14, 1971 against Gen.
Eduardo M. Garcia, alleging that, on August 27, 1971, at about 3 p.m., Mrs. De Castro was arrested,
while at Liamzon Subdivision, Rosario, Pasig, Rizal, by agents of the Constabulary, and taken to the
PC headquarters at Camp Crame, where, later, that same afternoon, her husband was brought,
also, by PC agents and both are detained;
12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265 on October 26, 1971
against said Gen. Garcia, as Chief of the Constabulary, and Col. Prospero Olivas, Chief of the
Central Intelligence Service (CIS), Philippine Constabulary, alleging that, upon invitation from said
CIS, he went, on October 20, 1971, to Camp Aguinaldo, Quezon City, to see Gen. Manuel Yan, Chief
of Staff of the Armed Forces of the Philippines, who referred petitioner to Col. Laroya of the CIS; that
the latter, in turn, referred him to CIS Investigator Atty. Berlin Castillo and another CIS against,
whose name is unknown to the petitioner; and that, after being interrogated by the two (2), petitioner
was detained illegally; and
13. GARY OLIVAR, petitioner in Case No. L-34339 filed on November 10, 1971 who was
apprehended, by agents of the Constabulary, in the evening of November 8, 1941, in Quezon City,
and then detained at Camp Crame, in the same City.

Upon the filing of the aforementioned cases, the respondents were forthwith required to answer the
petitions therein, which they did. The return and answer in L-33964 which was, mutatis mutandis,
reproduced substantially or by reference in the other cases, except L-34265 alleges, inter alia,
that the petitioners had been apprehended and detained "on reasonable belief" that they had
"participated in the crime of insurrection or rebellion;" that "their continued detention is justified due
to the suspension of the privilege of the writ of habeas corpus pursuant to Proclamation No. 889 of
the President of the Philippines;" that there is "a state of insurrection or rebellion" in this country, and
that "public safety and the security of the State required the suspension of the privilege of the writ
of habeas corpus," as "declared by the President of the Philippines in Proclamation No. 889; that in
making said declaration, the "President of the Philippines acted on relevant facts gathered thru the
coordinated efforts of the various intelligence agents of our government but (of) which the Chief
Executive could not at the moment give a full account and disclosure without risking revelation of
highly classified state secrets vital to its safely and security"; that the determination thus made by the
President is "final and conclusive upon the court and upon all other persons" and "partake(s) of the
nature of political question(s) which cannot be the subject of judicial inquiry," pursuant to Barcelon v.
Baker, 5 Phil. 87, and Montenegro v. Castaeda, 91 Phil. 882; that petitioners "are under detention
pending investigation and evaluation of culpabilities on the reasonable belief" that they "have
committed, and are still committing, individually or in conspiracy with others, engaged in armed
struggle, insurgency and other subversive activities for the overthrow of the Government; that
petitioners cannot raise, in these proceedings for habeas corpus, "the question of their guilt or
innocence"; that the "Chief of Constabulary had petitioners taken into custody on the basis of the
existence of evidence sufficient to afford a reasonable ground to believe that petitioners come within
the coverage of persons to whom the privilege of the writ of habeas corpus has been suspended";
that the "continuing detention of the petitioners as an urgent bona fide precautionary and preventive
measure demanded by the necessities of public safety, public welfare and public interest"; that the
President of the Philippines has "undertaken concrete and abundant steps to insure that the
constitutional rights and privileges of the petitioners as well as of the other persons in current
confinement pursuant to Proclamation 889 remain unimpaired and unhampered"; and that
"opportunities or occasions for abuses by peace officers in the implementation of the proclamation
have been greatly minimized, if not completely curtailed, by various safeguards contained in
directives issued by proper authority."
These safeguards are set forth in:
1. A letter of the President to the Secretary of National Defense, dated August 21, 1971,
directing, inter alia, in connection with the arrest or detention of suspects pursuant to Proclamation
No. 889, that, except when caught inflagrante delicto, no arrest shall be made without warrant
authorized in writing by the Secretary of National Defense; that such authority shall not be granted
unless, "on the basis of records and other evidences," it appears satisfactorily, in accordance with
Rule 113, section 6(b), of the Rules of Court, that the person to be arrested is probably guilty of the
acts mentioned in the proclamation; that, if such person will be charged with a crime subject to an
afflictive penalty under the Anti-Subversion Act, the authorization for his arrest shall not be issued
unless supported by signed intelligence reports citing at least one reliable witness to the same overt
act; that no unnecessary or unreasonable force shall be used in effecting arrests; and that arrested
persons shall not be subject to greater restraint than is necessary for their detention;
2. Communications of the Chief of the Constabulary, dated August 23, 27, and 30, 1971, to all units
of his command, stating that the privilege of the writ is suspended for no other persons than those
specified in the proclamation; that the same does not involve material law; that precautionary
measures should be taken to forestall violence that may be precipitated by improper behavior of
military personnel; that authority to cause arrest under the proclamation will be exercised only by the
Metrocom, CMA, CIS, and "officers occupying position in the provinces down to provincial
commanders"; that there shall be no indiscriminate or mass arrests; that arrested persons shall not

be harmed and shall be accorded fair and humane treatment; and that members of the detainee's
immediate family shall be allowed to visit him twice a week;
3. A memorandum of the Department of National Defense, dated September 2, 1971, directing the
Chief of the Constabulary to establish appropriate Complaints and Action Bodies/Groups to prevent
and/or check any abuses in connection with the suspension of the privilege of the writ; and
4. Executive Order No. 333, dated August 26, 1971, creating a Presidential Administrative
Assistance Committee to hear complaints regarding abuses committed in connection with the
implementation of Proclamation No. 889.
Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and Juan Carandang
had been released from custody on August 31, 1971, "after it had been found that the evidence
against them was insufficient."
In L-34265, the "Answer and Return" filed by respondents therein traversed some allegations of fact
and conclusions of law made in the petition therein and averred that Antolin Oreta, Jr., the petitioner
therein, had been and is detained "on the basis of a reasonable ground to believe that he has
committed overt acts in furtherance of rebellion or insurrection against the government" and,
accordingly, "comes within the class of persons as to whom the privilege of the writ of habeas
corpus has been suspended by Proclamation No. 889, as amended," the validity of which is not
contested by him.
On August 30, 1971, the President issued Proclamation No. 889-A, amending Proclamation No. 889,
so as to read as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely established
that lawless elements in the country, which are moved by common or similar
ideological conviction, design and goal and enjoying the active moral and material
support of a foreign power and being guided and directed by a well-trained,
determined and ruthless group of men and taking advantage of our constitutional
liberties to promote and attain their ends, have entered into a conspiracy and have in
fact joined and banded their forces together for the avowed purpose of [actually]
staging, undertaking, [and] wagging and are actually engaged in an armed
insurrection and rebellion in order to forcibly seize political power in this country,
overthrow the duly constituted government, and supplant our existing political, social,
economic and legal order with an entirely new one whose form of government,
whose system of laws, whose conception of God and religion, whose notion of
individual rights and family relations, and whose political, social and economic
precepts are based on the Marxist-Leninist-Maoist teaching and beliefs;
WHEREAS, these lawless elements, acting in concert through front organizations
that are seemingly innocent and harmless, have continuously and systematically
strengthened and broadened their memberships through sustained and careful
recruiting and enlistment of new adherents from among our peasantly, laborers,
professionals, intellectuals, students, and mass media personnel, and through such
sustained and careful recruitment and enlistment have succeeded in infiltrating
almost every segment of our society in their ceaseless determination to erode and
weaken the political, social, economic and moral foundations of our existing
government and influence many peasant, labor, professional, intellectual, student
and mass media organizations to commit acts of violence and depredations against

our duly constituted authorities, against the members of our law enforcement
agencies, and worst of all, against the peaceful members of our society;
WHEREAS, these lawless elements, by their acts of rebellion and insurrection, have
created a state of lawlessness and disorder affecting public safety and security of the
State, the latest manifestation of which has been the dastardly attack on the Liberal
Party rally in Manila on August 21, 1971, which has resulted in the death and serious
injury of scores of persons;
WHEREAS, public safety requires that immediate and effective action be taken in
order to maintain peace and order, secure the safety of the people and preserve the
authority of the State;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the privilege of the writ of habeas corpus for the
persons presently detained, as well as all others who may be hereafter similarly
detained for the crimes of insurrection or rebellion [,] and [all] other [crimes and
offenses] overt acts committed by them in furtherance [or on the occasion] thereof[,].
[or incident thereto, or in connection therewith.] 1
On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly heard and
then the parties therein were allowed to file memoranda, which were submitted from September 3 to
September 9, 1971.
Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further amended by
Proclamation No. 889-B, lifting the suspension of the privilege of the writ of habeas corpus in the
following provinces, sub-provinces and cities of the Philippine, namely:
A. PROVINCES:
1. Batanes 15. Negros Occ.
2. Ilocos Norte 16. Negros Or.
3. Ilocos Sur 17. Cebu
4. Abra 18. Bohol
5. Abra 19. Capiz
6. Pangasinan 20. Aklan
7. Batangas 21. Antique
8. Catanduanes 22. Iloilo
9. Masbate 23. Leyte
10. Romblon 24. Leyte del Sur
11. Marinduque 25. Northern Samar
12. Or. Mindoro 26. Eastern Samar
13. Occ. Mindoro 27. Western Samar
14. Palawan.
B. SUB-PROVINCES:
1. Guimaras 3. Siquior
2. Biliran

C. CITIES:
1. Laog 10. Bacolod
2. Dagupan 11. Bago
3. San Carlos 12. Canlaon
4. Batangas 13. La Carlota
5. Lipa 14. Bais
6. Puerto Princesa 15. Dumaguete
7. San Carlos (Negros 16. Iloilo
Occ.) 17. Roxas
8. Cadiz 18. Tagbilaran
9. Silay 19. Lapu-lapu
20. Cebu 24. Tacloban
21. Mandaue 25. Ormoc
22. Danao 26. Calbayog
23. Toledo
On September 25, 1971, the President issued Proclamation No. 889-C, restoring the privilege of the
writ in the following provinces and cities:
A. PROVINCES:
1. Surigao del Norte 8. Agusan del Sur
2. Surigao del Sur 9. Misamis Or.
3. Davao del Norte 10. Misamis Occ.
4. Davao del Sur 11. Zamboanga del Norte
5. Davao Oriental 12. Basilan
6. Bukidnon 13. Pagadian
7. Agusan del Norte
B. CITIES:
1. Surigao 8. Tangub
2. Davao 9. Dapitan
3. Butuan 10. Dipolog
4. Cagayan 11. Zamboanga
5. Gingoong 12. Basilan
6. Ozamiz 13. Pagadian.
7. Oroquieta
On October 4, 1971, the suspension of the privilege was further lifted by Proclamation No. 889-D, in
the following places:
A. PROVINCES:
1. Cagayan 5. Camarines
2. Cavite 6. Albay
3. Mountain Province 7. Sorsogon
4. Kalinga-Apayao

B. CITIES:
1. Cavite City 3. Trece Martires
2. Tagaytay 4. Legaspi
As a consequences, the privilege of the writ of habeas corpus is still suspended in the following
eighteen (18) provinces, two (2) sub-provinces and eighteen (18) cities, to wit:
A. PROVINCE:
1. Bataan 10. North Cotabato
2. Benguet 11. Nueva Ecija
3. Bulacan 13. Pampanga
4. Camarines Sur 14. Quezon
5. Ifugao 15. Rizal
6. Isabela 16. South Cotabato
7. Laguna 17. Tarlac
8. Lanao del Norte 18. Zambales
9. Lanao del Norte
B. SUB-PROVINCES:
1. Aurora 2. Quirino
C. CITIES:
1. Angeles 10. Manila
2. Baguio 11. Marawi
3. Cabanatuan 12. Naga
4. Caloocan 13. Olongapo
5. Cotabato 14. Palayan
6. General Santos 15. Pasay
7. Iligan 16. Quezon
8 Iriga 17. San Jose
9 Lucena 18. San Pablo
The first major question that the Court had to consider was whether it would adhere to the view
taken in Barcelon v. Baker, 2 and reiterated in Montenegro v. Castaeda, 3 pursuant to which, "the
authority to decide whether the exigency has arisen requiring suspension (of the privilege of the writ
of habeas corpus) belongs to the President and his 'decision is final and conclusive' upon the courts and
upon all other persons." Indeed, had said question been decided in the affirmative the main issue in all of
these cases, except
L-34339, would have been settled, and, since the other issues were relatively of minor importance, said
cases could have been readily disposed of. Upon mature deliberation, a majority of the Members of the
Court had, however, reached, although tentatively, a consensus to the contrary, and decided that the
Court had authority to and should inquire into the existence of the factual bases required by the
Constitution for the suspension of the privilege of the writ; but before proceeding to do so, the Court
deemed it necessary to hear the parties on the nature and extent of the inquiry to be undertaken, none of
them having previously expressed their views thereof. Accordingly, on October 5, 1971, the Court issued,
in L-33964, L-33965, L-33973 and L-33982, a resolution stating in part that

... a majority of the Court having tentatively arrived at a consensus that it may inquire
in order to satisfy itself of the existence of the factual bases for the issuance of
Presidential Proclamations Nos. 889 and 889-A (suspending the privilege of the writ
of habeas corpus for all persons detained or to be detained for the crimes of rebellion
or insurrection throughout the Philippines, which area has lately been reduced to
some eighteen provinces, two subprovinces and eighteen cities with the partial lifting
of the suspension of the privilege effected by Presidential Proclamations Nos. 889-B,
889-C and 889-D) and thus determine the constitutional sufficiency of such bases in
the light of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par.
2, of the Philippine Constitution; and considering that the members of the Court are
not agreed on the precise scope and nature of the inquiry to be made in the
premises, even as all of them are agreed that the Presidential findings are entitled to
great respect, the Court RESOLVED that these cases be set for rehearing on
October 8, 1971 at 9:30 A.M.
xxx xxx xxx
On October 8, 1971, said four cases were, therefore, heard, once again, but, this time jointly with
cases Nos. L-34004, L-34013, and L-34039, and the parties were then granted a period to file
memoranda, in amplification of their respective oral arguments, which memoranda were submitted
from October 12 to October 21, 1971.
Respondents having expressed, during the oral arguments, on September 1 and October 8, 1971,
their willingness to impart to the Court classified information relevant to these cases, subject to
appropriate security measures, the Court met at closed doors, on October 28 and 29, 1971, and, in
the presence of three (3) attorneys for the petitioners, chosen by the latter, namely, Senator Jose W.
Diokno, Senator Salvador H. Laurel, and Atty. Leopoldo Africa, as well as of the Solicitor General
and two (2) members of his staff, was briefed, by Gen. Manuel Yan, Chief of Staff of the Armed
Forces of the Philippines, Gen. Fidel Ramos, Deputy Chief of Staff, Gen. Felizardo Tanabe, Col.
Tagumpay Nanadiego, Judge Advocate General, JAGS (GSC), and other ranking officers of said
Armed Forces, on said classified information, most of which was contained in reports and other
documents already attached to the records. During the proceedings, the members of the Court, and,
occassionally, counsel for the petitioners, propounded pertinent questions to said officers of the
Armed Forces. Both parties were then granted a period of time within which to submit their
respective observations, which were filed on November 3, 1971, and complemented by some
documents attached to the records on November 6, 1971, and a summary, submitted on November
15, 1971, of the aforesaid classified information.
In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed and the parties
therein were heard in oral argument on November 4, and 16, 1971, respectively.
On November 15, 1971, the Solicitor General filed manifestations motions stating that on
November 13, 1971, the following petitioners were:
(a) released from custody:
(1) Teodosio Lansang -- G.R. No. L-33964
(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013

(7) Filomeno M. de Castro -- " " L-34039


(8) Barcelisa de Castro -- " " L-34039
(9) Antolin Oreta, Jr. -- " " L-34264.
(b) charged, together with other persons named in the criminal complaint filed therefor, with a
violation of Republic Act No. 1700 (Anti-Subversion Act), in the City Fiscal's Office of Quezon City:
(1) Angelo de los Reyes -- G.R. No. L-22982 *
(2) Teresito Sison -- " " L-33982 *
(c) accused, together with many others named in the criminal complaint filed therefor, of a violation
of section 4 of Republic Act No. 1700 (Anti-Subversion Act), in the Court of First Instance of Rizal:
(1) Rodolfo del Rosario -- G.R. No. L-33969 **
(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *
and continue under detention pursuant to Proclamation No. 889, as amended, and praying that the
petitions in G.R. Nos. L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039 be dismissed,
without prejudice to the resolution of the remaining cases. Copy of the criminal complaint filed, as
above stated, with the Court of First Instance of Rizal and docketed therein as Criminal Case No. Q1623 of said court which was appended to said manifestations-motions of the respondent as
Annex 2 thereof shows that Gary Olivar, the petitioner in L-34339, is one of the defendants in said
case.
Required to comment on said manifestations-motions, Luzvimindo David, petitioner in L-33973, in
his comment dated November 23, 1971, urged the Court to rule on the merits of the petitions in all of
these cases, particularly on the constitutionality of Presidential Proclamation No. 889, as amended,
upon the ground that he is still detained and that the main issue is one of public interest involving as
it does the civil liberties of the people. Angelo de los Reyes, one of the petitioners in L-33964, L33965 and L-33973, Nemesio E. Prudente and Gerardo Tomas, for whose respective benefit the
petitions in L-33982 and L-34004 have been filed, maintained that the issue in these cases is not
moot, not even for the detainees who have been released, for, as long as the privilege of the writ
remains suspended, they are in danger of being arrested and detained again without just cause or
valid reason. In his reply, dated and filed on November 29, 1971, the Solicitor General insisted that
the release of the above-named petitioners rendered their respective petitions moot and academic.
I
Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of the
proclamation suspending the privilege of the writ of habeas corpus. In this connection, it should be
noted that, as originally formulated, Proclamation No. 889 was contested upon the ground that it did
not comply with the pertinent constitutional provisions, namely, paragraph (14) of section 1, Article III
of our Constitution, reading:
The privilege of the writ of habeas corpus shall not be suspended except in cases of
invasion, insurrection, or rebellion, when the public safety requires it, in any way of
which events the same may be suspended wherever during such period the
necessity for such suspension shall exist.
and paragraph (2), section 10, Article VII of the same instrument, which provides that:

The President shall be commander-in-chief of all armed forces of the Philippines, and
whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion,
insurrection, or rebellion, or imminent danger thereof when the public safety requires
it, he may suspend the privileges of the writ of habeas corpus, or place the
Philippines or any part thereof under martial law.
Regardless of whether or not the President may suspend the privilege of the writ of habeas corpus in
case of "imminent danger" of invasion, insurrection or rebellion which is one of the grounds stated
in said paragraph (2), section 10 of Art. VII of the Constitution, but not mentioned in paragraph (14),
section 1 of its Bill of Rights petitioners maintained that Proclamation No. 889 did not declare the
existence of actual "invasion insurrection or rebellion or imminent danger thereof," and that,
consequently, said Proclamation was invalid. This contention was predicated upon the fact that,
although the first "whereas" in Proclamation No. 889 stated that "lawless elements" had "entered into
a conspiracy and have in fact joined and banded their forces together for the avowed purposeof
actually staging, undertaking and waging an armed insurrection and rebellion," the actuality so
alleged refers to the existence, not of an uprising that constitutes the essence of a rebellion or
insurrection, but of the conspiracyand the intent to rise in arms.
Whatever may be the merit of this claim, the same has been rendered moot and academic by
Proclamation No. 889-A, issued nine (9) days after the promulgation of the original proclamation, or
on August 30, 1971. Indeed, said Proclamation No. 889-A amended, inter alia, the first "whereas" of
the original proclamation by postulating the said lawless elements "have entered into a conspiracy
and have in fact joined and banded their forces together for the avowed purpose of staging,
undertaking, waging and are actually engaged in an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly constituted government, and supplant
our existing political, social, economic and legal order with an entirely new one ...." Moreover, the
third "whereas" in the original proclamation was, likewise, amended by alleging therein that said
lawless elements, "by their acts of rebellion and insurrection," have created a state of lawlessness
and disorder affecting public safety and the security of the State. In other words, apart from
adverting to the existence of actualconspiracy and of the intent to rise in arms to overthrow the
government, Proclamation No. 889-A asserts that the lawless elements "are actually engaged in an
armed insurrection and rebellion" to accomplish their purpose.
It may not be amiss to note, at this juncture, that the very tenor of the original proclamation and
particularly, the circumstances under which it had been issued, clearly suggest the intent to aver that
there was and is, actually, a state of rebellion in the Philippines, although the language of said
proclamation was hardly a felicitous one, it having in effect, stressed the actuality of the intent to rise
in arms, rather than of the factual existence of the rebellion itself. The pleadings, the oral arguments
and the memoranda of respondents herein have consistently and abundantly emphasized to
justify the suspension of the privilege of the writ of habeas corpus the acts of violence and
subversion committed prior to August 21, 1971, by the lawless elements above referred to, and the
conditions obtaining at the time of the issuance of the original proclamation. In short, We hold that
Proclamation No. 889-A has superseded the original proclamation and that the flaws attributed
thereto are purely formal in nature.
II
Let us now consider the substantive validity of the proclamation, as amended. Pursuant to the
above-quoted provisions of the Constitution, two (2) conditions must concur for the valid exercise of
the authority to suspend the privilege to the writ, to wit: (a) there must be "invasion, insurrection, or
rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the Constitution "imminent

danger thereof," and (b) "public safety" must require the suspension of the privilege. The Presidential
Proclamation under consideration declares that there has been and there is actually a state of
rebellion and
that 4 "public safety requires that immediate and effective action be taken in order to maintain peace and
order, secure the safety of the people and preserve the authority of the State."
Are these findings conclusive upon the Court? Respondents maintain that they are, upon the
authority of Barcelon v. Baker 5 and Montenegro v. Castaeda. 6 Upon the other hand, petitioners press
the negative view and urge a reexamination of the position taken in said two (2) cases, as well as a
reversal thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a) it relied
heavily upon Martin v. Mott 7 involving the U.S. President's power to call out the militia, which he being
the commander-in-chief of all the armed forces may be exercised to suppress or prevent any lawless
violence, even without invasion, insurrection or rebellion, or imminent danger thereof, and is, accordingly,
much broader than his authority to suspend the privilege of the writ of habeas corpus, jeopardizing as the
latter does individual liberty; and (b) the privilege had been suspended by the American GovernorGeneral, whose act, as representative of the Sovereign, affecting the freedom of its subjects, can hardly
be equated with that of the President of the Philippines dealing with the freedom of the Filipino people, in
whom sovereignty resides, and from whom all government authority emanates. The pertinent ruling in the
Montenegro case was based mainly upon the Barcelon case, and hence, cannot have more weight than
the same. Moreover, in the Barcelon case, the Court held that it could go into the question: "Did the
Governor-General" acting under the authority vested in him by the Congress of the United States, to
suspend the privilege of the writ of habeas corpus under certain conditions "act in conformance with
such authority?" In other words, it did determine whether or not the Chief Executive had acted in
accordance with law. Similarly, in the Montenegro case, the Court held that petitioner therein had "failed to
overcome the presumption of correctness which the judiciary accords to acts of the Executive ...." In
short, the Court considered the question whether or not there really was are rebellion, as stated in the
proclamation therein contested.
Incidentally, even the American jurisprudence is neither explicit nor clear on the point under
consideration. Although some cases 8 purport to deny the judicial power to "review" the findings made in
the proclamations assailed in said cases, the tenor of the opinions therein given, considered as a whole,
strongly suggests the court's conviction that the conditions essential for the validity of said proclamations
or orders were, in fact, present therein, just as the opposite view taken in other cases 9 had a backdrop
permeated or characterized by the belief that said conditions were absent. Hence, the dictum of Chief
Justice Taney to the effect that "(e)very case must depend on its own circumstances." 10 One of the
important, if not dominant, factors, in connection therewith, was intimated in Sterling v. Constantin, 11 in
which the Supreme Court of the United States, speaking through Chief Justice Hughes, declared that:
.... When there is a substantial showing that the exertion of state power has
overridden private rightssecured by that Constitution, the subject is necessarily one
for judicial inquiry in an appropriate proceeding directed against the individuals
charged with the transgression. To such a case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to its
exercise. .... 12
In our resolution of October 5, 1971, We stated that "a majority of the Court" had "tentatively arrived
at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the
issuance of Presidential Proclamations Nos. 889 and 889-A ... and thus determine the constitutional
sufficiency of such basesin the light of the requirements of Article III, sec. 1, par. 14, and Article VII,
sec. 10, par 2, of the Philippine Constitution...." Upon further deliberation, the members of the Court
are now unanimous in the conviction that it has the authority to inquire into the existence of said
factual bases in order to determine the constitutional sufficiency thereof.

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority
conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is
limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an
exception thereto. What is more, it postulates the former in the negative, evidently to stress its
importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended ...."
It is only by way of exception that it permits the suspension of the privilege "in cases of invasion,
insurrection, or rebellion" or, under Art VII of the Constitution, "imminent danger thereof" "when
the public safety requires it, in any of which events the same may be suspended wherever during
such period the necessity for such suspension shall exist." 13 For from being full and plenary, the
authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the
prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the
place where it may be exercised. These factors and the aforementioned setting or conditions mark,
establish and define the extent, the confines and the limits of said power, beyond which it does not exist.
And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative
department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by
courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely,
the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.
Much less may the assumption be indulged in when we bear in mind that our political system is
essentially democratic and republican in character and that the suspension of the privilege affects
the most fundamental element of that system, namely, individual freedom. Indeed, such freedom
includes and connotes, as well as demands, the right of every single member of our citizenry to
freely discuss and dissent from, as well as criticize and denounce, the views, the policies and the
practices of the government and the party in power that he deems unwise, improper or inimical to
the commonwealth, regardless of whether his own opinion is objectively correct or not. The
untrammelled enjoyment and exercise of such right which, under certain conditions, may be a
civic duty of the highest order is vital to the democratic system and essential to its successful
operation and wholesome growth and development.
Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and
exercised, not in derogation thereof, but consistently therewith, and, hence, within the framework of
the social order established by the Constitution and the context of the Rule of Law. Accordingly,
when individual freedom is used to destroy that social order, by means of force and violence, in
defiance of the Rule of Law such as by rising publicly and taking arms against the government to
overthrow the same, thereby committing the crime of rebellion there emerges a circumstance that
may warrant a limited withdrawal of the aforementioned guarantee or protection, by suspending the
privilege of the writ of habeas corpus, when public safety requires it. Although we must be
forewarned against mistaking mere dissent no matter how emphatic or intemperate it may be
for dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less refuse
when the existence of such rebellion or insurrection has been fairly established or cannot reasonably
be denied to uphold the finding of the Executive thereon, without, in effect, encroaching upon a
power vested in him by the Supreme Law of the land and depriving him, to this extent, of such
power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Law the
Court is called upon to epitomize.
As heretofore adverted to, for the valid suspension of the privilege of the writ: (a) there must be
"invasion, insurrection or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the
Constitution "imminent danger thereof"; and (b) public safety must require the aforementioned
suspension. The President declared in Proclamation No. 889, as amended, that both conditions are
present.
As regards the first condition, our jurisprudence 14 attests abundantly to the Communist activities in the
Philippines, especially in Manila, from the late twenties to the early thirties, then aimed principally at

incitement to sedition or rebellion, as the immediate objective. Upon the establishment of the
Commonwealth of the Philippines, the movement seemed to have waned notably; but, the outbreak of
World War II in the Pacific and the miseries, the devastation and havoc, and the proliferation of
unlicensed firearms concomitant with the military occupation of the Philippines and its subsequent
liberation, brought about, in the late forties, a resurgence of the Communist threat, with such vigor as to
be able to organize and operate in Central Luzon an army called HUKBALAHAP, during the
occupation, and renamed Hukbong Mapagpalaya ng Bayan (HMP) after liberation which clashed
several times with the armed forces of the Republic. This prompted then President Quirino to issue
Proclamation No. 210, dated October 22, 1950, suspending the privilege of the writ of habeas corpus, the
validity of which was upheld in Montenegro v. Castaeda. 15 Days before the promulgation of said
Proclamation, or on October 18, 1950, members of the Communist Politburo in the Philippines were
apprehended in Manila. Subsequently accused and convicted of the crime of rebellion, they served their
respective sentences. 16

The fifties saw a comparative lull in Communist activities, insofar as peace and order were
concerned. Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as the Anti-Subversion Act,
was approved, upon the ground stated in the very preamble of said statute that.
... the Communist Party of the Philippines, although purportedly a political party, is in
fact an organized conspiracy to overthrow the Government of the Republic of the
Philippines, not only by force and violence but also by deceit, subversion and other
illegal means, for the purpose of establishing in the Philippines a totalitarian regime
subject to alien domination and control;
... the continued existence and activities of the Communist Party of the Philippines
constitutes a clear, present and grave danger to the security of the Philippines; 17 and
... in the face of the organized, systematic and persistent subversion, national in
scope but international in direction, posed by the Communist Party of the Philippines
and its activities, there is urgent need for special legislation to cope with this
continuing menace to the freedom and security of the country....
In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the Senate Ad
Hoc Committee of Seven copy of which Report was filed in these cases by the petitioners herein

The years following 1963 saw the successive emergence in the country of several
mass organizations, notably the Lapiang Manggagawa (now the Socialist Party of the
Philippines) among the workers; the Malayang Samahan ng mga Magsasaka
(MASAKA) among the peasantry; the Kabataang Makabayan (KM) among the
youth/students; and the Movement for the Advancement of Nationalism (MAN)
among the intellectuals/professionals. The PKP has exerted all-out effort to infiltrate,
influence and utilize these organizations in promoting its radical brand of
nationalism. 18
Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups, one of
which composed mainly of young radicals, constituting the Maoist faction reorganized the
Communist Party of the Philippines early in 1969 and established a New People's Army. This faction
adheres to the Maoist concept of the "Protracted People's War" or "War of National Liberation." Its
"Programme for a People's Democratic Revolution" states, inter alia:

The Communist Party of the Philippines is determined to implement its general


programme for a people's democratic revolution. All Filipino communists are ready to
sacrifice their lives for the worthy cause of achieving the new type of democracy, of
building a new Philippines that is genuinely and completely independent, democratic,
united, just and prosperous ...
xxx xxx xxx
The central task of any revolutionary movement is to seize political power. The
Communist Party of the Philippines assumes this task at a time that both the
international and national situations are favorable of asking the road of armed
revolution ... 19
In the year 1969, the NPA had according to the records of the Department of National Defense
conducted raids, resorted to kidnappings and taken part in other violent incidents numbering over
230, in which it inflicted 404 casualties, and, in turn, suffered 243 losses. In 1970, its records of
violent incidents was about the same, but the NPA casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the traditional
group or to the Maoist faction, believe that force and violence are indispensable to the attainment of
their main and ultimate objective, and act in accordance with such belief, although they may
disagree on the means to be used at a given time and in a particular place; and (b) there is a New
People's Army, other, of course, that the arm forces of the Republic and antagonistic thereto. Such
New People's Army is per se proof of the existence of a rebellion, especially considering that its
establishment was announced publicly by the reorganized CPP. Such announcement is in the nature
of a public challenge to the duly constituted authorities and may be likened to a declaration of war,
sufficient to establish a war status or a condition of belligerency, even before the actual
commencement of hostilities.
We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly
risen in arms to overthrow the government and have thus been and still are engaged in rebellion
against the Government of the Philippines.
In fact, the thrust of petitioners' argument is that the New People's Army proper is too small,
compared with the size of the armed forces of the Government, that the Communist rebellion or
insurrection cannot so endanger public safety as to require the suspension of the privilege of the writ
of habeas corpus. This argument does not negate, however, the existence of a rebellion, which, from
the constitutional and statutory viewpoint, need not be widespread or attain the magnitude of a civil
war. This is apparent from the very provision of the Revised Penal Code defining the crime of
rebellion, 20 which may be limited in its scope to "any part" of the Philippines, and, also, from paragraph
(14) of section 1, Article III of the Constitution, authorizing the suspension of the privilege of the writ
"wherever" in case of rebellion "the necessity for such suspension shall exist." In fact, the case of
Barcelon v. Baker referred to a proclamation suspending the privilege in the provinces of Cavite and
Batangas only. The case of In re Boyle 21 involved a valid proclamation suspending the privilege in a
smaller area a country of the state of Idaho.
The magnitude of the rebellion has a bearing on the second condition essential to the validity of the
suspension of the privilege namely, that the suspension be required by public safety. Before
delving, however, into the factual bases of the presidential findings thereon, let us consider the
precise nature of the Court's function in passing upon the validity of Proclamation No. 889, as
amended.

Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ
of habeas corpus under specified conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand
with the system of checks and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts withinthe sphere allotted to him by the
Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial
Department, which, in this respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to check not to supplant 22
the Executive,or to ascertain merely whether he had gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. To be sure, the
power of the Court to determine the validity of the contested proclamation is far from being identical to, or
even comparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal
from inferior courts, in which cases the appellate court has all of the powers of the court of origin.
Under the principle of separation of powers and the system of checks and balances, the judicial
authority to review decisions of administrative bodies or agencies is much more limited, as regards
findings of fact made in said decisions. Under the English law, the reviewing court
determines only whether there is some evidentiary basis for the contested administrative findings; no
quantitative examination of the supporting evidence is undertaken. The administrative findings can
be interfered with only if there is no evidence whatsoever in support thereof, and said finding is,
accordingly, arbitrary, capricious and obviously unauthorized. This view has been adopted by some
American courts. It has, likewise, been adhered to in a number of Philippine cases. Other cases,
in both jurisdictions, have applied the "substantial evidence" rule, which has been construed to mean
"more than a mere scintilla" or "relevant evidence as a reasonable mind might accept as adequate to
support a conclusion," 23 even if other minds equally reasonable might conceivably opine otherwise.
Manifestly, however, this approach refers to the review of administrative determinations involving the
exercise of quasi-judicial functions calling for or entailing the reception of evidence. It does not and
cannot be applied, in its aforesaid form, in testing the validity of an act of Congress or of the
Executive, such as the suspension of the privilege of the writ of habeas corpus, for, as a general
rule, neither body takes evidence in the sense in which the term is used in judicial proceedings
before enacting a legislation or suspending the writ. Referring to the test of the validity of a statute,
the Supreme Court of the United States, speaking through Mr. Justice Roberts, expressed, in the
leading case of Nebbia v. New York, 24 the view that:
... If the laws passed are seen to have a reasonable relation to a proper legislative
purpose, and areneither arbitrary nor discriminatory, the requirements of due process
are satisfied, and judicial determination to that effect renders a court functus officio ...
With the wisdom of the policy adopted, with the adequacy or practically of the law
enacted to forward it, the courts are both incompetent andunauthorized to deal ...
Relying upon this view, it is urged by the Solicitor General
... that judicial inquiry into the basis of the questioned proclamation can go no
further than to satisfy the Court not that the President's decision is correct and that
public safety was endanger by the rebellion and justified the suspension of the writ,
but that in suspending the writ, the President did not act arbitrarily.
No cogent reason has been submitted to warrant the rejection of such test. Indeed, the co-equality of
coordinate branches of the Government, under our constitutional system, seems to demand that the

test of the validity of acts of Congress and of those of the Executive be, mutatis mutandis,
fundamentally the same. Hence, counsel for petitioner Rogelio Arienda admits that the proper
standard is not correctness, but arbitrariness.
Did public safety require the suspension of the privilege of the writ of habeas corpus decreed in
Proclamation No. 889, as amended? Petitioners submit a negative answer upon the ground: (a) that
there is no rebellion; (b) that, prior to and at the time of the suspension of the privilege, the
Government was functioning normally, as were the courts; (c) that no untoward incident,
confirmatory of an alleged July-August Plan, has actually taken place after August 21, 1971; (d) that
the President's alleged apprehension, because of said plan, is non-existent and unjustified; and (e)
that the Communist forces in the Philippines are too small and weak to jeopardize public safety to
such extent as to require the suspension of the privilege of the writ of habeas corpus.
As above indicated, however, the existence of a rebellion is obvious, so much so that counsel for
several petitioners herein have admitted it.
With respect to the normal operation of government, including courts, prior to and at the time of the
suspension of the privilege, suffice it to say that, if the conditions were such that courts of justice no
longer functioned, a suspension of the privilege would have been unnecessary, there being no
courts to issue the writ of habeas corpus. Indeed, petitioners' reference to the normal operation of
courts as a factor indicative of the illegality of the contested act of the Executive stems, perhaps,
from the fact that this circumstance was adverted to in some American cases to justify the
invalidation therein decreed of said act of the Executive. Said cases involved, however, the
conviction by military courts of members of the civilian population charged with common crimes. It
was manifestly, illegal for military courts to assume jurisdiction over civilians so charged, when civil
courts were functioning normally.
Then, too, the alleged absence of any untoward incident after August 21, 1971, does not necessarily
bear out petitioners' view. What is more, it may have been due precisely to the suspension of the
privilege. To be sure, one of its logical effects is to compel those connected with the insurrection or
rebellion to go into hiding. In fact, most of them could not be located by the authorities, after August
21, 1971.
The alleged July-August Plan to terrorize Manila is branded as incredible, upon the theory that,
according to Professor Egbal Ahman of Cornell University, "guerrilla use of terror ... is sociological
and psychologically selective," and that the indiscriminate resort to terrorism is bound to boomerang,
for it tends to alienate the people's symphaty and to deprive the dissidents of much needed mass
support. The fact, however, is that the violence used is some demonstrations held in Manila in 1970
and 1971 tended to terrorize the bulk of its inhabitants. It would have been highly imprudent,
therefore, for the Executive to discard the possibility of a resort to terrorism, on a much bigger scale,
under the July-August Plan.
We will now address our attention to petitioners' theory to the effect that the New People's Army of
the Communist Party of the Philippines is too small to pose a danger to public safety of such
magnitude as to require the suspension of the privilege of the writ of habeas corpus. The flaw in
petitioners' stand becomes apparent when we consider that it assumes that the Armed Forces of the
Philippines have no other task than to fight the New People's Army, and that the latter is the only
threat and a minor one to our security. Such assumption is manifestly erroneous.
The records before Us show that, on or before August 21, 1971, the Executive had information and
reports subsequently confirmed, in many respects, by the abovementioned Report of the Senate
Ad-Hoc Committee of Seven 25 to the effect that the Communist Party of the Philippines does not

merely adhere to Lenin's idea of a swift armed uprising; that it has, also, adopted Ho Chi Minh's terrorist
tactics and resorted to the assassination of uncooperative local official; that, in line with this policy, the
insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of police; that there were fourteen (14)
meaningful bombing incidents in the Greater Manila Area in 1970; that the Constitutional Convention Hall
was bombed on June 12, 1971; that, soon after the Plaza Miranda incident, the NAWASA main pipe, at
the Quezon City-San Juan boundary, was bombed; that this was followed closely by the bombing of the
Manila City Hall, the COMELEC building, the Congress Building and the MERALCO substation at Cubao,
Quezon City; and that the respective residences of Senator Jose J. Roy and Congressman Eduardo
Cojuangco were, likewise, bombed, as were the MERALCO main office premises, along Ortigas Avenue,
and the Doctor's Pharmaceuticals, Inc. Building, in Caloocan City.

Petitioners, similarly, fail to take into account that as per said information and reports the
reorganized Communist Party of the Philippines has, moreover, adopted Mao's concept of protracted
people's war, aimed at the paralyzation of the will to resist of the government, of the political,
economic and intellectual leadership, and of the people themselves; that conformably to such
concept, the Party has placed special emphasis upon a most extensive and intensive program of
subversion by the establishment of front organizations in urban centers, the organization of armed
city partisans and the infiltration in student groups, labor unions, and farmer and professional
groups; that the CPP has managed to infiltrate or establish and control nine (9) major labor
organizations; that it has exploited the youth movement and succeeded in making Communist fronts
of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30)
mass organizations actively advancing the CPP interests, among which are the Malayang Samahan
ng Magsasaka (MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of
Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM)
and the Malayang Pagkakaisa ng Kabataang Pilipino(MPKP); that, as of August, 1971, the KM had
two hundred forty-five (245) operational chapters throughout the Philippines, of which seventy-three
(73) were in the Greater Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon,
forty-two (42) in the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had
recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three (33) ended
in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these
actions were organized, coordinated or led by the aforementioned front organizations; that the
violent demonstrations were generally instigated by a small, but well-trained group of armed
agitators; that the number of demonstrations heretofore staged in 1971 has already exceeded those
of 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of
fifteen (15) persons and the injury of many more.
Subsequent events as reported have also proven that petitioners' counsel have
underestimated the threat to public safety posed by the New People's Army. Indeed, it appears
that, since August 21, 1971, it had in Northern Luzon six (6) encounters and staged one (1) raid, in
consequence of which seven (7) soldiers lost their lives and two (2)others were wounded, whereas
the insurgents suffered five (5) casualties; that on August 26, 1971, a well-armed group of NPA,
trained by defector Lt. Victor Corpus, attacked the very command port of TF LAWIN in Isabela,
destroying two (2) helicopters and one (1) plane, and wounding one (1) soldier; that the NPA had in
Central Luzon a total of four (4) encounters, with two (2) killed and three (3) wounded on the side of
the Government, one (1) BSDU killed and three (3) NPA casualties; that in an encounter at Botolan,
Zambales, one (1) KM-SDK leader, an unidentified dissident, and Commander Panchito, leader of
the dissident group were killed; that on August 26, 1971, there was an encounter in the barrio of San
Pedro. Iriga City, Camarines Sur, between the PC and the NPA, in which a PC and two (2) KM
members were killed; that the current disturbances in Cotabato and the Lanao provinces have been
rendered more complex by the involvement of the CPP/NPA, for, in mid-1971, a KM group, headed
by Jovencio Esparagoza, contacted the Higa-onan tribes, in their settlement in Magsaysay, Misamis
Oriental, and offered them books, pamphlets and brochures of Mao Tse Tung, as well as conducted

teach-ins in the reservation; that Esparagoza an operation of the PC in said reservation; and that
there are now two (2) NPA cadres in Mindanao.
It should, also, be noted that adherents of the CPP and its front organizations are, according to
intelligence findings, definitely capable of preparing powerful explosives out of locally available
materials; that the bomb used in the Constitutional Convention Hall was a "clay-more" mine, a
powerful explosive device used by the U.S. Army, believed to have been one of many pilfered from
the Subic Naval Base a few days before; that the President had received intelligence information to
the effect that there was a July-August Plan involving a wave of assassinations, kidnappings,
terrorism and mass destruction of property and that an extraordinary occurence would signal the
beginning of said event; that the rather serious condition of peace and order in Mindanao,
particularly in Cotabato and Lanao, demanded the presence therein of forces sufficient to cope with
the situation; that a sizeable part of our armed forces discharge other functions; and that the
expansion of the CPP activities from Central Luzon to other parts of the country, particularly Manila
and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region, required
that the rest of our armed forces be spread thin over a wide area.
Considering that the President was in possession of the above data except those related to
events that happened after August 21, 1971 when the Plaza Miranda bombing took place, the
Court is not prepared to hold that the Executive had acted arbitrarily or gravely abused his discretion
when he then concluded that public safety and national security required the suspension of the
privilege of the writ, particularly if the NPA were to strike simultaneously with violent demonstrations
staged by the two hundred forty-five (245) KM chapters, all over the Philippines, with the assistance
and cooperation of the dozens of CPP front organizations, and the bombing or water mains and
conduits, as well as electric power plants and installations a possibility which, no matter how
remote, he was bound to forestall, and a danger he was under obligation to anticipate and arrest.
He had consulted his advisers and sought their views. He had reason to feel that the situation was
critical as, indeed, it was and demanded immediate action. This he took believing in good faith
that public safety required it. And, in the light of the circumstances adverted to above, he had
substantial grounds to entertain such belief.
Petitioners insist that, nevertheless, the Pre