P.E.T. CASE No.

002 March 29, 2005

RONALD ALLAN POE a.k.a. FERNANDO POE, JR., Protestant,

vs.
GLORIA MACAPAGAL-ARROYO, Protestee.

RESOLUTION

QUISUMBING, J.:

The moving finger writes, says Omar Khayyam in the Rubayyat, and having writ, moves on. Nor all
your piety nor wit, adds the poet, could lure it back to cancel half a line; nor all your tears wash out a
word of it.

Such is my view on the providential case for our consideration.

Before this Electoral Tribunal, composed pursuant to the Constitution, by all the fifteen members of
the Supreme Court, is a matter of first impression. We are tasked not only to determine, as originally
prayed for, who between the Protestant and the Protestee was the true winner in the May 10, 2004
Presidential Elections, but also to decide now whether the Protestant’s widow (Mrs. Jesusa Sonora
Poe, popularly known as the cinema star Susan Roces) could intervene and/or substitute for the
deceased party, assuming arguendo that the protest could survive his death.

If one were guided by folk wisdom expressed in the adage that in a democracy, the voice of the
people is the voice of God, then it would appear our task had been made easy by fateful events.
Past midnight, in the early hours of June 24, 2004, the Congress as the representatives of the
sovereign people and acting as the National Board of Canvassers, in a near-unanimous roll-call
vote, proclaimed Mrs. Gloria Macapagal Arroyo (GMA) the duly elected President of the Philippines.
She obtained 12,905,808 votes, as against 11,782,232 votes for the second-placer, the movie actor
Fernando Poe, Jr. (FPJ).1 She took her Oath of Office before the Chief Justice of the Supreme Court
on June 30, 2004.

Refusing to concede defeat, the second-placer in the elections, Mr. FPJ, filed seasonably an election
protest before this Electoral Tribunal on July 23, 2004. Mrs. GMA, through counsel, filed her Answer
with Counter Protest on August 5, 2004. As counsels for the parties exchanged lively motions to
rush the presentation of their respective positions on the controversy, an act of God intervened. On
December 14, 2004, the Protestant died in the course of his medical treatment at St. Luke’s
Hospital. The medical certificate, filed by counsel as part of the Notice of Death of the Protestant,
showed that he died of cardio-pulmonary arrest, secondary to cerebral infarction.

However, neither the Protestee’s proclamation by Congress nor the death of her main rival as a
fortuitous intervening event, appears to abate the present controversy in the public arena. Instead,
notice may be taken of periodic mass actions, demonstrations, and rallies raising an outcry for this
Tribunal to decide the electoral protest of Mr. FPJ against Mrs. GMA once and for all. The oracular
function of this Tribunal, it would appear, needs to be fully exercised to make manifest here and
abroad who is the duly elected leader of the Filipino nation. All these, despite the fact that the
submissions by the parties on their respective sides in the protest and the counter-protest are thus
far, far from completed.

Needless to stress, this Tribunal cannot shirk its constitutional duty. Yet, neither could it go beyond
its mandate under the Constitution and the law. Further, this Tribunal is guided by its Rules, as well
as the Rules of Court in a suppletory manner. Considering the transcendental importance of the
electoral contest involving the Presidency, a rush to judgment is simply out of the question. Yet
decide the matter we must, without further delay, to prevent popular unrest and avoid further
destabilization of government at the highest level.

Together with the formal Notice of the Death of Protestant, his counsel has submitted to the
Tribunal, dated January 10, 2005, a "MANIFESTATION with URGENT PETITION/MOTION to
INTERVENE AS A SUBSTITUTE FOR DECEASED PROTESTANT FPJ," by the widow, Mrs.
Jesusa Sonora Poe, who signed the verification and certification therein.

As movant/intervenor, Mrs. FPJ claims that because of the untimely demise of her husband and in
representation not only of her deceased husband but more so because of the paramount interest of
the Filipino people, there is an urgent need for her to continue and substitute for her late husband in
the election protest initiated by him to ascertain the true and genuine will of the electorate in the
2004 elections. In support of her assertion, she cites De Castro v. Commission on
Elections,2 and Lomugdang v. Javier,3 to the effect that the death of the protestant does not
constitute a ground for the dismissal of the contest nor oust the trial court of the jurisdiction to decide
the election contest. She stresses nevertheless that even if the instant protest case succeeds, she is
cognizant that as a mere substitute she cannot succeed, assume or be entitled to said elective
office, and her utmost concern is not personal but one that involves the public’s interest. She prays,
however, that if subsequently determined that the protestee Gloria Macapagal-Arroyo did not get the
highest number of votes for president, for protestee to be disallowed from remaining in office, and
thus prevented from exercising the powers, duties, responsibilities and prerogatives reserved only to
the duly-elected president or her legitimate successor.

In her Comment, the Protestee, Mrs. GMA, relying on Vda. de De Mesa v. Mencias4 and subsequent
cases including analogous cases decided by the House of Representatives Electoral Tribunal
(HRET), asserts that the widow of a deceased candidate is not the proper party to replace the
deceased protestant since a public office is personal and not a property that passes on to the heirs.
She points out that the widow has no legal right to substitute for her husband in an election protest,
since no such right survives the husband, considering that the right to file an election protest is
personal and non-transmissible.

Protestee also contends Mrs. FPJ cannot substitute for her deceased husband because under the
Rules of the Presidential Electoral Tribunal, only the registered candidates who obtained the 2 nd and
3rd highest votes for the presidency may contest the election of the president and patently, Mrs. FPJ
did not receive the 2nd and 3rd highest votes for she was not even a candidate for the presidency in
the election that is being contested.

Citing pertinent PET Rules, protestee also stresses that this Tribunal has no jurisdiction over actions
of surviving spouses to ascertain the vote of the electorate as the Tribunal has jurisdiction only over
election protests and quo warranto cases.

According to protestee, movant/intervenor Mrs. FPJ cannot use "the public interest" to justify her
request to be substituted for her husband. "Public interest", i.e. the need to dispel uncertainty over
the real choice of the electorate, is applicable only in election contests, not in an action to merely
"ascertain the true and genuine will of the people." She asserts that the only case herein cognizable
by this Tribunal is an election protest involving a protestant and a protestee, not between the
electorate and the protestee. Citing analogous HRET cases, protestee avers that in a case where
the protestant, the primary adversary in an election protest case dies, the public interest in said
protest dies with him.
Protestee also contends that in the adversarial nature of a protest case where one of the parties
dies, a correct ruling cannot be had because the dead protestant could no longer refute his
adversary’s allegations because death has rendered him hors de combat.

Further citing Defensor-Santiago v. Ramos,5 protestee points out that this Tribunal, nonetheless,
confirmed its power to dismiss an electoral case on technical grounds. She adds that if the Tribunal
can do so on a technicality, all the more it could for a stronger reason, that of protestant’s death.

In her Reply, movant/intervenor argues that reference of protestee to the HRET case of Abadilla v.
Ablan,6 was erroneous inasmuch as said case was a congressional protest and the controlling case
is De Castro. She likewise contends that protestant failed to distinguish between a right to an office
which protestant concedes is personal and non-transmissible vis-à-vis the right to pursue the
process which is not personal but imbued with public interest. She likewise stresses that the death of
the protestant abolished the personal/private character of the protest, as protestant’s right to assume
if he prevails, necessarily disappears, and the same cannot be transferred to anyone else,
protestant’s widow included. She insists, however, that the public interest remains. Further,
movant/intervenor posits that the protest having been commenced cannot be abated by the death of
the protestant and the only real issue is the determination of the proper substitute. She avers that
the Tribunal’s rule is clear on who can commence and initiate a protest compared to the persons
who can initiate a quo warranto. She admits that in the former, only the second and third placers in
the presidential election are authorized to commence the contest, while in the latter, any voter may
initiate the petition. She contends that with no personal interest involved, any registered voter can
continue the duly-commenced protest as the real-party-in-interest which is analogous to a quo
warranto. She contradicts protestee and insists that allowing "any voter" to substitute just like in
a quo warranto will not open the floodgate to whimsical protests, and the imagined political instability
feared by protestee will even more be pronounced if the protest is dismissed. Movant/intervenor
reiterates that the issue at hand involves just the continuation of proceedings by allowing substitution
and the taking over by the substitute of the prosecution of the protest already "duly commenced."

Plainly, the issue here is: May the widow substitute/intervene for the protestant who died during the
pendency of the latter’s protest case?

The fundamental rule applicable in a presidential election protest is Rule 14 of the PET Rules. It
provides,

Rule 14. Election Protest.–Only the registered candidate for President or for Vice-President
of the Philippines who received the second or third highest number of votes may contest the
election of the President or the Vice-President, as the case may be, by filing a verified
petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner.

Pursuant to this rule, only two persons, the 2nd and 3rd placers, may contest the election. By this
express enumeration, the rule makers have in effect determined the real parties in interest
concerning an on-going election contest. It envisioned a scenario where, if the declared winner had
not been truly voted upon by the electorate, the candidate who received that 2 nd or the 3rd highest
number of votes would be the legitimate beneficiary in a successful election contest.

This Tribunal, however, does not have any rule on substitution nor intervention but it does allow for
the analogous and suppletory application of the Rules of Court, decisions of the Supreme Court, and
the decisions of the electoral tribunals. 7
Rule 3, Section 16 is the rule on substitution in the Rules of Court. 8 This rule allows substitution by a
legal representative. It can be gleaned from the citation of this rule that movant/intervenor seeks to
appear before this Tribunal as the legal representative/substitute of the late protestant prescribed by
said Section 16. However, in our application of this rule to an election contest, we have every time
ruled that a public office is personal to the public officer and not a property transmissible to the heirs
upon death.9 Thus, we consistently rejected substitution by the widow or the heirs in election
contests where the protestant dies during the pendency of the protest. In Vda. de De Mesa v.
Mencias,10 we recognized substitution upon the death of the protestee but denied substitution by the
widow or heirs since they are not the real parties in interest. Similarly, in the later case of De la
Victoria v. Commission on Elections,11 we struck down the claim of the surviving spouse and children
of the protestee to the contested office for the same reason. Even in analogous cases before other
electoral tribunals,12 involving substitution by the widow of a deceased protestant, in cases where the
widow is not a real party in interest, we denied substitution by the wife or heirs.

This is not to say that death of the protestant necessarily abates the pending action. We have held
as early as Vda. de De Mesa (1966) that while the right to a public office is personal and exclusive to
the public officer, an election protest is not purely personal and exclusive to the protestant or to the
protestee such that the death of either would oust the court of all authority to continue the protest
proceedings.13 Hence, we have allowed substitution and intervention but only by a real party in
interest. A real party in interest is the party who would be benefited or injured by the judgment, and
the party who is entitled to the avails of the suit. 14 In Vda. de De Mesa v. Mencias15 and Lomugdang
v. Javier,16 we permitted substitution by the vice-mayor since the vice-mayor is a real party in interest
considering that if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to
the office of the mayor that becomes vacant if the one duly elected cannot assume office. In
contrast, herein movant/intervenor, Mrs. FPJ, herself denies any claim to the august office of
President. Thus, given the circumstances of this case, we can conclude that protestant’s widow is
not a real party in interest to this election protest.

We are not unaware that a contest before election tribunals has two aspects. First, it is in pursuit of
one’s right to a public office, and second, it is imbued with public interest.

Indeed the personal aspect of the case is inextricably linked with the public interest. For an election
protest involves not merely conflicting private aspirations but is imbued with public interest which
raises it into a plane over and above ordinary civil actions. 17 But herein movant/intervenor, Mrs. FPJ,
has overly stressed that it is with the "paramount public interest" in mind that she desires "to pursue
the process" commenced by her late husband. She avers that she is "pursuing the process" to
determine who truly won the election, as a service to the Filipino people. We laud her noble intention
and her interest to find out the true will of the electorate. However, nobility of intention is not the point
of reference in determining whether a person may intervene in an election protest. Rule 19, Section
1 of the Rules of Court18 is the applicable rule on intervention in the absence of such a rule in the
PET Rules. In such intervention, the interest which allows a person to intervene in a suit must be in
the matter of litigation and of such direct and immediate character that the intervenor will either gain
or lose by the effect of the judgment. In this protest, Mrs. FPJ will not immediately and directly
benefit from the outcome should it be determined that the declared president did not truly get the
highest number of votes. We fully appreciate counsel’s manifestation that movant/intervenor herself
claims she has no interest in assuming the position as she is aware that she cannot succeed to the
presidency, having no legal right to it. Yet thus far, in this case, no real parties such as the vice-
presidential aspirants in the 2004 elections, have come forward to intervene, or to be substituted for
the deceased protestant. In our view, if persons not real parties in the action could be allowed to
intervene, proceedings will be unnecessarily complicated, expensive and interminable – and this is
not the policy of the law.19 It is far more prudent to abide by the existing strict limitations on
intervention and substitution under the law and the rules.
Conformably then with the law, the rules and prevailing jurisprudence, this Tribunal finds no
justifiable reason to grant the petition/motion for intervention and substitution.

WHEREFORE, the motion of movant/intervenor JESUSA SONORA POE a.k.a. SUSAN ROCES to
intervene and substitute for the deceased protestant is DENIED for lack of merit.

Acting on the protest and considering the Notice of the Death, submitted by counsel of protestant
RONALD ALLAN POE, a.k.a. FERNANDO POE, JR., we also resolve that Presidential Electoral
Tribunal Case No. 002, entitled Ronald Allan Poe a.k.a. Fernando Poe, Jr. v. Gloria Macapagal-
Arroyo, should be as it is hereby DISMISSED on the ground that no real party in interest has come
forward within the period allowed by law, to intervene in this case or be substituted for the deceased
protestant.

No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-

Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia,
JJ., concur.

Footnotes

1 Resolution of Both Houses No. 01, 12th Cong., Joint Public Session (2004).

2 G.R. No. 125249, 7 February 1997, 267 SCRA 806.

3 No. L-27535, 30 September 1967, 21 SCRA 402.

4 No. L-24583, 29 October 1966, 18 SCRA 533.

5 P.E.T. Case No. 001, 13 February 1996, 253 SCRA 559.

6 HRET Case No. 95-005, 11 September 1996, 9 HRET Reports 102.

7Rule 69. Applicability.–The following shall be applicable by analogy or in suppletory

character and effect in so far as they may be applicable and are not inconsistent with these
Rules and with the orders, resolutions and decisions of the Tribunal, namely: 1) The Rules of
Court; 2) Decisions of the Supreme Court; 3) Decisions of the Electoral Tribunals.

8 SEC. 16. Death of party; duty of counsel.–Whenever a party to a pending action dies, and
the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court
within thirty (30) days after such death of the fact thereof, and to give the name and address
of his legal representative or representatives. Failure of counsel to comply with this duty shall
be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.

If no legal representative is named by the counsel for the deceased party or if the one so
named shall fail to appear within the specified period, the court may order the opposing
party, within a specified time, to procure the appointment of an executor or administrator for
the estate of the deceased and the latter shall immediately appear for and on behalf of the
deceased. The court charges in procuring such appointment, if defrayed by the opposing
party, may be recovered as costs.

9De Castro v. Commission on Elections, G.R. No. 125249, 7 February 1997, 267 SCRA 806,
809.

10 No. L-24583, 29 October 1966, 18 SCRA 533, 545.

11 G.R. Nos. 95275-76, 23 July 1991, 199 SCRA 561, 565-566.

12Abadilla v. Ablan, HRET Case No. 95-005, 11 September 1996, 9 HRET Reports 102;
Alberto v. Tapia, HRET Case No. 37, 23 January 1989, 1 HRET Reports 52.

13 De Castro v. Commission on Elections, supra at 809.

14 Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng Mga Manggagawang Pilipino,

Inc., G.R. Nos. 160261-63 & 160277, 10 November 2003, 415 SCRA 44, 135
citing Kilosbayan Incorporated v. Morato, G.R. No. 118910, 17 July 1995, 246 SCRA 540,
563.

15 No. L-24583, 29 October 1966, 18 SCRA 545.

16 No. L-27535, 30 September 1967, 21 SCRA 402, 407.

17 Vda. de De Mesa v. Mencias, supra at 538.

18 SECTION 1. Who may intervene.–A person who has a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof may, with leave of court, be allowed to intervene
in the action. The court shall consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties, and whether or not the
intervenor’s rights may be fully protected in a separate proceeding.

19Magsaysay-Labrador v. Court of Appeals, G.R. No. 58168, 19 December 1989, 180 SCRA
266, 271.
 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 Peña 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 in Peña 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 the First 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 ascertained 8 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) Bacolod-
Kalawi; (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 are sub 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 Cariño 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 3318 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.21 Protestee 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 61 22 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 Vice-
President 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-à-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 Congress-
retrieved 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 the First 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 of Moraleja, 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 Defensor-
Santiago'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 Congress-
retrieved 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 Congress-
retrieved 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.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 191618 November 23, 2010

ATTY. ROMULO B. MACALINTAL, Petitioner,

vs.
PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.

DECISION

NACHURA, J.:

Confronting us is an undesignated petition1 filed by Atty. Romulo B. Macalintal (Atty. Macalintal), that
questions the constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized
progeny of Section 4,2 Article VII of the Constitution:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.

While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for the
purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by a budget
allocation, a seal, a set of personnel and confidential employees, to effect the constitutional
mandate. Petitioner’s averment is supposedly supported by the provisions of the 2005 Rules of the
Presidential Electoral Tribunal (2005 PET Rules), 3 specifically:

(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the
Associate Justices are designated as "Chairman and Members," respectively;

(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and
confidential employees of every member thereof;

(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the
appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the PET,
may designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and

(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court seal.

Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional provision
does allow the "appointment of additional personnel."

Further, petitioner highlights our decision in Buac v. COMELEC 4 which peripherally declared that
"contests involving the President and the Vice-President fall within the exclusive original jurisdiction
of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner reiterates that the
constitution of the PET, with the designation of the Members of the Court as Chairman and Members
thereof, contravenes Section 12, Article VIII of the Constitution, which prohibits the designation of
Members of the Supreme Court and of other courts established by law to any agency performing
quasi-judicial or administrative functions.

The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed a
Comment5thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal is
unspecified and without statutory basis; "the liberal approach in its preparation x x x is a violation of
the well known rules of practice and pleading in this jurisdiction."

In all, the OSG crystallizes the following issues for resolution of the Court:

WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.

II

WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS

UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF ARTICLE
VII OF THE 1987 CONSTITUTION.

III

WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS MEMBERS

OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A
VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987 CONSTITUTION. 6

In his Reply,7 petitioner maintains that:

1. He has legal standing to file the petition given his averment of transcendental importance
of the issues raised therein;

2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section 4,
Article VII of the Constitution; and

3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to Section
12, Article VIII of the Constitution.

We winnow the meanderings of petitioner into the singular issue of whether the constitution of the
PET, composed of the Members of this Court, is unconstitutional, and violates Section 4, Article VII
and Section 12, Article VIII of the Constitution.

But first, we dispose of the procedural issue of whether petitioner has standing to file the present
petition.

The issue of locus standi is derived from the following requisites of a judicial inquiry:

1. There must be an actual case or controversy;

2. The question of constitutionality must be raised by the proper party;

 3. The constitutional question must be raised at the earliest possible opportunity; and

4. The decision of the constitutional question must be necessary to the determination of the
case itself.8

On more than one occasion we have characterized a proper party as one who has sustained or is in
immediate danger of sustaining an injury as a result of the act complained of.9 The dust has long
settled on the test laid down in Baker v. Carr: 10 "whether the party has alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
questions."11 Until and unless such actual or threatened injury is established, the complainant is not
clothed with legal personality to raise the constitutional question.

Our pronouncements in David v. Macapagal-Arroyo12 illuminate:

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing
as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a" citizen" or "taxpayer."

xxxx

However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United States Supreme Court laid down the more stringent "direct injury" test in
Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private
individual to invoke the judicial power to determine the validity of an executive or legislative action,
he must show that he has sustained a direct injury as a result of that action, and it is not sufficient
that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person
who impugns the validity of a statute must have "a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers’
Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the
Philippines v. Felix.

However, being a mere procedural technicality, the requirement of locus standi may be waived by
the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases,
Araneta v. Dinglasan, where the "transcendental importance" of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court resolved
to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding
its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a
chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the constitutionality or validity of
laws, regulations and rulings.

xxxx
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:

(1) cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in
question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.

Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a generalized
interest in the outcome of this case, and succeeds only in muddling the issues. Paragraph 2 of the
petition reads:

2. x x x Since the creation and continued operation of the PET involves the use of public funds and
the issue raised herein is of transcendental importance, it is petitioner’s humble submission that, as
a citizen, a taxpayer and a member of the BAR, he has the legal standing to file this petition.

But even if his submission is valid, petitioner’s standing is still imperiled by the white elephant in the
petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo (Macapagal-
Arroyo) in the election protest filed by 2004 presidential candidate Fernando Poe, Jr. before the
Presidential Electoral Tribunal,13 because judicial inquiry, as mentioned above, requires that the
constitutional question be raised at the earliest possible opportunity. 14Such appearance as counsel
before the Tribunal, to our mind, would have been the first opportunity to challenge the
constitutionality of the Tribunal’s constitution.

Although there are recognized exceptions to this requisite, we find none in this instance. Petitioner is
unmistakably estopped from assailing the jurisdiction of the PET before which tribunal he had
ubiquitously appeared and had acknowledged its jurisdiction in 2004. His failure to raise a
seasonable constitutional challenge at that time, coupled with his unconditional acceptance of the
Tribunal’s authority over the case he was defending, translates to the clear absence of an
indispensable requisite for the proper invocation of this Court’s power of judicial review. Even on this
score alone, the petition ought to be dismissed outright.

Prior to petitioner’s appearance as counsel for then protestee Macapagal-Arroyo, we had occasion
to affirm the grant of original jurisdiction to this Court as a Presidential Electoral Tribunal in the
auspicious case of Tecson v. Commission on Elections. 15 Thus -

Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the provisions
of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the
COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead
take on the petitions they directly instituted before it. The Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try,
Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-
Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793
designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of
the tribunal. Although the subsequent adoption of the parliamentary form of government under the
1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up,
nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.

Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:

The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and Valdez
petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution which provides:

"The Supreme Court, sitting en banc shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice President and may promulgate its rules for the
purpose."

The word "contest" in the provision means that the jurisdiction of this Court can only be invoked after
the election and proclamation of a President or Vice President. There can be no "contest" before a
winner is proclaimed.16

Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:

G.R. Nos. 161434 and 161634 invoke the Court’s exclusive jurisdiction under the last paragraph of
Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion that these petitions
should be dismissed outright for prematurity. The Court has no jurisdiction at this point of time to
entertain said petitions.

The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET)
and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each specifically
and exclusively clothed with jurisdiction by the Constitution to act respectively as "sole judge of all
contests relating to the election, returns, and qualifications" of the President and Vice-President,
Senators, and Representatives. In a litany of cases, this Court has long recognized that these
electoral tribunals exercise jurisdiction over election contests only after a candidate has already
been proclaimed winner in an election. Rules 14 and 15 of the Rules of the Presidential Electoral
Tribunal provide that, for President or Vice-President, election protest or quo warranto may be
filed after the proclamation of the winner.17

Petitioner, a prominent election lawyer who has filed several cases before this Court involving
constitutional and election law issues, including, among others, the constitutionality of certain
provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003), 18 cannot
claim ignorance of: (1) the invocation of our jurisdiction under Section 4, Article VII of the
Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching framework
affirmed in Tecson v. Commission on Elections 19 is that the Supreme Court has original jurisdiction
to decide presidential and vice-presidential election protests while concurrently acting as an
independent Electoral Tribunal.

Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does
not authorize the constitution of the PET. And although he concedes that the Supreme Court may
promulgate its rules for this purpose, petitioner is insistent that the constitution of the PET is
unconstitutional. However, petitioner avers that it allows the Court to appoint additional personnel for
the purpose, notwithstanding the silence of the constitutional provision.

Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at least one might possibly
stick. But these arguments fail to elucidate on the scope of the rules the Supreme Court is allowed to
promulgate. Apparently, petitioner’s concept of this adjunct of judicial power is very restrictive.
Fortunately, thanks in no part to petitioner’s opinion, we are guided by well-settled principles of
constitutional construction.

Verba legis dictates that wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. This Court, speaking through former Chief Justice Enrique Fernando, in
J.M. Tuason & Co., Inc. v. Land Tenure Administration20 instructs:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to
obtain that it should ever be present in the people’s consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what they say. Thus these are
cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding the
framing of the Constitution.21 In following this guideline, courts should bear in mind the object sought
to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be
prevented or remedied.22 Consequently, the intent of the framers and the people ratifying the
constitution, and not the panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned thus
in the landmark case of Civil Liberties Union v. Executive Secretary: 23

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

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

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words idle
and nugatory.
We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24 to wit:

[T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect others.
When they adopted subsection 2, they permitted, if not willed, that said provision should function to
the full extent of its substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document.

On its face, the contentious constitutional provision does not specify the establishment of the PET.
But neither does it preclude, much less prohibit, otherwise. It entertains divergent interpretations
which, though unacceptable to petitioner, do not include his restrictive view – one which really does
not offer a solution.

Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with other
related provisions of the Constitution such as the parallel provisions on the Electoral Tribunals of the
Senate and the House of Representatives.

Before we resort to the records of the Constitutional Commission, we discuss the framework of
judicial power mapped out in the Constitution. Contrary to petitioner’s assertion, the Supreme
Court’s constitutional mandate to act as sole judge of election contests involving our country’s
highest public officials, and its rule-making authority in connection therewith, is not restricted; it
includes all necessary powers implicit in the exercise thereof.

We recall the unprecedented and trailblazing case of Marcos v. Manglapus: 25

The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission, "the
Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the government." Thus, the 1987 Constitution explicitly
provides that "[t]he legislative power shall be vested in the Congress of the Philippines" [Art. VI, Sec.
1], "[t]he executive power shall be vested in the President of the Philippines" [Art. VII, Sec. 1], and
"[t]he judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law" [Art. VIII, Sec. 1]. These provisions not only establish a separation of powers by
actual division but also confer plenary legislative, executive and judicial powers subject only to
limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis pointed
out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the government."

The Court could not have been more explicit then on the plenary grant and exercise of judicial
power. Plainly, the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from
the unequivocal grant of jurisdiction in the last paragraph of Section 4, Article VII of the Constitution
is sound and tenable.

The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive
branch of government, and the constitution of the PET, is evident in the discussions of the
Constitutional Commission. On the exercise of this Court’s judicial power as sole judge of
presidential and vice-presidential election contests, and to promulgate its rules for this purpose, we
find the proceedings in the Constitutional Commission most instructive:

MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY
PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en banc.
This is also to confer on the Supreme Court exclusive authority to enact the necessary rules while
acting as sole judge of all contests relating to the election, returns and qualifications of the President
or Vice-President.

MR. REGALADO. My personal position is that the rule-making power of the Supreme Court with
respect to its internal procedure is already implicit under the Article on the Judiciary; considering,
however, that according to the Commissioner, the purpose of this is to indicate the sole power of the
Supreme Court without intervention by the legislature in the promulgation of its rules on this
particular point, I think I will personally recommend its acceptance to the Committee. 26

xxxx

MR. NOLLEDO. x x x.

With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created an
Electoral Tribunal in the Senate and a Commission on Appointments which may cover membership
from both Houses. But my question is: It seems to me that the committee report does not indicate
which body should promulgate the rules that shall govern the Electoral Tribunal and the Commission
on Appointments. Who shall then promulgate the rules of these bodies?

MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a body
distinct and independent already from the House, and so with the Commission on Appointments
also. It will have the authority to promulgate its own rules.27

On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to
former Chief Justice Roberto Concepcion:

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare
who will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the
time of the Supreme Court sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam President. 28

Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice
Florenz D. Regalado29 and Fr. Joaquin Bernas30 both opined:

MR. VILLACORTA. Thank you very much, Madam President.

I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth
paragraph of Section 4 provides:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.

May I seek clarification as to whether or not the matter of determining the outcome of the contests
relating to the election returns and qualifications of the President or Vice-President is purely a
political matter and, therefore, should not be left entirely to the judiciary. Will the above-quoted
provision not impinge on the doctrine of separation of powers between the executive and the judicial
departments of the government?

MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision
incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution.

MR. VILLACORTA. That is right.

MR. REGALADO. We feel that it will not be an intrusion into the separation of powers guaranteed to
the judiciary because this is strictly an adversarial and judicial proceeding.

MR. VILLACORTA. May I know the rationale of the Committee because this supersedes Republic
Act 7950 which provides for the Presidential Electoral Tribunal?

FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial. Therefore,
they are cognizable only by courts. If, for instance, we did not have a constitutional provision on an
electoral tribunal for the Senate or an electoral tribunal for the House, normally, as composed, that
cannot be given jurisdiction over contests.

So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember that
in that election, Lopez was declared winner. He filed a protest before the Supreme Court because
there was a republic act which created the Supreme Court as the Presidential Electoral Tribunal.
The question in this case was whether new powers could be given the Supreme Court by law. In
effect, the conflict was actually whether there was an attempt to create two Supreme Courts and the
answer of the Supreme Court was: "No, this did not involve the creation of two Supreme Courts, but
precisely we are giving new jurisdiction to the Supreme Court, as it is allowed by the Constitution.
Congress may allocate various jurisdictions."

Before the passage of that republic act, in case there was any contest between two presidential
candidates or two vice-presidential candidates, no one had jurisdiction over it. So, it became
necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what
was statutory but it is not an infringement on the separation of powers because the power being
given to the Supreme Court is a judicial power. 31

Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-
presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not
as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who
proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to
promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented and
then emphasized that the sole power ought to be without intervention by the legislative department.
Evidently, even the legislature cannot limit the judicial power to resolve presidential and vice-
presidential election contests and our rule-making power connected thereto.

To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply
constitutionalized what was statutory before the 1987 Constitution. The experiential context of the
PET in our country cannot be denied.32
Consequently, we find it imperative to trace the historical antecedents of the PET.

Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of the
present Constitution did not contain similar provisions and instead vested upon the legislature all
phases of presidential and vice-presidential elections – from the canvassing of election returns, to
the proclamation of the president-elect and the vice-president elect, and even the determination, by
ordinary legislation, of whether such proclamations may be contested. Unless the legislature
enacted a law creating an institution that would hear election contests in the Presidential and Vice-
Presidential race, a defeated candidate had no legal right to demand a recount of the votes cast for
the office involved or to challenge the ineligibility of the proclaimed candidate. Effectively,
presidential and vice-presidential contests were non-justiciable in the then prevailing milieu.

The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence of a
similar provision in its pattern, the Federal Constitution of the United States. Rather, the creation of
such tribunal was left to the determination of the National Assembly. The journal of the 1935
Constitutional Convention is crystal clear on this point:

Delegate Saguin. – For an information. It seems that this Constitution does not contain any provision
with respect to the entity or body which will look into the protests for the positions of the President
and Vice-President.

President Recto. – Neither does the American constitution contain a provision over the subject.

Delegate Saguin. – But then, who will decide these protests?

President Recto. – I suppose that the National Assembly will decide on that. 33

To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793, establishing
an independent PET to try, hear, and decide protests contesting the election of President and Vice-
President. The Chief Justice and the Associate Justices of the Supreme Court were tasked to sit as
its Chairman and Members, respectively. Its composition was extended to retired Supreme Court
Justices and incumbent Court of Appeals Justices who may be appointed as substitutes for ill,
absent, or temporarily incapacitated regular members.

The eleven-member tribunal was empowered to promulgate rules for the conduct of its proceedings.
It was mandated to sit en banc in deciding presidential and vice-presidential contests and authorized
to exercise powers similar to those conferred upon courts of justice, including the issuance of
subpoena, taking of depositions, arrest of witnesses to compel their appearance, production of
documents and other evidence, and the power to punish contemptuous acts and bearings. The
tribunal was assigned a Clerk, subordinate officers, and employees necessary for the efficient
performance of its functions.

R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which replaced the
bicameral legislature under the 1935 Constitution with the unicameral body of a parliamentary
government.

With the 1973 Constitution, a PET was rendered irrelevant, considering that the President was not
directly chosen by the people but elected from among the members of the National Assembly, while
the position of Vice-President was constitutionally non-existent.
In 1981, several modifications were introduced to the parliamentary system. Executive power was
restored to the President who was elected directly by the people. An Executive Committee was
formed to assist the President in the performance of his functions and duties. Eventually, the
Executive Committee was abolished and the Office of Vice-President was installed anew.

These changes prompted the National Assembly to revive the PET by enacting, on December 3,
1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an Independent
Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the Office of the
President and Vice-President of the Philippines, Appropriating Funds Therefor and For Other
Purposes." This tribunal was composed of nine members, three of whom were the Chief Justice of
the Supreme Court and two Associate Justices designated by him, while the six were divided equally
between representatives of the majority and minority parties in the Batasang Pambansa.

Aside from the license to wield powers akin to those of a court of justice, the PET was permitted to
recommend the prosecution of persons, whether public officers or private individuals, who in its
opinion had participated in any irregularity connected with the canvassing and/or accomplishing of
election returns.

The independence of the tribunal was highlighted by a provision allocating a specific budget from the
national treasury or Special Activities Fund for its operational expenses. It was empowered to
appoint its own clerk in accordance with its rules. However, the subordinate officers were strictly
employees of the judiciary or other officers of the government who were merely designated to the
tribunal.

After the historic People Power Revolution that ended the martial law era and installed Corazon
Aquino as President, civil liberties were restored and a new constitution was formed.

With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then
statutory PET into a constitutional institution, albeit without its traditional nomenclature:

FR. BERNAS. x x x.

x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done is to

constitutionalize what was statutory but it is not an infringement on the separation of powers
because the power being given to the Supreme Court is a judicial power. 34

Clearly, petitioner’s bete noire of the PET and the exercise of its power are unwarranted. His
arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman" and
"Members," respectively; (2) the PET uses a different seal; (3) the Chairman is authorized to appoint
personnel; and (4) additional compensation is allocated to the "Members," in order to bolster his
claim of infirmity in the establishment of the PET, are too superficial to merit further attention by the
Court.

Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4,
Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc. The
following exchange in the 1986 Constitutional Commission should provide enlightenment:

MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I quote:

The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.
Are we not giving enormous work to the Supreme Court especially when it is directed to sit en banc
as the sole judge of all presidential and vice-presidential election contests?

MR. SUMULONG. That question will be referred to Commissioner Concepcion.

MR. CONCEPCION. This function was discharged by the Supreme Court twice and the Supreme
Court was able to dispose of each case in a period of one year as provided by law. Of course, that
was probably during the late 1960s and early 1970s. I do not know how the present Supreme Court
would react to such circumstances, but there is also the question of who else would hear the election
protests.

MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules
provided for the hearings and there is not time limit or duration for the election contest to be decided
by the Supreme Court. Also, we will have to consider the historical background that when R.A. 1793,
which organized the Presidential Electoral Tribunal, was promulgated on June 21, 1957, at least
three famous election contests were presented and two of them ended up in withdrawal by the
protestants out of sheer frustration because of the delay in the resolution of the cases. I am referring
to the electoral protest that was lodged by former President Carlos P. Garcia against our "kabalen"
former President Diosdado Macapagal in 1961 and the vice-presidential election contest filed by the
late Senator Gerardo Roxas against Vice-President Fernando Lopez in 1965.

MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that protest of
Senator Roxas was withdrawn, the results were already available. Senator Roxas did not want to
have a decision adverse to him. The votes were being counted already, and he did not get what he
expected so rather than have a decision adverse to his protest, he withdrew the case.

xxxx

MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the Supreme
Court this matter of resolving presidential and vice-presidential contests?

MR. CONCEPCION. Personally, I would not have any objection.

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare
who will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the
time of the Supreme Court sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam President.
MR. CONCEPCION. The time consumed or to be consumed in this contest for President is
dependent upon they key number of teams of revisors. I have no experience insofar as contests in
other offices are concerned.

MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit en
banc?

MR. CONCEPCION. Yes.

MR. SUAREZ. I see.

MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened before
teams of three, generally, a representative each of the court, of the protestant and of the "protestee."
It is all a questions of how many teams are organized. Of course, that can be expensive, but it would
be expensive whatever court one would choose. There were times that the Supreme Court, with
sometimes 50 teams at the same time working, would classify the objections, the kind of problems,
and the court would only go over the objected votes on which the parties could not agree. So it is not
as awesome as it would appear insofar as the Court is concerned. What is awesome is the cost of
the revision of the ballots because each party would have to appoint one representative for every
team, and that may take quite a big amount.

MR. SUAREZ. If we draw from the Commissioner’s experience which he is sharing with us, what
would be the reasonable period for the election contest to be decided?

MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always
manages to dispose of the case in one year.

MR. SUAREZ. In one year. Thank you for the clarification. 35

Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET,
to undertake the Herculean task of deciding election protests involving presidential and vice-
presidential candidates in accordance with the process outlined by former Chief Justice Roberto
Concepcion. It was made in response to the concern aired by delegate Jose E. Suarez that the
additional duty may prove too burdensome for the Supreme Court. This explicit grant of
independence and of the plenary powers needed to discharge this burden justifies the budget
allocation of the PET.

The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an
"awesome" task, includes the means necessary to carry it into effect under the doctrine of necessary
implication.36 We cannot overemphasize that the abstraction of the PET from the explicit grant of
power to the Supreme Court, given our abundant experience, is not unwarranted.

A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the
Supreme Court sitting en banc. In the same vein, although the method by which the Supreme Court
exercises this authority is not specified in the provision, the grant of power does not contain any
limitation on the Supreme Court’s exercise thereof. The Supreme Court’s method of deciding
presidential and vice-presidential election contests, through the PET, is actually a derivative of the
exercise of the prerogative conferred by the aforequoted constitutional provision. Thus, the
subsequent directive in the provision for the Supreme Court to "promulgate its rules for the purpose."
The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority
conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the
Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal
(HRET),37 which we have affirmed on numerous occasions. 38

Particularly cogent are the discussions of the Constitutional Commission on the parallel provisions of
the SET and the HRET. The discussions point to the inevitable conclusion that the different electoral
tribunals, with the Supreme Court functioning as the PET, are constitutional bodies, independent of
the three departments of government – Executive, Legislative, and Judiciary – but not separate
therefrom.

MR. MAAMBONG. x x x.

My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal,
either of the House or of the Senate, is it correct to say that these tribunals are constitutional
creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which
are created by mandate of the Constitution but they are not constitutional creations. Is that a good
distinction?

xxxx

MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House
Electoral Tribunal is a constitutional body?

MR. AZCUNA. It is, Madam President.

MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?

MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.

MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77 Phil.
192, will still be applicable to the present bodies we are creating since it ruled that the electoral
tribunals are not separate departments of the government. Would that ruling still be valid?

MR. AZCUNA. Yes, they are not separate departments because the separate departments are the
legislative, the executive and the judiciary; but they are constitutional bodies. 39

The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by our
holding in Lopez v. Roxas, et al.:42

Section 1 of Republic Act No. 1793, which provides that:

"There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole judge of
all contests relating to the election, returns, and qualifications of the president-elect and the vice-
president-elect of the Philippines."

has the effect of giving said defeated candidate the legal right to contest judicially the election of the
President-elect of Vice-President-elect and to demand a recount of the votes case for the office
involved in the litigation, as well as to secure a judgment declaring that he is the one elected
president or vice-president, as the case may be, and that, as such, he is entitled to assume the
duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal "shall
be composed of the Chief Justice and the other ten Members of the Supreme Court," said legislation
has conferred upon such Court an additional original jurisdiction of an exclusive character.

Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the
Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment may be
likened to the fact that courts of first instance perform the functions of such ordinary courts of first
instance, those of court of land registration, those of probate courts, and those of courts of juvenile
and domestic relations. It is, also, comparable to the situation obtaining when the municipal court of
a provincial capital exercises its authority, pursuant to law, over a limited number of cases which
were previously within the exclusive jurisdiction of courts of first instance.

In all of these instances, the court (court of first instance or municipal court) is only one, although the
functions may be distinct and, even, separate. Thus the powers of a court of first instance, in the
exercise of its jurisdiction over ordinary civil cases, are broader than, as well as distinct and separate
from, those of the same court acting as a court of land registration or a probate court, or as a court of
juvenile and domestic relations. So too, the authority of the municipal court of a provincial capital,
when acting as such municipal court, is, territorially more limited than that of the same court when
hearing the aforementioned cases which are primary within the jurisdiction of courts of first instance.
In other words, there is only one court, although it may perform the functions pertaining to several
types of courts, each having some characteristics different from those of the others.

Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with original
jurisdiction, as well as with appellate jurisdiction, in consequence of which they are both trial courts
and, appellate courts, without detracting from the fact that there is only one Supreme Court, one
Court of Appeals, and one court of first instance, clothed with authority to discharge said dual
functions. A court of first instance, when performing the functions of a probate court or a court of
land registration, or a court of juvenile and domestic relations, although with powers less broad than
those of a court of first instance, hearing ordinary actions, is not inferior to the latter, for one cannot
be inferior to itself. So too, the Presidential Electoral Tribunal is not inferior to the Supreme Court,
since it is the same Court although the functions peculiar to said Tribunal are more limited in scope
than those of the Supreme Court in the exercise of its ordinary functions. Hence, the enactment of
Republic Act No. 1793, does not entail an assumption by Congress of the power of appointment
vested by the Constitution in the President. It merely connotes the imposition of additional duties
upon the Members of the Supreme Court.

By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it
has functions peculiar only to the Tribunal. It is obvious that the PET was constituted in
implementation of Section 4, Article VII of the Constitution, and it faithfully complies – not unlawfully
defies – the constitutional directive. The adoption of a separate seal, as well as the change in the
nomenclature of the Chief Justice and the Associate Justices into Chairman and Members of the
Tribunal, respectively, was designed simply to highlight the singularity and exclusivity of the
Tribunal’s functions as a special electoral court.

As regards petitioner’s claim that the PET exercises quasi-judicial functions in contravention of
Section 12, Article VIII of the Constitution, we point out that the issue in Buac v.
COMELEC43 involved the characterization of the enforcement and administration of a law relative to
the conduct of a plebiscite which falls under the jurisdiction of the Commission on Elections.
However, petitioner latches on to the enumeration in Buac which declared, in an obiter, that
"contests involving the President and the Vice-President fall within the exclusive original jurisdiction
of the PET, also in the exercise of quasi-judicial power."
The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the Constitution
reads:

SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which
provides that the power "shall be vested in one Supreme Court and in such lower courts as may be
established by law." Consistent with our presidential system of government, the function of "dealing
with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that
are legally demandable and enforceable" 44 is apportioned to courts of justice. With the advent of the
1987 Constitution, judicial power was expanded to include "the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." 45 The power was
expanded, but it remained absolute.

The set up embodied in the Constitution and statutes characterizes the resolution of electoral
contests as essentially an exercise of judicial power. 1avvphi1

At the barangay and municipal levels, original and exclusive jurisdiction over election contests is
vested in the municipal or metropolitan trial courts and the regional trial courts, respectively.

At the higher levels – city, provincial, and regional, as well as congressional and senatorial –
exclusive and original jurisdiction is lodged in the COMELEC and in the House of Representatives
and Senate Electoral Tribunals, which are not, strictly and literally speaking, courts of law. Although
not courts of law, they are, nonetheless, empowered to resolve election contests which involve, in
essence, an exercise of judicial power, because of the explicit constitutional empowerment found in
Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House
Electoral Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and the SET
decide election contests, their decisions are still subject to judicial review – via a petition for certiorari
filed by the proper party – if there is a showing that the decision was rendered with grave abuse of
discretion tantamount to lack or excess of jurisdiction. 46

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-
presidential election contest, it performs what is essentially a judicial power. In the landmark case of
Angara v. Electoral Commission,47Justice Jose P. Laurel enucleated that "it would be inconceivable if
the Constitution had not provided for a mechanism by which to direct the course of government
along constitutional channels." In fact, Angara pointed out that "[t]he Constitution is a definition of the
powers of government." And yet, at that time, the 1935 Constitution did not contain the expanded
definition of judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in
conjunction with latter’s exercise of judicial power inherent in all courts, 48 the task of deciding
presidential and vice-presidential election contests, with full authority in the exercise thereof. The
power wielded by PET is a derivative of the plenary judicial power allocated to courts of law,
expressly provided in the Constitution. On the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the Supreme Court.

If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House
Electoral Tribunals would violate the constitutional proscription found in Section 12, Article VIII.
Surely, the petitioner will be among the first to acknowledge that this is not so. The Constitution
which, in Section 17, Article VI, explicitly provides that three Supreme Court Justices shall sit in the
Senate and House Electoral Tribunals, respectively, effectively exempts the Justices-Members
thereof from the prohibition in Section 12, Article VIII. In the same vein, it is the Constitution itself, in
Section 4, Article VII, which exempts the Members of the Court, constituting the PET, from the same
prohibition.

We have previously declared that the PET is not simply an agency to which Members of the Court
were designated. Once again, the PET, as intended by the framers of the Constitution, is to be an
institution independent, but not separate, from the judicial department, i.e., the Supreme Court.
McCulloch v. State of Maryland49 proclaimed that "[a] power without the means to use it, is a nullity."
The vehicle for the exercise of this power, as intended by the Constitution and specifically mentioned
by the Constitutional Commissioners during the discussions on the grant of power to this Court, is
the PET. Thus, a microscopic view, like the petitioner’s, should not constrict an absolute and
constitutional grant of judicial power.

One final note. Although this Court has no control over contrary people and naysayers, we reiterate
a word of caution against the filing of baseless petitions which only clog the Court’s docket. The
petition in the instant case belongs to that classification.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L.

MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila,
Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C.
VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,

vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court,
at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES,
SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE
PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner,

vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOÑEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF
MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos.
82827 and 83979.

RESOLUTION

PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were
denied due process when informations for libel were filed against them although the finding of the
existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently,
by the President; (2) whether or not the constitutional rights of Beltran were violated when
respondent RTC judge issued a warrant for his arrest without personally examining the complainant
and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the
Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through
the filing of a complaint-affidavit.

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the
Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the
Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against
petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the
Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration
was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners'
contention that they have been denied the administrative remedies available under the law has lost
factual support.

It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of
law in the preliminary investigation is negated by the fact that instead of submitting his counter-
affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does not require that the respondent in a
criminal case actually file his counter-affidavits before the preliminary investigation is deemed
completed. All that is required is that the respondent be given the opportunity to submit counter-
affidavits if he is so minded.

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

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

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

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

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and
deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down
guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and
clarified in this resolution.

It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with
regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to
lack or excess of jurisdiction cannot be sustained.

Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential
immunity from suit impose a correlative disability to file suit." He contends that if criminal
proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently
have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This,
continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying
on the witness stand, she would be exposing herself to possible contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free from any hindrance or distraction, considering that
being the Chief Executive of the Government is a job that, aside from requiring all of the office
holder's time, also demands undivided attention.

But this privilege of immunity from suit, pertains to the President by virtue of the office and may be
invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an
accused in a criminal case in which the President is complainant cannot raise the presidential
privilege as a defense to prevent the case from proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the privilege.
Thus, if so minded the President may shed the protection afforded by the privilege and submit to the
court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the
President's prerogative. It is a decision that cannot be assumed and imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel because of the
privileged character or the publication, the Court reiterates that it is not a trier of facts and that such
a defense is best left to the trial court to appreciate after receiving the evidence of the parties.

As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect"
on press freedom, the Court finds no basis at this stage to rule on the point.

The petitions fail to establish that public respondents, through their separate acts, gravely abused
their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition
prayed for cannot issue.

WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on

the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585,
82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en
banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado, JJ., concur.
 Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution of
the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe
this is the more important issue in these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not
hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice
where it is not alone the criminal liability of an accused in a seemingly minor libel case which is
involved but broader considerations of governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and
one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist,
the publisher and chairman of the editorial board, the managing editor and the business manager in
a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal
attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause
dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution
for libel. We have as complainant a powerful and popular President who heads the investigation and
prosecution service and appoints members of appellate courts but who feels so terribly maligned
that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the
press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals
and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of sensitive
issues and public affairs, this Court and not a lower tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear
conscience." The Court pointed out that while defamation is not authorized, criticism is to be
expected and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the eye
 of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and
has equal rights with every other man." (at p. 900)

In fact, the Court observed that high official position, instead of affording immunity from slanderous
and libelous charges, would actually invite attacks by those who desire to create sensation. It would
seem that what would ordinarily be slander if directed at the typical person should be examined from
various perspectives if directed at a high government official. Again, the Supreme Court should draw
this fine line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that
a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the
free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where
after discounting the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and
publishers to courageously perform their critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors tell their people to lay off certain
issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call
attention to our decisions which caution that "no inroads on press freedom should be allowed in the
guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court
of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to
give any more weight to the epithet "libel" than we have to other "mere labels" of
state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328.
Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the other various other formulae for the
repression of expression that have been challenged in this Court, libel can claim no
talismanic immunity from constitutional limitations. It must be measured by standards
that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political
duty; and that this should be a fundamental principle of the American government.
They recognized the risk to which all human institutions are subject. But they knew
that order cannot be secured merely through fear of punishment for its infraction; that
it is hazardous to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable government; that
the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsel is good ones.
Believing in the power of reason as applied through public discussion, they
eschewed silence coerced by law—the argument of force in its worst form. ...

Thus we consider this case against the background of a profound national

commitment to the principle that debate on public issues should be uninhibited,
robust, and wide open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials. ... (at pp.
700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs.
Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly
participated in a wilful purveying of falsehood? Considering the free speech aspects of these
petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes publishers and editors but
perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech
clause but we have to understand that some provocative words, which if taken literally may appear
to shame or disparage a public figure, may really be intended to provoke debate on public issues
when uttered or written by a media personality. Will not a criminal prosecution in the type of case
now before us dampen the vigor and limit the variety of public debate? There are many other
questions arising from this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly
drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue
on prematurity is moot. The second issue discusses a procedure now embodied in the recently
amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent
the third issue, considerations of public policy dictate that an incumbent President should not be
sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if
somebody vilifies or maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I
know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But why
should we subject them to this problem? And why should we allow the possibility of the trial court
treating and deciding the case as one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues involving government power and freedom
of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that
criminal libel laws are consistent with the concept of ordered liberty only when
applied with safeguards evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution of
the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe
this is the more important issue in these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not
hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice
where it is not alone the criminal liability of an accused in a seemingly minor libel case which is
involved but broader considerations of governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and
one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist,
the publisher and chairman of the editorial board, the managing editor and the business manager in
a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal
attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause
dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution
for libel. We have as complainant a powerful and popular President who heads the investigation and
prosecution service and appoints members of appellate courts but who feels so terribly maligned
that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the
press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals
and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of sensitive
issues and public affairs, this Court and not a lower tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear
conscience." The Court pointed out that while defamation is not authorized, criticism is to be
expected and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the eye
of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and
has equal rights with every other man." (at p. 900)

In fact, the Court observed that high official position, instead of affording immunity from slanderous
and libelous charges, would actually invite attacks by those who desire to create sensation. It would
seem that what would ordinarily be slander if directed at the typical person should be examined from
various perspectives if directed at a high government official. Again, the Supreme Court should draw
this fine line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that
a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the
free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where
after discounting the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and
publishers to courageously perform their critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors tell their people to lay off certain
issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call
attention to our decisions which caution that "no inroads on press freedom should be allowed in the
guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court
of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra). <äre||anº•1àw>

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to
give any more weight to the epithet "libel" than we have to other "mere labels" of
state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328.
Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the other various other formulae for the
repression of expression that have been challenged in this Court, libel can claim no
talismanic immunity from constitutional limitations. It must be measured by standards
that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political
duty; and that this should be a fundamental principle of the American government.
They recognized the risk to which all human institutions are subject. But they knew
that order cannot be secured merely through fear of punishment for its infraction; that
it is hazardous to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable government; that
the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsel is good ones.
Believing in the power of reason as applied through public discussion, they
eschewed silence coerced by law—the argument of force in its worst form. ...

Thus we consider this case against the background of a profound national

commitment to the principle that debate on public issues should be uninhibited,
robust, and wide open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials. ... (at pp.
700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs.
Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly
participated in a wilful purveying of falsehood? Considering the free speech aspects of these
petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes publishers and editors but
perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech
clause but we have to understand that some provocative words, which if taken literally may appear
to shame or disparage a public figure, may really be intended to provoke debate on public issues
when uttered or written by a media personality. Will not a criminal prosecution in the type of case
now before us dampen the vigor and limit the variety of public debate? There are many other
questions arising from this unusual case which have not been considered.
I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly
drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue
on prematurity is moot. The second issue discusses a procedure now embodied in the recently
amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent
the third issue, considerations of public policy dictate that an incumbent President should not be
sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if
somebody vilifies or maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I
know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But why
should we subject them to this problem? And why should we allow the possibility of the trial court
treating and deciding the case as one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues involving government power and freedom
of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that
criminal libel laws are consistent with the concept of ordered liberty only when
applied with safeguards evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.

EN BANC

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern. 3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services 6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry. 9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10
The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment 11 signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella. 12 On November 20,
the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding. 13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and
during its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000. 15

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

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

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

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

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

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

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

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

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

I call on all my supporters and followers to join me in to promotion of a constructive

national spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

 MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

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

"Sir:

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

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20. 23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33

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

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo

to Take her Oath of Office as President of the Republic of the Philippines before the
Chief Justice — Acting on the urgent request of Vice President Gloria Macapagal-
Arroyo to be sworn in as President of the Republic of the Philippines, addressed to
the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001,
which request was treated as an administrative matter, the court Resolve
unanimously to confirm the authority given by the twelve (12) members of the Court
then present to the Chief Justice on January 20, 2001 to administer the oath of office
of Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of
January 20, 2001. 1âwphi1.nêt

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

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

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

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

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr. 43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178. 45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46

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

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001. 49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class. 50

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

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo
Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an
Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as
other supporting documents in answer to the aforementioned complaints against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

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

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

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

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

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

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

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner

Estrada is a President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the

criminal prosecution of petitioner Estrada. In the negative and on the assumption that
petitioner is still President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of

prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law. 55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is
found a textually demonstrable constitutional commitment of the issue to a
coordinate political department or a lack of judicially discoverable and manageable
standards for resolving it, or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on question. Unless one
of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The
doctrine of which we treat is one of 'political questions', not of 'political cases'."
In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question. 57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction. 60With the new provision, however,
courts are given a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."

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

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

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

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

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of

the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances."

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

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

II

Whether or not the petitioner

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

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

"Sec. 8. In case of death, permanent disability, removal from office or resignation of

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

x x x."

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

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

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

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

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.
As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family. 83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace." 85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

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

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

"x x x

I explain what happened during the first round of negotiations.

The President immediately stresses that he just wants the five-day period promised
by Reyes, as well as to open the second envelope to clear his name.

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

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

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

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

"Opposition's deal

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

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

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

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

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

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

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

Our deal

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

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

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

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

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

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment
court will authorize the opening of the second envelope in the impeachment trial as
proof that the subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January
2001 (the 'Transition Period"), the incoming Cabinet members shall receive an
appropriate briefing from the outgoing Cabinet officials as part of the orientation
program.

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

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

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

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

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

"xxx

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

Agreement.

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

xxx
The rest of the agreement follows:

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

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

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

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

The Vice President shall issue a public statement in the form and tenor provided for
in Annex "B" heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement,
signed by our side and awaiting the signature of the United opposition.

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

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

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

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

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

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

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

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

I then advise the President that the Supreme Court has ruled that Chief Justice
Davide will administer the oath to Gloria at 12 noon.
 The President is too stunned for words:

Final meal

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

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

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

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

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

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

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

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

I call on all my supporters and followers to join me in the promotion of a constructive

national spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

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

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

"Sir.

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

(Sgd.) Joseph Ejercito Estrada"

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

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an

investigation, criminals or administrative, or pending a prosecution against him, for
any offense under this Act or under the provisions of the Revised Penal Code on
bribery."

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

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

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

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

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombu

EN BANC

G.R. No. 152259 July 29, 2004

ALFREDO T. ROMUALDEZ, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN (Fifth Division) and the PEOPLE of the
PHILIPPINES, respondents.

DECISION
PANGANIBAN, J.:

Repetitive motions to invalidate or summarily terminate a criminal indictment prior to plea and trial,
however they may be named or identified -- whether as a motion to quash or motion to dismiss or by
any other nomenclature -- delay the administration of justice and unduly burden the court system.
Grounds not included in the first of such repetitive motions are generally deemed waived and can no
longer be used as bases of similar motions subsequently filed.

Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential relatives who
"intervene, directly or indirectly, in any business, transaction, contract or application with the
Government." This provision is not vague or "impermissibly broad," because it can easily be
understood with the use of simple statutory construction. Neither may the constitutionality of a
criminal statute such as this be challenged on the basis of the "overbreadth" and the "void-for-
vagueness" doctrines, which apply only to free-speech cases.

The Case

Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court, seeking to set aside the
November 20, 20012 and the March 1, 20023 Resolutions of the Sandiganbayan in Criminal Case No.
13736. The first Resolution disposed thus:

"WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The arraignment
of the accused and the pre-trial of the case shall proceed as scheduled." 4

The second Resolution denied reconsideration.

The Facts

The facts of the case are narrated by the Sandiganbayan as follows:

"[The People of the Philippines], through the Presidential Commission on Good Government
(PCGG), filed on July 12, 1989 an information before [the anti-graft court] charging the
accused [with] violation of Section 5, Republic Act No. 3019, 5 as amended. The Information
reads:

'That on or about and during the period from July 16, 1975 to July 29, 1975, in Metro
Manila, Philippines, and within the jurisdiction of [the Sandiganbayan], said
[petitioner], brother-in-law of Ferdinand E. Marcos, former President of the
Philippines, and therefore, related to the latter by affinity within the third civil degree,
did then and there wil[l]fully and unlawfully, and with evident bad faith, for the
purpose of promoting his self-interested [sic] and/or that of others, intervene directly
or indirectly, in a contract between the National Shipyard and Steel Corporation
(NASSCO), a government-owned and controlled corporation and the Bataan
Shipyard and Engineering Company (BASECO), a private corporation, the majority
stocks of which is owned by former President Ferdinand E. Marcos, whereby the
NASSCO sold, transferred and conveyed to the BASECO its ownership and all its
titles and interests over all equipment and facilities including structures, buildings,
shops, quarters, houses, plants and expendable and semi-expendable assets,
located at the Engineer Island known as the Engineer Island Shops including some
of its equipment and machineries from Jose Panganiban, Camarines Norte needed
by BASECO in its shipbuilding and ship repair program for the amount
of P5,000,000.00.
 'Contrary to law.'

"On December 27, 1996, the accused filed his first 'MOTION TO DISMISS AND TO DEFER
ARRAIGNMENT' claiming that no valid preliminary investigation was conducted in the instant
case. He asserts that if a preliminary investigation could be said to have been conducted, the
same was null and void having been undertaken by a biased and partial investigative body.

"On January 9, 1997, [the Sandiganbayan], through the First Division, issued an order giving
the accused fifteen days to file a Motion for Reinvestigation with the Office of the Special
Prosecutor.

"[Petitioner] questioned said order before the Supreme Court via a petition for Certiorari and
Prohibition with prayer for temporary restraining order. On January 21, 1998, the Supreme
Court dismissed the petition for failure to show that [the Sandiganbayan] committed grave
abuse of discretion in issuing the assailed order.

"On November 9, 1998, the [petitioner] filed with the Office of the Special Prosecutor a
Motion to Quash.

"On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio U. Tabanguil,
manifested that the prosecution had already concluded the reinvestigation of the case. He
recommended the dismissal of the instant case. Both the Deputy Special Prosecutor and the
Special Prosecutor approved the recommendation. However, Ombudsman Aniano A.
Desierto disagreed and directed the prosecutors to let the [petitioner] present his evidence in
Court.

"Subsequently, [petitioner] filed on October 8, 1999 his second 'MOTION TO QUASH AND
TO DEFER ARRAIGNMENT'.

"On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit.

"On June 19, 2001, [the] accused filed a 'MOTION FOR LEAVE TO FILE MOTION TO
DISMISS'. On June 29, 2001, the [Sandiganbayan] admitted the motion and admitted the
attached (third) Motion to Dismiss.

"The [Motion to Dismiss] raise[d] the following grounds:

'I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF [PETITIONER]

WAS VIOLATED DURING THE PRELIMINARY INVESTIGATION STAGE IN THE
FOLLOWING WAYS:

'A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE

INSTANT CASE; AND

'B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A BIASED AND

PARTIAL INVESTIGATOR

'II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED OF THE

NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WAS VIOLATED
 'III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973 CONSTITUTION,
[PETITIONER] IS IMMUNE FROM CRIMINAL PROSECUTION

'IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY

PRESCRIPTION'"6

Ruling of the Sandiganbayan

The Sandiganbayan explained that all the grounds invoked by petitioner, except the third one, had
already been raised by him and passed upon in its previous Resolutions. 7 In resolving the third
ground, the anti-graft court pointed out that Section 17 of the 1973 Constitution became effective
only in 1981 when the basic law was amended. Since his alleged illegal intervention had been
committed on or about 1975, the amended provision was inapplicable to him.8

In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan passed upon the
other grounds he had raised. It ruled that his right to a preliminary investigation was not violated,
because he had been granted a reinvestigation. 9 It further held that his right to be informed of the
nature and cause of the accusation was not trampled upon, either, inasmuch as the Information had
set forth the essential elements of the offense charged. 10

Hence, this Petition.11

The Issues

In his Memorandum, petitioner assigns the following errors for our consideration:

"Whether or not the Honorable Sandiganbayan erred and gravely abused its discretion
amounting to lack of, or in excess of jurisdiction –

I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear and
incontrovertible evidence that:

A. Section 5 of Republic Act No. 3019 is unconstitutional because its vagueness

violates the due process right of an individual to be informed of the nature and the
cause of the accusation against him;

B. Section 5 of Republic Act No. 3019 is unconstitutional because it violates the due
process right of an individual to be presumed innocent until the contrary is proved;

C. The constitutional right of petitioner x x x to be informed of the nature and the

cause of the accusation against him was violated;

D. The constitutional right to due process of law of petitioner x x x was violated

during the preliminary investigation stage in the following ways:

[i] No valid preliminary investigation was con-ducted for Criminal Case No.
13736; and

[ii] The preliminary investigation was conducted by a biased and partial

investigator.
 E. The criminal action or liability has been extinguished by prescription; and

F. Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner x x x is

immune from criminal prosecution.

And

II. In light of the foregoing, in denying petitioner['s] x x x right to equal protection of the
laws."12

Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019 is
unconstitutional; (2) whether the Information is vague; (3) whether there was a valid preliminary
investigation; (4) whether the criminal action or liability has been extinguished by prescription; and
(5) whether petitioner is immune from criminal prosecution under then Section 17 of Article VII of the
1973 Constitution.

The Court's Ruling

The Petition has no merit.

First Issue:
Constitutionality of Section 5,
Republic Act 3019

Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in the
Sandiganbayan through a Supplemental Motion to Dismiss. Attached to his December 7, 2001
Motion for Reconsideration of the Order denying his Motion to Dismiss was this Supplemental
Motion which was, in effect, his third motion to quash. 13 We note that the Petition for Certiorari before
us challenges the denial of his original, not his Supplemental, Motion to Dismiss.

Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could have filed a
motion for reconsideration of the denial. Had reconsideration been turned down, the next proper
remedy would have been either (1) a petition for certiorari14 -- if there was grave abuse of discretion --
which should be filed within 60 days from notice of the assailed order; 15 or (2) to proceed to trial
without prejudice to his right, if final judgment is rendered against him, to raise the same questions
before the proper appellate court.16 But instead of availing himself of these remedies, he filed a
"Motion to Dismiss" on June 19, 2001.

Impropriety of
Repetitive Motions

There is no substantial distinction between a "motion to quash" and a "motion to dismiss." Both pray
for an identical relief, which is the dismissal of the case. Such motions are employed to raise
preliminary objections, so as to avoid the necessity of proceeding to trial. A motion to quash is
generally used in criminal proceedings to annul a defective indictment. A motion to dismiss, the
nomenclature ordinarily used in civil proceedings, is aimed at summarily defeating a complaint.
Thus, our Rules of Court use the term "motion to quash" in criminal, 17 and "motion to dismiss" in civil,
proceedings.18
In the present case, however, both the "Motion to Quash" and the "Motion to Dismiss" are anchored
on basically the same grounds and pray for the same relief. The hairsplitting distinction posited by
petitioner does not really make a difference.

By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second motion to quash. A
party is not permitted to raise issues, whether similar or different, by installment. The Rules abhor
repetitive motions. Otherwise, there would be no end to preliminary objections, and trial would never
commence. A second motion to quash delays the administration of justice and unduly burdens the
courts. Moreover, Rule 117 provides that grounds not raised in the first motion to quash are
generally deemed waived.19 Petitioner's "Motion to Dismiss" violates this rule.

Constitutionality of
the Challenged Provision

If only for the foregoing procedural lapses, the Petition deserves to be dismissed outright. However,
given the importance of this case in curtailing graft and corruption, the Court will nevertheless
address the other issues on their merit. Petitioner challenges the validity of Section 5 of Republic Act
3019, a penal statute, on the ground that the act constituting the offense is allegedly vague and
"impermissibly broad."

It is best to stress at the outset that the overbreadth20 and the vagueness21 doctrines have special
application only to free-speech cases. They are not appropriate for testing the validity of penal
statutes. Mr. Justice Vicente V. Mendoza explained the reason as follows:

"A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible 'chilling effect' upon protected speech. The theory is that '[w]hen
statutes regulate or proscribe speech and no readily apparent construction suggests itself as
a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all
society of constitutionally protected expression is deemed to justify allowing attacks on overly
broad statutes with no requirement that the person making the attack demonstrate that his
own conduct could not be regulated by a statute drawn with narrow specificity.' The possible
harm to society in permitting some unprotected speech to go unpunished is outweighed by
the possibility that the protected speech of others may be deterred and perceived grievances
left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general
in terrorem effect resulting from their very existence, and, if facial challenge is allowed for
this reason alone, the State may well be prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the law cannot take chances as in the area of
free speech.

xxxxxxxxx

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established rule is that 'one to
whom application of a statute is constitutional will not be heard to attack the statute on the
ground that impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional.' As has been pointed out, 'vagueness
challenges in the First Amendment context, like overbreadth challenges typically produce
 facial invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant.'" 22(underscoring supplied)

"To this date, the Court has not declared any penal law unconstitutional on the ground of
ambiguity."23 While mentioned in passing in some cases, the void-for-vagueness concept has
yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad,24 the Bookkeeping
Act was found unconstitutional because it violated the equal protection clause, not because it
was vague. Adiong v. Comelec25 decreed as void a mere Comelec Resolution, not a statute.
Finally, Santiago v. Comelec26 held that a portion of RA 6735 was unconstitutional because of
undue delegation of legislative powers, not because of vagueness.

Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal of parties
whose cases may not have even reached the courts. Such invalidation would constitute a departure
from the usual requirement of "actual case and controversy" and permit decisions to be made in a
sterile abstract context having no factual concreteness. In Younger v. Harris, this evil was aptly
pointed out by the U.S. Supreme Court in these words:27

"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x
x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided."

For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a

"manifestly strong medicine" to be employed "sparingly and only as a last resort." In determining the
constitutionality of a statute, therefore, its provisions that have allegedly been violated must be
examined in the light of the conduct with which the defendant has been charged. 28

As conduct -- not speech -- is its object, the challenged provision must be examined only "as
applied" to the defendant, herein petitioner, and should not be declared unconstitutional for
overbreadth or vagueness.

The questioned provision reads as follows:

"Section 5. Prohibition on certain relatives. — It shall be unlawful for the spouse or for any
relative, by consanguinity or affinity, within the third civil degree, of the President of the
Philippines, the Vice-President of the Philippines, the President of the Senate, or the
Speaker of the House of Representatives, to intervene, directly or indirectly, in any business,
transaction, contract or application with the Government: Provided, That this section shall not
apply to any person who, prior to the assumption of office of any of the above officials to
whom he is related, has been already dealing with the Government along the same line of
business, nor to any transaction, contract or application already existing or pending at the
time of such assumption of public office, nor to any application filed by him the approval of
which is not discretionary on the part of the official or officials concerned but depends upon
compliance with requisites provided by law, or rules or regulations issued pursuant to law,
nor to any act lawfully performed in an official capacity or in the exercise of a profession."

Petitioner also claims that the phrase "to intervene directly or indirectly, in any business, transaction,
contract or application with the Government" is vague and violates his right to be informed of the
cause and nature of the accusation against him.29 He further complains that the provision does not
specify what acts are punishable under the term intervene, and thus transgresses his right to be
presumed innocent.30 We disagree.

Every statute is presumed valid.31 On the party challenging its validity weighs heavily the onerous
task of rebutting this presumption.32 Any reasonable doubt about the validity of the law should be
resolved in favor of its constitutionality. 33 To doubt is to sustain, as tersely put by Justice George
Malcolm. In Garcia v. Executive Secretary,34 the rationale for the presumption of constitutionality was
explained by this Court thus:

"The policy of the courts is to avoid ruling on constitutional questions and to presume that the
acts of the political departments are valid in the absence of a clear and unmistakable
showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of
separation of powers which enjoins upon each department a becoming respect for the acts
of the other departments. The theory is that as the joint act of Congress and the President of
the Philippines, a law has been carefully studied and determined to be in accordance with
the fundamental law before it was finally enacted."35

In the instant case, petitioner has miserably failed to overcome such presumption. This Court has
previously laid down the test for determining whether a statute is vague, as follows:

"x x x [A] statute establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what conduct is prohibited
by the statute. It can only be invoked against that species of legislation that is utterly vague
on its face, i.e., that which cannot be clarified either by a saving clause or by construction.

"A statute or act may be said to be vague when it lacks comprehensible standards that men
of common intelligence must necessarily guess at its meaning and differ in its application. In
such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due
process for failure to accord persons, especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle. 36 But the doctrine
does not apply as against legislations that are merely couched in imprecise language but
which nonetheless specify a standard though defectively phrased; or to those that are
apparently ambiguous yet fairly applicable to certain types of activities. The first may be
'saved' by proper construction, while no challenge may be mounted as against the second
whenever directed against such activities.37 With more reason, the doctrine cannot be invoked
where the assailed statute is clear and free from ambiguity, as in this case.

"The test in determining whether a criminal statute is void for uncertainty is whether the
language conveys a sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practice. 38 It must be stressed, however, that the
'vagueness' doctrine merely requires a reasonable degree of certainty for the statute to be
upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest.
Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds
of the statute are clearly delineated. An act will not be held invalid merely because it might
have been more explicit in its wordings or detailed in its provisions, especially where,
because of the nature of the act, it would be impossible to provide all the details in advance
as in all other statutes."39

A simpler test was decreed in Dans v. People,40 in which the Court said that there was nothing vague
about a penal law that adequately answered the basic query "What is the violation?" 41 Anything
beyond -- the hows and the whys -- are evidentiary matters that the law itself cannot possibly
disclose, in view of the uniqueness of every case. 42

The question "What is the violation?" is sufficiently answered by Section 5 of RA 3019, as follows:

1. The offender is a spouse or any relative by consanguinity or affinity within the third civil
degree of the President of the Philippines, the Vice-President of the Philippines, the
President of the Senate, or the Speaker of the House of Representatives; and

2. The offender intervened directly or indirectly in any business, transaction, contract or

application with the government.

Applicability of
Statutory Construction

As to petitioner's claim that the term intervene is vague, this Court agrees with the Office of the
Solicitor General that the word can easily be understood through simple statutory construction. The
absence of a statutory definition of a term used in a statute will not render the law "void for
vagueness," if the meaning can be determined through the judicial function of
construction.43 Elementary is the principle that words should be construed in their ordinary and usual
meaning.

"x x x. A statute is not rendered uncertain and void merely because general terms are used
therein, or because of the employment of terms without defining them; 44 much less do we
have to define every word we use. Besides, there is no positive constitutional or statutory
command requiring the legislature to define each and every word in an enactment. Congress
is not restricted in the form of expression of its will, and its inability to so define the words
employed in a statute will not necessarily result in the vagueness or ambiguity of the law so
long as the legislative will is clear, or at least, can be gathered from the whole act x x x.

"x x x [I]t is a well-settled principle of legal hermeneutics that words of a statute will be
interpreted in their natural, plain and ordinary acceptation and signification,45 unless it is
evident that the legislature intended a technical or special legal meaning to those
words.46 The intention of the lawmakers - who are, ordinarily, untrained philologists and
lexicographers - to use statutory phraseology in such a manner is always presumed." 47

The term intervene should therefore be understood in its ordinary acceptation, which is to "to come
between."48Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019 -- any
person who intervenes in any manner in any business, transaction, contract or application with the
government. As we have explained, it is impossible for the law to provide in advance details of how
such acts of intervention could be performed. But the courts may pass upon those details once trial
is concluded. Thus, the alleged vagueness of intervene is not a ground to quash the information
prior to the commencement of the trial.

In sum, the Court holds that the challenged provision is not vague, and that in any event, the
"overbreath" and "void for vagueness" doctrines are not applicable to this case.

Second Issue:
Allegedly Vague Information
Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further contends that
the Information itself is also unconstitutionally vague, because it does not specify the acts of
intervention that he supposedly performed.49 Again, we disagree.

When allegations in the information are vague or indefinite, the remedy of the accused is not a
motion to quash, but a motion for a bill of particulars.50 The pertinent provision in the Rules of Court is
Section 9 of Rule 116, which we quote:

"Section 9. Bill of particulars. -- The accused may, before arraignment, move for a bill of
particulars to enable him properly to plead and prepare for trial. The motion shall specify the
alleged defects of the complaint or information and the details desired."

The rule merely requires the information to describe the offense with sufficient particularity as to
apprise the accused of what they are being charged with and to enable the court to pronounce
judgment. 51 The particularity must be such that persons of ordinary intelligence may immediately
know what is meant by the information. 52

While it is fundamental that every element of the offense must be alleged in the information, 53 matters
of evidence -- as distinguished from the facts essential to the nature of the offense -- need not be
averred.54 Whatever facts and circumstances must necessarily be alleged are to be determined by
reference to the definition and the essential elements of the specific crimes.55

In the instant case, a cursory reading of the Information shows that the elements of a violation of
Section 5 of RA 3019 have been stated sufficiently. Likewise, the allegations describe the offense
committed by petitioner with such particularity as to enable him to prepare an intelligent defense.
Details of the acts he committed are evidentiary matters that need not be alleged in the Information.

Third Issue:
Preliminary Investigation

Clearly, petitioner already brought the issue of lack of preliminary investigation when he questioned
before this Court in GR No. 128317 the Sandiganbayan's Order giving him 15 days to file a Motion
for Reinvestigation with the Office of the Special Prosecutor. 56 Citing Cojuangco v. Presidential
Commission on Good Government,57 he undauntedly averred that he was deprived of his right to a
preliminary investigation, because the PCGG acted both as complainant and as investigator. 58

In the case cited above, this Court declared that while PCGG had the power to conduct a preliminary
investigation, the latter could not do so with the "cold neutrality of an impartial judge" in cases in
which it was the agency that had gathered evidence and subsequently filed the complaint. 59 On that
basis, this Court nullified the preliminary investigation conducted by PCGG and directed the
transmittal of the records to the Ombudsman for appropriate action.

It is readily apparent that Cojuangco does not support the quashal of the Information against herein
petitioner. True, the PCGG initiated the present Complaint against him; hence, it could not properly
conduct the preliminary investigation. However, he was accorded his rights -- the Sandiganbayan
suspended the trial and afforded him a reinvestigation by the Ombudsman. The procedure outlined
in Cojuangco was thus followed.

The Sandiganbayan's actions are in accord also with Raro v. Sandiganbayan,60 which held that the
failure to conduct a valid preliminary investigation would not warrant the quashal of an information. If
the information has already been filed, the proper procedure is for the Sandiganbayan to hold the
trial in abeyance while the preliminary investigation is being conducted or completed. 61
 Fourth Issue:
Prescription

The issue of prescription was the principal basis of the Motion to Quash filed by petitioner with the
Sandiganbayan on October 8, 1999.62 Such issue should be disregarded at this stage, since he failed
to challenge its ruling debunking his Motion within the 60-day period for the filing of a petition for
certiorari. A party may not circumvent this rule by filing a subsequent motion that raises the same
issue and the same arguments.

Furthermore, it is easy to see why this argument being raised by petitioner is utterly unmeritorious.
He points out that according to the Information, the offense was committed "during the period from
July 16, 1975 to July 29, 1975." He argues that when the Information was filed on July 12,
1989,63 prescription had already set in, because the prescriptive period for a violation of Republic Act
No. 3019 is only ten (10) years from the time the offense was allegedly committed. The increase of
this prescriptive period to fifteen (15) years took effect only on March 16, 1982, upon the enactment
of Batas Pambansa Blg. 195.64

Act No. 3326, as amended,65 governs the prescription of offenses penalized by special laws. Its
pertinent provision reads:

"Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the
law, and if the same not be known at the time, from the discovery thereof and the institution
of judicial proceedings for its investigation and punishment.

"The prescription shall be interrupted when proceedings are instituted against the guilty
person, and shall begin to run again if the proceedings are dismissed for reasons not
constituting jeopardy."

Consistent with the provision quoted above, this Court has previously reckoned the prescriptive
period of cases involving RA 3019 (committed prior to the February 1986 EDSA Revolution) from
the discovery of the violation.66 In Republic v. Desierto, the Court explained:

"This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad Hoc Fact-
Finding Committee on Behest Loans v. Desierto. In the said recent case, the Board of
Directors of the Philippine Seeds, Inc. and Development Bank of the Philippines were
charged with violation of paragraphs (e) and (g) of Section 3 of RA No. 3019, by the
Presidential Ad Hoc Fact-Finding Committee on Behest Loans, created by then President
Fidel V. Ramos to investigate and to recover the so-called 'Behest Loans', where the
Philippine Government guaranteed several foreign loans to corporations and entities
connected with the former President Marcos. x x x In holding that the case had not yet
prescribed, this Court ruled that:

'In the present case, it was well-nigh impossible for the State, the aggrieved party, to
have known the violations of RA No. 3019 at the time the questioned transactions
were made because, as alleged, the public officials concerned connived or conspired
with the 'beneficiaries of the loans.' Thus, we agree with the COMMITTEE that the
prescriptive period for the offenses with which the respondents in OMB-0-96-0968
were charged should be computed from the discovery of the commission thereof and
not from the day of such commission.

xxx xxx xxx

 'People v. Duque is more in point, and what was stated there stands reiteration: In
the nature of things, acts made criminal by special laws are frequently not immoral or
obviously criminal in themselves; for this reason, the applicable statute requires that
if the violation of the special law is not known at the time, the prescription begins to
run only from the discovery thereof, i.e., discovery of the unlawful nature of the
constitutive act or acts.' (Italics supplied)

"There are striking parallelisms between the said Behest Loans Case and the present one
which lead us to apply the ruling of the former to the latter. First, both cases arose out of
seemingly innocent business transactions; second, both were 'discovered' only after the
government created bodies to investigate these anomalous transactions; third, both involve
prosecutions for violations of RA No. 3019; and, fourth, in both cases, it was sufficiently
raised in the pleadings that the respondents conspired and connived with one another in
order to keep the alleged violations hidden from public scrutiny.

"This Court's pronouncement in the case of Domingo v. Sandiganbayan is quite relevant and
instructive as to the date when the discovery of the offense should be reckoned, thus:

'In the present case, it was well-nigh impossible for the government, the aggrieved
party, to have known the violations committed at the time the questioned transactions
were made because both parties to the transactions were allegedly in conspiracy to
perpetuate fraud against the government. The alleged anomalous transactions could
only have been discovered after the February 1986 Revolution when one of the
original respondents, then President Ferdinand Marcos, was ousted from office. Prior
to said date, no person would have dared to question the legality or propriety of
those transactions. Hence, the counting of the prescriptive period would commence
from the date of discovery of the offense, which could have been between February
1986 after the EDSA Revolution and 26 May 1987 when the initiatory complaint was
filed.'"67

The above pronouncement is squarely applicable to the present case. The general rule that
prescription shall begin to run from the day of the commission of the crime cannot apply to the
present case. It is not legally prudent to charge the State, the aggrieved party, with knowledge of the
violation of RA 3019 at the time the alleged intervention was made. The accused is the late
President Ferdinand E. Marcos' brother-in-law. He was charged with intervening in a sale involving a
private corporation, the majority stocks of which was allegedly owned by President Marcos.

Prior to February 1986, no person was expected to have seriously dared question the legality of the
sale or would even have thought of investigating petitioner's alleged involvement in the transaction. It
was only after the creation68of PCGG69 and its exhaustive investigations that the alleged crime was
discovered. This led to the initiation on November 29, 1988 of a Complaint against former President
Marcos and petitioner for violation of the Anti-Graft and Corrupt Practices Act. Consequently, the
filing of the Information on July 12, 1989 was well within the prescriptive period of ten years from
the discovery of the offense.

Fifth Issue
Immunity from Prosecution

Petitioner argues that he enjoys derivative immunity, because he allegedly served as a high-ranking
naval officer -- specifically, as naval aide-de-camp -- of former President Marcos.70 He relies on
Section 17 of Article VII of the 1973 Constitution, as amended, which we quote:
 "The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

"x x x xxx x x x"

As the Sandiganbayan aptly pointed out, the above provision is not applicable to petitioner because
the immunity amendment became effective only in 1981 while the alleged crime happened in 1975.

In Estrada v. Desierto,71 this Court exhaustively traced the origin of executive immunity in order to
determine the extent of its applicability. We explained therein that executive immunity applied only
during the incumbency of a President. It could not be used to shield a non-sitting President from
prosecution for alleged criminal acts done while sitting in office. The reasoning of petitioner must
therefore fail, since he derives his immunity from one who is no longer sitting as President. Verily,
the felonious acts of public officials and their close relatives "are not acts of the State, and the officer
who acts illegally is not acting as such but stands on the same footing as any other trespasser."

In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its discretion in
issuing the assailed Resolutions. 72 On the contrary, it acted prudently, in accordance with law and
jurisprudence.

WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the

Sandiganbayan AFFIRMED. Costs against petitioner.

SO ORDERED.

Senate v. Ermita, G.R. No. 169777, April 20, 2006

April 20, 2006

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 169777* April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate

President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N.
PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as
Minority Leader, SENATORS RODOLFO G. BIAZON, “COMPANERA” PIA S. CAYETANO, JINGGOY
EJERCITO ESTRADA, LUISA “LOI” EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON,
PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and
MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria
Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines, Respondents.

x————————-x

G.R. No. 169659 April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep. CRISPIN
BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR,
COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL)
represented by ATTY. REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-
Arroyo, Respondent.

x————————-x

G.R. No. 169660 April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as
Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents.

x————————-x

G.R. No. 169667 April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.

x————————-x

G.R. No. 169834 April 20, 2006

PDP- LABAN, Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

x————————-x

G.R. No. 171246 April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR AMORANDO,
ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD
L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

DECISION
CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in the early history of
republican thought, however, it has been recognized that the head of government may keep certain
information confidential in pursuit of the public interest. Explaining the reason for vesting executive
power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said:
“Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a
much more eminent degree than the proceedings of any greater number; and in proportion as the
number is increased, these qualities will be diminished.”1

History has been witness, however, to the fact that the power to withhold information lends itself to
abuse, hence, the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the President has abused
such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its
declaration as null and void for being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that the issuance under
review has come from a co-equal branch of government, which thus entitles it to a strong presumption
of constitutionality. Once the challenged order is found to be indeed violative of the Constitution, it is
duty-bound to declare it so. For the Constitution, being the highest expression of the sovereign will of
the Filipino people, must prevail over any issuance of the government that contravenes its mandates.

In the exercise of its legislative power, the Senate of the Philippines, through its various Senate
Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the
attendance of officials and employees of the executive department, bureaus, and offices including those
employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines
(AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various
officials of the Executive Department for them to appear on September 29, 2005 as resource speakers in
a public hearing on the railway project of the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail Project). The public hearing was sparked by a
privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing
and other unlawful provisions of the contract covering the North Rail Project.

The Senate Committee on National Defense and Security likewise issued invitations2 dated September
22, 2005 to the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen.
Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of
Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP
Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig.
Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F.
Balutan, for them to attend as resource persons in a public hearing scheduled on September 28, 2005 on
the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled
“Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in
the Presidential Election of May 2005”; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on
July 26, 2005 entitled “The Philippines as the Wire-Tapping Capital of the World”; (3) Privilege Speech of
Senator Rodolfo Biazon delivered on August 1, 2005 entitled “Clear and Present Danger”; (4) Senate
Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal—Resolution Directing the Committee
on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National
Interest, on the Role of the Military in the So-called “Gloriagate Scandal”; and (5) Senate Resolution No.
295 filed by Senator Biazon—Resolution Directing the Committee on National Defense and Security to
Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff,
General Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its postponement
“due to a pressing operational situation that demands [his utmost personal attention” while “some of
the invited AFP officers are currently attending to other urgent operational matters.”

On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo
R. Ermita a letter4 dated September 27, 2005 “respectfully request[ing] for the postponement of the
hearing [regarding the NorthRail project] to which various officials of the Executive Department have
been invited” in order to “afford said officials ample time and opportunity to study and prepare for the
various issues so that they may better enlighten the Senate Committee on its investigation.”

Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators “are unable to
accede to [his request]” as it “was sent belatedly” and “[a]ll preparations and arrangements as well as
notices to all resource persons were completed [the previous] week.”

Senate President Drilon likewise received on September 28, 2005 a letter 6 from the President of the
North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project
be postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements
relative to the project had been secured.

On September 28, 2005, the President issued E.O. 464, “Ensuring Observance of the Principle of
Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public
Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other
Purposes,”7 which, pursuant to Section 6 thereof, took effect immediately. The salient provisions of the
Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI,
Section 22 of the Constitution and to implement the Constitutional provisions on the separation of
powers between co-equal branches of the government, all heads of departments of the Executive
Branch of the government shall secure the consent of the President prior to appearing before either
House of Congress.

When the security of the State or the public interest so requires and the President so states in writing,
the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. – The rule of confidentiality based on executive privilege is fundamental to the
operation of government and rooted in the separation of powers under the Constitution (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and
Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall
not use or divulge confidential or classified information officially known to them by reason of their office
and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public
officers covered by this executive order, including:

Conversations and correspondence between the President and the public official covered by this
executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority,
G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of national security should
not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission
on Good Government, G.R. No. 130716, 9 December 1998).

Information between inter-government agencies prior to the conclusion of treaties and executive
agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December
1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government,

G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250,
9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

Senior officials of executive departments who in the judgment of the department heads are covered by
the executive privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the
judgment of the Chief of Staff are covered by the executive privilege;

Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other
officers who in the judgment of the Chief of the PNP are covered by the executive privilege;

Senior national security officials who in the judgment of the National Security Adviser are covered by the
executive privilege; and

Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in
Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of
Congress to ensure the observance of the principle of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation.
(Emphasis and underscoring supplied)

Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of
E.O. 464, and another letter8 informing him “that officials of the Executive Department invited to appear
at the meeting [regarding the NorthRail project] will not be able to attend the same without the consent
of the President, pursuant to [E.O. 464]” and that “said officials have not secured the required consent
from the President.” On even date which was also the scheduled date of the hearing on the alleged
wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the Committee on National
Defense and Security, informing him “that per instruction of [President Arroyo], thru the Secretary of
National Defense, no officer of the [AFP] is authorized to appear before any Senate or Congressional
hearings without seeking a written approval from the President” and “that no approval has been
granted by the President to any AFP officer to appear before the public hearing of the Senate
Committee on National Defense and Security scheduled [on] 28 September 2005.”

Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation
scheduled by the Committee on National Defense and Security pushed through, with only Col. Balutan
and Brig. Gen. Gudani among all the AFP officials invited attending.

For defying President Arroyo’s order barring military personnel from testifying before legislative
inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military
posts and were made to face court martial proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing
E.O. 464, sent letter of regrets, in response to the invitations sent to the following government officials:
Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit Authority
Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez,
then Presidential Legal Counsel Merceditas Gutierrez, Department of Transportation and
Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza,
Philippine National Railways General Manager Jose Serase II, Monetary Board Member Juanita
Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso Abaya and Secretary
Romulo L. Neri.10NorthRail President Cortes sent personal regrets likewise citing E.O. 464. 11

On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari
and prohibition, were filed before this Court challenging the constitutionality of E.O. 464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members
SaturOcampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an
organization of government employees, and Counsels for the Defense of Liberties (CODAL), a group of
lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have standing to file
the suit because of the transcendental importance of the issues they posed, pray, in their petition that
E.O. 464 be declared null and void for being unconstitutional; that respondent Executive Secretary
Ermita, in his capacity as Executive Secretary and alter-ego of President Arroyo, be prohibited from
imposing, and threatening to impose sanctions on officials who appear before Congress due to
congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and
impedes them from fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464
infringes on its right as a political party entitled to participate in governance; SaturOcampo, et al. allege
that E.O. 464 infringes on their rights and duties as members of Congress to conduct investigation in aid
of legislation and conduct oversight functions in the implementation of laws; Courage alleges that the
tenure of its members in public office is predicated on, and threatened by, their submission to the
requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges that its members
have a sworn duty to uphold the rule of law, and their rights to information and to transparent
governance are threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen,
taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that
E.O. 464 be declared null and void for being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17 legal
resource non-governmental organizations engaged in developmental lawyering and work with the poor
and marginalized sectors in different parts of the country, and as an organization of citizens of the
Philippines and a part of the general public, it has legal standing to institute the petition to enforce its
constitutional right to information on matters of public concern, a right which was denied to the public
by E.O. 464,13prays, that said order be declared null and void for being unconstitutional and that
respondent Executive Secretary Ermita be ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the
resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it
has already sustained the same with its continued enforcement since it directly interferes with and
impedes the valid exercise of the Senate’s powers and functions and conceals information of great
public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777
and prays that E.O. 464 be declared unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the
Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition,
docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 because it hampers
its legislative agenda to be implemented through its members in Congress, particularly in the conduct of
inquiries in aid of legislation and transcendental issues need to be resolved to avert a constitutional
crisis between the executive and legislative branches of the government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for
him and other military officers to attend the hearing on the alleged wiretapping scheduled on February
10, 2005. Gen. Senga replied, however, by letter15 dated February 8, 2006, that “[p]ursuant to Executive
Order No. 464, th[e] Headquarters requested for a clearance from the President to allow [them] to
appear before the public hearing” and that “they will attend once [their] request is approved by the
President.” As none of those invited appeared, the hearing on February 10, 2006 was cancelled. 16

In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the
Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the
GinintuangMasaganangAni program of the Department of Agriculture (DA), several Cabinet officials
were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005 but
most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose
Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana, 17 and those from the
Department of Budget and Management18 having invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential
Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of Interior and
Local Government Undersecretary Marius P. Corpus21 communicated their inability to attend due to lack
of appropriate clearance from the President pursuant to E.O. 464. During the February 13, 2005 budget
hearing, however, Secretary Bunye was allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of
the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the
official organization of all Philippine lawyers, all invoking their constitutional right to be informed on
matters of public interest, filed their petition for certiorari and prohibition, docketed as G.R. No. 171246,
and pray that E.O. 464 be declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues
were ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O.
464 prior to its publication in the Official Gazette or in a newspaper of general circulation; and (2)
whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art.
III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The
procedural issue of whether there is an actual case or controversy that calls for judicial review was not
taken up; instead, the parties were instructed to discuss it in their respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit their respective
memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its face,
unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four instances,
namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity of
the ISAFP; and (d) the investigation on the Venable contract.22

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006, while
those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8, 2006.
Petitioners in G.R. No. 171246 did not file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file
memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it would
no longer file its memorandum in the interest of having the issues resolved soonest, prompting this
Court to issue a Resolution reprimanding them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.

The Court synthesizes the issues to be resolved as follows:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and

3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464
prior to its publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the
requisites for a valid exercise of the Court’s power of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have standing to challenge the validity of the subject act
or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be
the very lismota of the case.39

Except with respect to the requisites of standing and existence of an actual case or controversy where
the disagreement between the parties lies, discussion of the rest of the requisites shall be omitted.

Standing

Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and
169667 make it clear that they, adverting to the non-appearance of several officials of the executive
department in the investigations called by the different committees of the Senate, were brought to
vindicate the constitutional duty of the Senate or its different committees to conduct inquiry in aid of
legislation or in the exercise of its oversight functions. They maintain that Representatives Ocampo et al.
have not shown any specific prerogative, power, and privilege of the House of Representatives which
had been effectively impaired by E.O. 464, there being no mention of any investigation called by the
House of Representatives or any of its committees which was aborted due to the implementation of E.O.
464.

As for Bayan Muna’s alleged interest as a party-list representing the marginalized and
underrepresented, and that of the other petitioner groups and individuals who profess to have standing
as advocates and defenders of the Constitution, respondents contend that such interest falls short of
that required to confer standing on them as parties “injured-in-fact.”40

Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer
for the implementation of E.O. 464 does not involve the exercise of taxing or spending power. 41
With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or
direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not the
proper parties to assail the constitutionality of E.O. 464.

Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin 42 and Valmonte v.
Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a proper party, one
must have a personal and substantial interest in the case, such that he has sustained or will sustain
direct injury due to the enforcement of E.O. 464.44

That the Senate of the Philippines has a fundamental right essential not only for intelligent public
decision-making in a democratic system, but more especially for sound legislation 45 is not disputed. E.O.
464, however, allegedly stifles the ability of the members of Congress to access information that is
crucial to law-making.46 Verily, the Senate, including its individual members, has a substantial and direct
interest over the outcome of the controversy and is the proper party to assail the constitutionality of
E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative, powers and privileges
vested by the Constitution in their office and are allowed to sue to question the validity of any official
action which they claim infringes their prerogatives as legislators. 47

In the same vein, party-list representatives SaturOcampo (Bayan Muna), Teodoro Casino (Bayan Muna),
Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza
(Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the absence of any claim that
an investigation called by the House of Representatives or any of its committees was aborted due to the
implementation of E.O. 464 notwithstanding, it being sufficient that a claim is made that E.O. 464
infringes on their constitutional rights and duties as members of Congress to conduct investigation in aid
of legislation and conduct oversight functions in the implementation of laws.

The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three
seats in the House of Representatives in the 2004 elections and is, therefore, entitled to participate in
the legislative process consonant with the declared policy underlying the party list system of affording
citizens belonging to marginalized and underrepresented sectors, organizations and parties who lack
well-defined political constituencies to contribute to the formulation and enactment of legislation that
will benefit the nation.48

As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on
the standing of their co-petitioners Courage and Codal is rendered unnecessary. 49

In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and
the incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer
members,50 invoke their constitutional right to information on matters of public concern, asserting that
the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of other
constitutional rights51 and to the maintenance of the balance of power among the three branches of the
government through the principle of checks and balances.52

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and
personal. In Franciso v. House of Representatives,53 this Court held that when the proceeding involves
the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal
interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the
transcendental issues raised in its petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the ground of transcendental importance,
however, it must establish (1) the character of the funds (that it is public) or other assets involved in the
case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the
public respondent agency or instrumentality of the government, and (3) the lack of any party with a
more direct and specific interest in raising the questions being raised.54 The first and last determinants
not being present as no public funds or assets are involved and petitioners in G.R. Nos. 169777 and
169659 have direct and specific interests in the resolution of the controversy, petitioner PDP-Laban is
bereft of standing to file its petition. Its allegation that E.O. 464 hampers its legislative agenda is vague
and uncertain, and at best is only a “generalized interest” which it shares with the rest of the political
parties. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which
serves in part to cast it in a form traditionally capable of judicial resolution. 55 In fine, PDP-Laban’s alleged
interest as a political party does not suffice to clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by
the Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail project and
the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no showing that President Arroyo
has actually withheld her consent or prohibited the appearance of the invited officials. 56 These officials,
they claim, merely communicated to the Senate that they have not yet secured the consent of the
President, not that the President prohibited their attendance. 57 Specifically with regard to the AFP
officers who did not attend the hearing on September 28, 2005, respondents claim that the instruction
not to attend without the President’s consent was based on its role as Commander-in-Chief of the
Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the
President will abuse its power of preventing the appearance of officials before Congress, and that such
apprehension is not sufficient for challenging the validity of E.O. 464.

The Court finds respondents’ assertion that the President has not withheld her consent or prohibited
the appearance of the officials concerned immaterial in determining the existence of an actual case or
controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate
withholding of consent or an express prohibition issuing from the President in order to bar officials from
appearing before Congress.

As the implementation of the challenged order has already resulted in the absence of officials invited to
the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further
event before considering the present case ripe for adjudication. Indeed, it would be sheer abandonment
of duty if this Court would now refrain from passing on the constitutionality of E.O. 464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives
Congress of the information in the possession of these officials. To resolve the question of whether such
withholding of information violates the Constitution, consideration of the general power of Congress to
obtain information, otherwise known as the power of inquiry, is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution
which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights
of persons appearing in or affected by such inquiries shall be respected. (Underscoring supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the
latter, it vests the power of inquiry in the unicameral legislature established therein—the
BatasangPambansa—and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno, 58 a case
decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is
inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and
Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading
witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to
answer the questions of the senators on an important point, he was, by resolution of the Senate,
detained for contempt. Upholding the Senate’s power to punish Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of Congress with
power to make investigations and exact testimony to the end that it may exercise its legislative
functions advisedly and effectively, such power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry—with process to enforce it—is an essential and
appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in
the absence of information respecting the conditions which the legislation is intended to affect or
change; and where the legislative body does not itself possess the requisite information—which is not
infrequently true—recourse must be had to others who do possess it. Experience has shown that mere
requests for such information are often unavailing, and also that information which is volunteered is not
always accurate or complete; so some means of compulsion is essential to obtain what is needed. 59 . . .
(Emphasis and underscoring supplied)

That this power of inquiry is broad enough to cover officials of the executive branch may be deduced
from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to
legislate.60 The matters which may be a proper subject of legislation and those which may be a proper
subject of investigation are one. It follows that the operation of government, being a legitimate subject
for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in Arnault
was a proper exercise of the power of inquiry. Besides being related to the expenditure of public funds
of which Congress is the guardian, the transaction, the Court held, “also involved government agencies
created by Congress and officers whose positions it is within the power of Congress to regulate or even
abolish.”

Since Congress has authority to inquire into the operations of the executive branch, it would be
incongruous to hold that the power of inquiry does not extend to executive officials who are the most
familiar with and informed on executive operations.

As discussed in Arnault, the power of inquiry, “with process to enforce it,” is grounded on the necessity
of information in the legislative process. If the information possessed by executive officials on the
operation of their offices is necessary for wise legislation on that subject, by parity of reasoning,
Congress has the right to that information and the power to compel the disclosure thereof.

As evidenced by the American experience during the so-called “McCarthy era,” however, the right of
Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s certiorari
powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not properly be
in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp
judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in
Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter,
the possible needed statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the questions relative to and in
furtherance thereof, there would be less room for speculation on the part of the person invited on
whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s duly
published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted
without duly published rules of procedure. Section 21 also mandates that the rights of persons
appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere
to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the legislative
power of inquiry might be established, resulting in palpable violations of the rights guaranteed to
members of the executive department under the Bill of Rights. In such instances, depending on the
particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded
judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of
inquiry, which exemptions fall under the rubric of “executive privilege.” Since this term figures
prominently in the challenged order, it being mentioned in its provisions, its preambular clauses, 62 and
in its very title, a discussion of executive privilege is crucial for determining the constitutionality of E.O.
464.
Executive privilege

The phrase “executive privilege” is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in light of how it
has been defined and used in the legal literature of the United States.

Schwartz defines executive privilege as “the power of the Government to withhold information from the
public, the courts, and the Congress.”64 Similarly, Rozell defines it as “the right of the President and high-
level executive branch officers to withhold information from Congress, the courts, and ultimately the
public.”65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of
varying kinds.67 Tribe, in fact, comments that while it is customary to employ the phrase “executive
privilege,” it may be more accurate to speak of executive privileges “since presidential refusals to furnish
information may be actuated by any of at least three distinct kinds of considerations, and may be
asserted, with differing degrees of success, in the context of either judicial or legislative investigations.”

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents,
beginning with Washington, on the ground that the information is of such nature that its disclosure
would subvert crucial military or diplomatic objectives. Another variety is the informer’s privilege, or the
privilege of the Government not to disclose the identity of persons who furnish information of violations
of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal
deliberations has been said to attach to intragovernmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental decisions and
policies are formulated. 68

Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist
disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique
role and responsibilities of the executive branch of our government. Courts ruled early that the
executive had a right to withhold documents that might reveal military or state secrets. The courts have
also granted the executive a right to withhold the identity of government informers in some
circumstances and a qualified right to withhold information related to pending investigations. xx
x”69 (Emphasis and underscoring supplied)

The entry in Black’s Law Dictionary on “executive privilege” is similarly instructive regarding the scope of
the doctrine.

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from
disclosure requirements applicable to the ordinary citizen or organization where such exemption is
necessary to the discharge of highly important executive responsibilities involved in maintaining
governmental operations, and extends not only to military and diplomatic secrets but also to documents
integral to an appropriate exercise of the executive’ domestic decisional and policy making functions,
that is, those documents reflecting the frank expression necessary in intra-governmental advisory and
deliberative communications.70 (Emphasis and underscoring supplied)
That a type of information is recognized as privileged does not, however, necessarily mean that it would
be considered privileged in all instances. For in determining the validity of a claim of privilege, the
question that must be asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a given procedural setting. 71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In issue
in that case was the validity of President Nixon’s claim of executive privilege against a subpoena issued
by a district court requiring the production of certain tapes and documents relating to the Watergate
investigations. The claim of privilege was based on the President’s general interest in the confidentiality
of his conversations and correspondence. The U.S. Court held that while there is no explicit reference to
a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it
relates to the effective discharge of a President’s powers. The Court, nonetheless, rejected the
President’s claim of privilege, ruling that the privilege must be balanced against the public interest in the
fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there
addressing the issue of claims of privilege in a civil litigation or against congressional demands for
information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare. 73 Despite
frequent assertion of the privilege to deny information to Congress, beginning with President
Washington’s refusal to turn over treaty negotiation records to the House of Representatives, the U.S.
Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals for the District of
Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the President’s privilege
over his conversations against a congressional subpoena.75 Anticipating the balancing approach adopted
by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest protected by the
claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that
the balance favored the President, the Court declined to enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez.77Almonte used the term in reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon decision which explains the basis for the privilege:

“The expectation of a President to the confidentiality of his conversations and correspondences, like the
claim of confidentiality of judicial deliberations, for example, has all the values to which we accord
deference for the privacy of all citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore alternatives in the process of shaping
policies and making decisions and to do so in a way many would be unwilling to express except privately.
These are the considerations justifying a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and inextricably rooted in the separation of
powers under the Constitution x xx ” (Emphasis and underscoring supplied)

Almonte involved a subpoena ducestecum issued by the Ombudsman against the therein petitioners. It
did not involve, as expressly stated in the decision, the right of the people to information. 78 Nonetheless,
the Court recognized that there are certain types of information which the government may withhold
from the public, thus acknowledging, in substance if not in name, that executive privilege may be
claimed against citizens’ demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that there
is a “governmental privilege against public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters.”80 The same case held that closed-door Cabinet
meetings are also a recognized limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority, 81 the Court ruled that the right to information does not
extend to matters recognized as “privileged information under the separation of powers,”82 by which
the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet
meetings. It also held that information on military and diplomatic secrets and those affecting national
security, and information on investigations of crimes by law enforcement agencies before the
prosecution of the accused were exempted from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United States
and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or
not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent
is any recognition that executive officials are exempt from the duty to disclose information by the mere
fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the
presumption inclines heavily against executive secrecy and in favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent
of the President prior to appearing before Congress. There are significant differences between the two
provisions, however, which constrain this Court to discuss the validity of these provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
determination by any official whether they are covered by E.O. 464. The President herself has, through
the challenged order, made the determination that they are. Further, unlike also Section 3, the coverage
of department heads under Section 1 is not made to depend on the department heads’ possession of
any information which might be covered by executive privilege. In fact, in marked contrast to Section 3
vis-à-vis Section 2, there is no reference to executive privilege at all. Rather, the required prior consent
under Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as
the question hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent of the President,
or upon the request of either House, as the rules of each House shall provide, appear before and be
heard by such House on any matter pertaining to their departments. Written questions shall be
submitted to the President of the Senate or the Speaker of the House of Representatives at least three
days before their scheduled appearance. Interpellations shall not be limited to written questions, but
may cover matters related thereto. When the security of the State or the public interest so requires and
the President so states in writing, the appearance shall be conducted in executive session.

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of
Article VI. Section 22 which provides for the question hour must be interpreted vis-à-vis Section 21
which provides for the power of either House of Congress to “conduct inquiries in aid of legislation.” As
the following excerpt of the deliberations of the Constitutional Commission shows, the framers were
aware that these two provisions involved distinct functions of Congress.

MR. MAAMBONG. xxx When we amended Section 20 [now Section 22 on the Question Hour] yesterday,
I noticed that members of the Cabinet cannot be compelled anymore to appear before the House of
Representatives or before the Senate. I have a particular problem in this regard, Madam President,
because in our experience in the Regular BatasangPambansa—as the Gentleman himself has
experienced in the interim BatasangPambansa—one of the most competent inputs that we can put in
our committee deliberations, either in aid of legislation or in congressional investigations, is the
testimonies of Cabinet ministers. We usually invite them, but if they do not come and it is a
congressional investigation, we usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the
Cabinet ministers may refuse to come to the House of Representatives or the Senate [when requested
under Section 22] does not mean that they need not come when they are invited or subpoenaed by the
committee of either House when it comes to inquiries in aid of legislation or congressional investigation.
According to Commissioner Suarez, that is allowed and their presence can be had under Section 21.
Does the gentleman confirm this, Madam President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally
the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of legislation, under
which anybody for that matter, may be summoned and if he refuses, he can be held in contempt of the
House.83 (Emphasis and underscoring supplied)

A distinction was thus made between inquiries in aid of legislation and the question hour. While
attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of
legislation. The reference to Commissioner Suarez bears noting, he being one of the proponents of the
amendment to make the appearance of department heads discretionary in the question hour.

So clearly was this distinction conveyed to the members of the Commission that the Committee on
Style, precisely in recognition of this distinction, later moved the provision on question hour from its
original position as Section 20 in the original draft down to Section 31, far from the provision on
inquiries in aid of legislation. This gave rise to the following exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr.
Presiding Officer, to the Article on Legislative and may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose
that instead of putting it as Section 31, it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned
that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms of its own
lawmaking; whereas, a Question Hour is not actually a power in terms of its own lawmaking power
because in Legislative Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I
hope Commissioner Davide will consider this.

MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a
complement to or a supplement of the Legislative Inquiry. The appearance of the members of Cabinet
would be very, very essential not only in the application of check and balance but also, in effect, in aid of
legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of
Commissioner Davide. In other words, we are accepting that and so this Section 31 would now become
Section 22. Would it be, Commissioner Davide?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong
proceeded from the same assumption that these provisions pertained to two different functions of the
legislature. Both Commissioners understood that the power to conduct inquiries in aid of legislation is
different from the power to conduct inquiries during the question hour. Commissioner Davide’s only
concern was that the two provisions on these distinct powers be placed closely together, they being
complementary to each other. Neither Commissioner considered them as identical functions of
Congress.

The foregoing opinion was not the two Commissioners’ alone. From the above-quoted exchange,
Commissioner Maambong’s committee—the Committee on Style—shared the view that the two
provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was
speaking in his capacity as Chairman of the Committee on the Legislative Department. His views may
thus be presumed as representing that of his Committee.

In the context of a parliamentary system of government, the “question hour” has a definite meaning. It
is a period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers
accountable for their acts and the operation of the government, 85 corresponding to what is known in
Britain as the question period. There was a specific provision for a question hour in the 1973
Constitution86 which made the appearance of ministers mandatory. The same perfectly conformed to
the parliamentary system established by that Constitution, where the ministers are also members of the
legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the immediate accountability of the
Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the National
Assembly for the program of government and shall determine the guidelines of national policy. Unlike in
the presidential system where the tenure of office of all elected officials cannot be terminated before
their term expired, the Prime Minister and the Cabinet remain in office only as long as they enjoy the
confidence of the National Assembly. The moment this confidence is lost the Prime Minister and the
Cabinet may be changed.87

The framers of the 1987 Constitution removed the mandatory nature of such appearance during the
question hour in the present Constitution so as to conform more fully to a system of separation of
powers.88 To that extent, the question hour, as it is presently understood in this jurisdiction, departs
from the question period of the parliamentary system. That department heads may not be required to
appear in a question hour does not, however, mean that the legislature is rendered powerless to elicit
information from them in all circumstances. In fact, in light of the absence of a mandatory question
period, the need to enforce Congress’ right to executive information in the performance of its legislative
function becomes more imperative. As Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the
Congress has the right to obtain information from any source—even from officials of departments and
agencies in the executive branch. In the United States there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear separation between the legislative and executive
branches. It is this very separation that makes the congressional right to obtain information from the
executive so essential, if the functions of the Congress as the elected representatives of the people are
adequately to be carried out. The absence of close rapport between the legislative and executive
branches in this country, comparable to those which exist under a parliamentary system, and the
nonexistence in the Congress of an institution such as the British question period have perforce made
reliance by the Congress upon its right to obtain information from the executive essential, if it is
intelligently to perform its legislative tasks. Unless the Congress possesses the right to obtain executive
information, its power of oversight of administration in a system such as ours becomes a power devoid
of most of its practical content, since it depends for its effectiveness solely upon information parceled
out ex gratia by the executive.89 (Emphasis and underscoring supplied)

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be
considered as pertaining to the same power of Congress. One specifically relates to the power to
conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a question hour, the objective of which is
to obtain information in pursuit of Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are implementing the statutes
which it has issued, its right to such information is not as imperative as that of the President to whom,
as Chief Executive, such department heads must give a report of their performance as a matter of duty.
In such instances, Section 22, in keeping with the separation of powers, states that Congress may only
request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is
“in aid of legislation” under Section 21, the appearance is mandatory for the same reasons stated in
Arnault.90

In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent
that it is performed in pursuit of legislation. This is consistent with the intent discerned from the
deliberations of the Constitutional Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and
the lack of it under Section 22 find their basis in the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves
therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are
department heads. Only one executive official may be exempted from this power—the President on
whom executive power is vested, hence, beyond the reach of Congress except through the power of
impeachment. It is based on her being the highest official of the executive branch, and the due respect
accorded to a co-equal branch of government which is sanctioned by a long-standing custom.

By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike
the Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on
the basis not only of separation of powers but also on the fiscal autonomy and the constitutional
independence of the judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker
Arroyo, admitted it during the oral argument upon interpellation of the Chief Justice.

Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now
proceeds to pass on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence
of any reference to inquiries in aid of legislation, must be construed as limited in its application to
appearances of department heads in the question hour contemplated in the provision of said Section 22
of Article VI. The reading is dictated by the basic rule of construction that issuances must be interpreted,
as much as possible, in a way that will render it constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only to
appearances in the question hour, is valid on its face. For under Section 22, Article VI of the Constitution,
the appearance of department heads in the question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of

legislation. Congress is not bound in such instances to respect the refusal of the department head to
appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President
herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of
the President prior to appearing before either house of Congress. The enumeration is broad. It covers all
senior officials of executive departments, all officers of the AFP and the PNP, and all senior national
security officials who, in the judgment of the heads of offices designated in the same section (i.e.
department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are
“covered by the executive privilege.”

The enumeration also includes such other officers as may be determined by the President. Given the
title of Section 2—”Nature, Scope and Coverage of Executive Privilege”—, it is evident that under the
rule of ejusdem generis, the determination by the President under this provision is intended to be based
on a similar finding of coverage under executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually
covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly
invoked in relation to specific categories of information and not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive
privilege, the reference to persons being “covered by the executive privilege” may be read as an
abbreviated way of saying that the person is in possession of information which is, in the judgment of
the head of office concerned, privileged as defined in Section 2(a). The Court shall thus proceed on the
assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is “covered by
the executive privilege,” such official is subjected to the requirement that he first secure the consent of
the President prior to appearing before Congress. This requirement effectively bars the appearance of
the official concerned unless the same is permitted by the President. The proviso allowing the President
to give its consent means nothing more than that the President may reverse a prohibition which already
exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office, authorized
by the President under E.O. 464, or by the President herself, that such official is in possession of
information that is covered by executive privilege. This determination then becomes the basis for the
official’s not showing up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation
must be construed as a declaration to Congress that the President, or a head of office authorized by the
President, has determined that the requested information is privileged, and that the President has not
reversed such determination. Such declaration, however, even without mentioning the term “executive
privilege,” amounts to an implied claim that the information is being withheld by the executive branch,
by authority of the President, on the basis of executive privilege. Verily, there is an implied claim of
privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President
Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail
Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be
informed that officials of the Executive Department invited to appear at the meeting will not be able to
attend the same without the consent of the President, pursuant to Executive Order No. 464 (s. 2005),
entitled “Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On
Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In Aid
Of Legislation Under The Constitution, And For Other Purposes”. Said officials have not secured the
required consent from the President. (Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which these officials are
being requested to be resource persons falls under the recognized grounds of the privilege to justify
their absence. Nor does it expressly state that in view of the lack of consent from the President under
E.O. 464, they cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes
that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the
order means that a determination has been made, by the designated head of office or the President,
that the invited official possesses information that is covered by executive privilege. Thus, although it is
not stated in the letter that such determination has been made, the same must be deemed implied.
Respecting the statement that the invited officials have not secured the consent of the President, it only
means that the President has not reversed the standing prohibition against their appearance before
Congress.

Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive branch, either
through the President or the heads of offices authorized under E.O. 464, has made a determination that
the information required by the Senate is privileged, and that, at the time of writing, there has been no
contrary pronouncement from the President. In fine, an implied claim of privilege has been made by the
executive.

While there is no Philippine case that directly addresses the issue of whether executive privilege may be
invoked against Congress, it is gathered from Chavez v. PEA that certain information in the possession of
the executive may validly be claimed as privileged even against Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is privileged information rooted
in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations
of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are
recognized as confidential. This kind of information cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of decision-making of those
tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant
case.91 (Emphasis and underscoring supplied)

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege. This Court must look further and assess the claim of privilege
authorized by the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the ground
invoked therefor and the particular circumstances surrounding it, there is, in an implied claim of
privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the letter of
respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of E.O. 464 is
not accompanied by any specific allegation of the basis thereof (e.g., whether the information
demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section
2(a) enumerates the types of information that are covered by the privilege under the challenged order,
Congress is left to speculate as to which among them is being referred to by the executive. The
enumeration is not even intended to be comprehensive, but a mere statement of what is included in the
phrase “confidential or classified information between the President and the public officers covered by
this executive order.”

Certainly, Congress has the right to know why the executive considers the requested information
privileged. It does not suffice to merely declare that the President, or an authorized head of office, has
determined that it is so, and that the President has not overturned that determination. Such declaration
leaves Congress in the dark on how the requested information could be classified as privileged. That the
message is couched in terms that, on first impression, do not seem like a claim of privilege only makes it
more pernicious. It threatens to make Congress doubly blind to the question of why the executive
branch is not providing it with the information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose information, must,
therefore, be clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect.92(Underscoring supplied)

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of
determining whether it falls under one of the traditional privileges, or whether, given the circumstances
in which it is made, it should be respected.93 These, in substance, were the same criteria in assessing the
claim of privilege asserted against the Ombudsman in Almonte v. Vasquez 94 and, more in point, against a
committee of the Senate in Senate Select Committee on Presidential Campaign Activities v. Nixon. 95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure
impossible, thereby preventing the Court from balancing such harm against plaintiffs’ needs to
determine whether to override any claims of privilege.96 (Underscoring supplied)

And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this balancing operation. In
stating its objection to claimant’s interrogatories, government asserts, and nothing more, that the
disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is
designed to protect. The government has not shown—nor even alleged—that those who evaluated
claimant’s product were involved in internal policymaking, generally, or in this particular instance.
Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based must be
established. To find these interrogatories objectionable, this Court would have to assume that the
evaluation and classification of claimant’s products was a matter of internal policy formulation, an
assumption in which this Court is unwilling to indulge sua sponte. 98(Emphasis and underscoring
supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that “an agency must provide ‘precise
and certain’ reasons for preserving the confidentiality of requested information.”

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation and description of the
documents within its scope as well as precise and certain reasons for preserving their confidentiality.
Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very
thing sought to be protected. As the affidavit now stands, the Court has little more than its suasponte
speculation with which to weigh the applicability of the claim. An improperly asserted claim of privilege
is no claim of privilege. Therefore, despite the fact that a claim was made by the proper executive as
Reynolds requires, the Court can not recognize the claim in the instant case because it is legally
insufficient to allow the Court to make a just and reasonable determination as to its applicability. To
recognize such a broad claim in which the Defendant has given no precise or compelling reasons to
shield these documents from outside scrutiny, would make a farce of the whole procedure. 101 (Emphasis
and underscoring supplied)

Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege
clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S: 102

We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to
these questions. For it is as true here as it was there, that ‘if (petitioner) had legitimate reasons for
failing to produce the records of the association, a decent respect for the House of Representatives, by
whose authority the subpoenas issued, would have required that (he) state (his) reasons for
noncompliance upon the return of the writ. Such a statement would have given the Subcommittee an
opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the records.
‘To deny the Committee the opportunity to consider the objection or remedy is in itself a contempt of
its authority and an obstruction of its processes. His failure to make any such statement was “a patent
evasion of the duty of one summoned to produce papers before a congressional committee[, and]
cannot be condoned.” (Emphasis and underscoring supplied; citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for the claim with
such particularity as to compel disclosure of the information which the privilege is meant to protect. 103 A
useful analogy in determining the requisite degree of particularity would be the privilege against self-
incrimination. Thus, Hoffman v. U.S.104declares:

The witness is not exonerated from answering merely because he declares that in so doing he would
incriminate himself—his say-so does not of itself establish the hazard of incrimination. It is for the court
to say whether his silence is justified, and to require him to answer if ‘it clearly appears to the court that
he is mistaken.’ However, if the witness, upon interposing his claim, were required to prove the hazard
in the sense in which a claim is usually required to be established in court, he would be compelled to
surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it
need only be evident from the implications of the question, in the setting in which it is asked, that a
responsive answer to the question or an explanation of why it cannot be answered might be dangerous
because injurious disclosure could result.” x xx (Emphasis and underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not
asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely
invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is
woefully insufficient for Congress to determine whether the withholding of information is justified
under the circumstances of each case. It severely frustrates the power of inquiry of Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on
the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not
purport to be conclusive on the other branches of government. It may thus be construed as a mere
expression of opinion by the President regarding the nature and scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged
unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States where, so it claims, only the President can
assert executive privilege to withhold information from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a
certain information is privileged, such determination is presumed to bear the President’s authority and
has the effect of prohibiting the official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such official. These provisions thus
allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive
branch,105 or in those instances where exemption from disclosure is necessary to the discharge of highly
important executive responsibilities.106 The doctrine of executive privilege is thus premised on the fact
that certain informations must, as a matter of necessity, be kept confidential in pursuit of the public
interest. The privilege being, by definition, an exemption from the obligation to disclose information, in
this case to Congress, the necessity must be of such high degree as to outweigh the public interest in
enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is
“By order of the President,” which means that he personally consulted with her. The privilege being an
extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other
words, the President may not authorize her subordinates to exercise such power. There is even less
reason to uphold such authorization in the instant case where the authorization is not explicit but by
mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own
judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the
President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in
order to provide the President or the Executive Secretary with fair opportunity to consider whether the
matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither
the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect
the failure of the official to appear before Congress and may then opt to avail of the necessary legal
means to compel his appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the consent of the
President under Section 3 of E.O. 464 is to ensure “respect for the rights of public officials appearing in
inquiries in aid of legislation.” That such rights must indeed be respected by Congress is an echo from
Article VI Section 21 of the Constitution mandating that “[t]he rights of persons appearing in or affected
by such inquiries shall be respected.”

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied
claims of executive privilege, for which reason it must be invalidated. That such authorization is partly
motivated by the need to ensure respect for such officials does not change the infirm nature of the
authorization itself.
Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the
hearings conducted by it, and not with the demands of citizens for information pursuant to their right to
information on matters of public concern. Petitioners are not amiss in claiming, however, that what is
involved in the present controversy is not merely the legislative power of inquiry, but the right of the
people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which
underlies the power of inquiry and the right of the people to information on matters of public concern.
For one, the demand of a citizen for the production of documents pursuant to his right to information
does not have the same obligatory force as a subpoena ducestecum issued by Congress. Neither does
the right to information grant a citizen the power to exact testimony from government officials. These
powers belong only to Congress and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow, except in
a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their
right to information.

To the extent that investigations in aid of legislation are generally conducted in public, however, any
executive issuance tending to unduly limit disclosures of information in such investigations necessarily
deprives the people of information which, being presumed to be in aid of legislation, is presumed to be
a matter of public concern. The citizens are thereby denied access to information which they can use in
formulating their own opinions on the matter before Congress—opinions which they can then
communicate to their representatives and other government officials through the various legal means
allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be maintained to the end
that the government may perceive and be responsive to the people’s will. Yet, this open dialogue can be
effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently.
Only when the participants in the discussion are aware of the issues and have access to information
relating thereto can such bear fruit.107 (Emphasis and underscoring supplied)

The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in
the sense explained above, just as direct as its violation of the legislature’s power of inquiry.

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is
exempt from the need for publication. On the need for publishing even those statutes that do not
directly apply to people in general, Tañada v. Tuvera states:

The term “laws” should refer to all laws and not only to those of general application, for strictly speaking
all laws relate to the people in general albeit there are some that do not apply to them directly. An
example is a law granting citizenship to a particular individual, like a relative of President Marcos who
was decreed instant naturalization. It surely cannot be said that such a law does not affect the public
although it unquestionably does not apply directly to all the people. The subject of such law is a matter
of public interest which any member of the body politic may question in the political forums or, if he is a
proper party, even in courts of justice.108 (Emphasis and underscoring supplied)

Although the above statement was made in reference to statutes, logic dictates that the challenged
order must be covered by the publication requirement. As explained above, E.O. 464 has a direct effect
on the right of the people to information on matters of public concern. It is, therefore, a matter of public
interest which members of the body politic may question before this Court. Due process thus requires
that the people should have been apprised of this issuance before it was implemented.

Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid
of legislation. If the executive branch withholds such information on the ground that it is privileged, it
must so assert it and state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests
for information without need of clearly asserting a right to do so and/or proffering its reasons therefor.
By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of
legislation is frustrated. That is impermissible. For

[w]hat republican theory did accomplish…was to reverse the old presumption in favor of secrecy, based
on the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on
the doctrine of popular sovereignty. (Underscoring supplied) 109

Resort to any means then by which officials of the executive branch could refuse to divulge information
cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to
inquire into the operations of government, but we shall have given up something of much greater
value—our right as a people to take part in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series
of 2005), “Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on
Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid
of Legislation Under the Constitution, and For Other Purposes,” are declared VOID. Sections 1 and 2(a)
are, however, VALID

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 180643 September 4, 2008

ROMULO L. NERI, petitioner,

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

LEONARDO-DE CASTRO, J.:

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

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

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

A brief review of the facts is imperative.

On September 26, 2007, petitioner appeared before respondent Committees and testified for about
eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"), a project
awarded by the Department of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections
("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the
NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo ("President
Arroyo") of the bribery attempt and that she instructed him not to accept the bribe. However, when probed
further on President Arroyo and petitioner’s discussions relating to the NBN Project, petitioner refused to
answer, invoking "executive privilege." To be specific, petitioner refused to answer questions on: (a)
whether or not President Arroyo followed up the NBN Project, 4 (b) whether or not she directed him to
prioritize it,5 and (c) whether or not she directed him to approve it. 6

Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring
him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive
Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with
petitioner’s testimony on the ground of executive privilege. 7The letter of Executive Secretary Ermita
pertinently stated:

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

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

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

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

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

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

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

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

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

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

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

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

II

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

PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS
PRIVILEGED.

III

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

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

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

CLAIMED CONSTITUTE STATE SECRETS.

B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS

APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL
COMMUNICATIONS PRIVILEGE ARE PRESENT.

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

JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.

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

SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE OF THEIR PRIMARY
FUNCTION TO ENACT LAWS.

E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE

CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY
OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.

IV
 CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS DID NOT
COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER,
CONSIDERING THAT:

A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN

IN SENATE V. ERMITA.

C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR

INTERNAL RULES.

D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION
21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY
PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE
OSG’S INTERVENTION ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE
OPPORTUNITY TO COMMENT.

E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR

PRECIPITATE.

In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision
of this Court. He avers that there is nothing in it that prohibits respondent Committees from investigating
the NBN Project or asking him additional questions. According to petitioner, the Court merely applied the
rule on executive privilege to the facts of the case. He further submits the following contentions: first, the
assailed Decision did not reverse the presumption against executive secrecy laid down in Senate v.
Ermita; second, respondent Committees failed to overcome the presumption of executive privilege
because it appears that they could legislate even without the communications elicited by the three (3)
questions, and they admitted that they could dispense with petitioner’s testimony if certain NEDA
documents would be given to them; third, the requirement of specificity applies only to the privilege for
State, military and diplomatic secrets, not to the necessarily broad and all-encompassing presidential
communications privilege; fourth, there is no right to pry into the President’s thought processes or
exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has
the power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the
failure of the present Senate to publish its Rules of Procedure Governing Inquiries in Aid of
Legislation (Rules) has a vitiating effect on them; eighth, the requirement for a witness to be furnished
advance copy of questions comports with due process and the constitutional mandate that the rights of
witnesses be respected; and ninth, neither petitioner nor respondent has the final say on the matter of
executive privilege, only the Court.

For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement
from the Court that the assailed Orders were issued by respondent Committees pursuant to their
oversight function; hence, there is no reason for them "to make much" of the distinction between Sections
21 and 22, Article VI of the Constitution; (2) presidential communications enjoy a presumptive privilege
against disclosure as earlier held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10;
(3) the communications elicited by the three (3) questions are covered by executive privilege, because all
the elements of the presidential communications privilege are present; (4) the subpoena ad
testificandum issued by respondent Committees to petitioner is fatally defective under existing law and
jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6)
respondent Committees arbitrarily issued the contempt order.

Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008 (granting the
Office of the Solicitor General’s Motion for Leave to Intervene and to Admit Attached Memorandum) only
after the promulgation of the Decision in this case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are as
follows:

(1) whether or not there is a recognized presumptive presidential communications privilege in our
legal system;

(2) whether or not there is factual or legal basis to hold that the communications elicited by the
three (3) questions are covered by executive privilege;

(3) whether or not respondent Committees have shown that the communications elicited by the
three (3) questions are critical to the exercise of their functions; and

(4) whether or not respondent Committees committed grave abuse of discretion in issuing the
contempt order.

We shall discuss these issues seriatim.

There Is a Recognized Presumptive

Presidential Communications Privilege

Respondent Committees ardently argue that the Court’s declaration that presidential communications are
presumptively privileged reverses the "presumption" laid down in Senate v. Ermita11 that "inclines heavily
against executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court
erred in relying on the doctrine in Nixon.

Respondent Committees argue as if this were the first time the presumption in favor of the presidential
communications privilege is mentioned and adopted in our legal system. That is far from the truth. The
Court, in the earlier case of Almonte v. Vasquez,12 affirmed that the presidential communications
privilege is fundamental to the operation of government and inextricably rooted in the separation of
powers under the Constitution. Even Senate v. Ermita,13 the case relied upon by respondent Committees,
reiterated this concept. There, the Court enumerated the cases in which the claim of executive privilege
was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good
Government (PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that "there are certain
types of information which the government may withhold from the public, 16" that there is a "governmental
privilege against public disclosure with respect to state secrets regarding military, diplomatic and other
national security matters";17 and that "the right to information does not extend to matters recognized
as ‘privileged information’ under the separation of powers, by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door Cabinet meetings."18

Respondent Committees’ observation that this Court’s Decision reversed the "presumption that inclines
heavily against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the
said Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a
decision, no specific portion thereof should be isolated and resorted to, but the decision must be
considered in its entirety.19

Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v.
Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The
pertinent portion of the decision in the said case reads:

From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted
 against Congress, the courts, or the public, is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a constitutional concept,
a claim thereof may be valid or not depending on the ground invoked to justify it and the context
in which it is made. Noticeably absent is any recognition that executive officials are exempt from
the duty to disclose information by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure. (Emphasis and underscoring
supplied)

Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption"
being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their
positions in the Executive Branch. This means that when an executive official, who is one of those
mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no
presumption of authorization to invoke executive privilege given by the President to said executive
official, such that the presumption in this situation inclines heavily against executive secrecy and in favor
of disclosure.

Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that
a certain information is privileged, such determination is presumed to bear the President’s
authority and has the effect of prohibiting the official from appearing before Congress, subject
only to the express pronouncement of the President that it is allowing the appearance of such
official. These provisions thus allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the
executive branch, or in those instances where exemption from disclosure is necessary to the
discharge of highly important executive responsibilities. The doctrine of executive privilege is thus
premised on the fact that certain information must, as a matter of necessity, be kept confidential
in pursuit of the public interest. The privilege being, by definition, an exemption from the
obligation to disclose information, in this case to Congress, the necessity must be of such high
degree as to outweigh the public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive Secretary
to invoke the privilege on her behalf, in which case the Executive Secretary must state that the
authority is "By order of the President", which means that he personally consulted with her. The
privilege being an extraordinary power, it must be wielded only by the highest official in the
executive hierarchy. In other words, the President may not authorize her subordinates to exercise
such power. There is even less reason to uphold such authorization in the instant case where the
authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further
invalid on this score.

The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the
President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive
privilege on a specific matter involving an executive agreement between the Philippines and China, which
was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate
Committees’ investigation. Thus, the factual setting of this case markedly differs from that passed upon in
Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the
ruling in Senate v. Ermita,21 to wit:

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior
to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in
light of how it has been defined and used in the legal literature of the United States.

Schwart defines executive privilege as "the power of the Government to withhold information
from the public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the
President and high-level executive branch officers to withhold information from Congress, the
courts, and ultimately the public." x x x In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same
privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the
basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations, for example, he
has all the values to which we accord deference for the privacy of all citizens and, added to those
values, is the necessity for protection of the public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making. A President and those who assist him must be
free to explore alternatives in the process of shaping policies and making decisions and to do so
in a way many would be unwilling to express except privately. These are the considerations
justifying a presumptive privilege for Presidential communications. The privilege is
fundamental to the operation of government and inextricably rooted in the separation of
powers under the Constitution x x x " (Emphasis and italics supplied)

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential
communication," which was recognized early on in Almonte v. Vasquez. To construe the passage
in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees, referring to
the non-existence of a "presumptive authorization" of an executive official, to mean that the "presumption"
in favor of executive privilege "inclines heavily against executive secrecy and in favor of disclosure" is to
distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction.

Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the Executive
Department and the Legislative Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the President’s subordinate officials, as
follows:

When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the
mere fact that they are department heads. Only one executive official may be exempted from
this power - the President on whom executive power is vested, hence, beyond the reach of
Congress except through the power of impeachment. It is based on he being the highest official
of the executive branch, and the due respect accorded to a co-equal branch of governments
which is sanctioned by a long-standing custom. (Underscoring supplied)

Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the
President on a matter clearly within the domain of the Executive, the said presumption dictates that the
same be recognized and be given preference or priority, in the absence of proof of a compelling or critical
need for disclosure by the one assailing such presumption. Any construction to the contrary will render
meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. In
fact, Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege
for Presidential communications."23

II

There Are Factual and Legal Bases to

Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege

Respondent Committees claim that the communications elicited by the three (3) questions are not
covered by executive privilege because the elements of the presidential communications privilege are
not present.

A. The power to enter into an executive agreement is a "quintessential and non-delegable

presidential power."

First, respondent Committees contend that the power to secure a foreign loan does not relate to a
"quintessential and non-delegable presidential power," because the Constitution does not vest it in the
President alone, but also in the Monetary Board which is required to give its prior concurrence and to
report to Congress.

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make such power less
executive. "Quintessential" is defined as the most perfect embodiment of something, the concentrated
essence of substance.24 On the other hand, "non-delegable" means that a power or duty cannot be
delegated to another or, even if delegated, the responsibility remains with the obligor. 25 The power to
enter into an executive agreement is in essence an executive power. This authority of the President to
enter into executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence.26 Now, the fact that the President has to secure the prior
concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision
before contracting or guaranteeing foreign loans, does not diminish the executive nature of the power.

The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of
government by no means prescribes absolute autonomy in the discharge by each branch of that part of
the governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks
and balances, which has been carefully calibrated by the Constitution to temper the official acts of each of
these three branches. Thus, by analogy, the fact that certain legislative acts require action from the
President for their validity does not render such acts less legislative in nature. A good example is the
power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by
Congress shall, before it becomes a law, be presented to the President who shall approve or veto the
same. The fact that the approval or vetoing of the bill is lodged with the President does not render the
power to pass law executive in nature. This is because the power to pass law is generally a quintessential
and non-delegable power of the Legislature. In the same vein, the executive power to enter or not to enter
into a contract to secure foreign loans does not become less executive in nature because of conditions
laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged
in the Office of the President.

B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the
presidential communications privilege but, in any case, it is not conclusive.

Second, respondent Committees also seek reconsideration of the application of the "doctrine of
operational proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential
communications privilege to communications between those who are ‘operationally proximate’ to the
President but who may have "no direct communications with her."

It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case27precisely to limit the scope of the presidential communications privilege. The U.S. court was aware
of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined its reach by
explicitly confining it to White House staff, and not to staffs of the agencies, and then only to White House
staff that has "operational proximity" to direct presidential decision-making, thus:

We are aware that such an extension, unless carefully circumscribed to accomplish the purposes
of the privilege, could pose a significant risk of expanding to a large swath of the executive
branch a privilege that is bottomed on a recognition of the unique role of the President. In order to
limit this risk, the presidential communications privilege should be construed as narrowly as is
consistent with ensuring that the confidentiality of the President’s decision-making process is
adequately protected. Not every person who plays a role in the development of presidential
advice, no matter how remote and removed from the President, can qualify for the
privilege. In particular, the privilege should not extend to staff outside the White House in
executive branch agencies. Instead, the privilege should apply only to communications
authored or solicited and received by those members of an immediate White House advisor’s
staff who have broad and significant responsibility for investigation and formulating the advice to
be given the President on the particular matter to which the communications relate. Only
communications at that level are close enough to the President to be revelatory of his
deliberations or to pose a risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it
is "operational proximity" to the President that matters in determining whether "[t]he
President’s confidentiality interests" is implicated). (Emphasis supplied)

In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear
apparently entertained by respondents) is absent because the official involved here is a member of the
Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of
her official family. Nevertheless, in circumstances in which the official involved is far too remote, this Court
also mentioned in the Decision the organizational test laid down in Judicial Watch, Inc. v. Department of
Justice.28 This goes to show that the operational proximity test used in the Decision is not considered
conclusive in every case. In determining which test to use, the main consideration is to limit the
availability of executive privilege only to officials who stand proximate to the President, not only by reason
of their function, but also by reason of their positions in the Executive’s organizational structure. Thus,
respondent Committees’ fear that the scope of the privilege would be unnecessarily expanded with the
use of the operational proximity test is unfounded.

C. The President’s claim of executive privilege is not merely based on a generalized interest; and
in balancing respondent Committees’ and the President’s clashing interests, the Court did not
disregard the 1987 Constitutional provisions on government transparency, accountability and
disclosure of information.

Third, respondent Committees claim that the Court erred in upholding the President’s invocation, through
the Executive Secretary, of executive privilege because (a) between respondent Committees’ specific and
demonstrated need and the President’s generalized interest in confidentiality, there is a need to strike the
balance in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of
the 1987 Philippine Constitution on government transparency, accountability and disclosure of
information, specifically, Article III, Section 7; 29 Article II, Sections 2430 and 28;31 Article XI, Section
1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37

It must be stressed that the President’s claim of executive privilege is not merely founded on her
generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita
specified presidential communications privilege in relation to diplomatic and economic relations
with another sovereign nation as the bases for the claim. Thus, the Letter stated:
 The context in which executive privilege is being invoked is that the information sought to
be disclosed might impair our diplomatic as well as economic relations with the People’s
Republic of China. Given the confidential nature in which this information were conveyed to the
President, he cannot provide the Committee any further details of these conversations, without
disclosing the very thing the privilege is designed to protect. (emphasis supplied)

Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons
for the claim with such particularity as to compel disclosure of the information which the privilege is meant
to protect. This is a matter of respect for a coordinate and co-equal department.

It is easy to discern the danger that goes with the disclosure of the President’s communication with her
advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product
of the meeting of minds between officials of the Philippines and China. Whatever the President says
about the agreement - particularly while official negotiations are ongoing - are matters which China will
surely view with particular interest. There is danger in such kind of exposure. It could adversely affect our
diplomatic as well as economic relations with the People’s Republic of China. We reiterate the importance
of secrecy in matters involving foreign negotiations as stated in United States v. Curtiss-Wright Export
Corp., 38 thus:

The nature of foreign negotiations requires caution, and their success must often depend on
secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands,
or eventual concessions which may have been proposed or contemplated would be extremely
impolitic, for this might have a pernicious influence on future negotiations or produce immediate
inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such
caution and secrecy was one cogent reason for vesting the power of making treaties in the
President, with the advice and consent of the Senate, the principle on which the body was formed
confining it to a small number of members. To admit, then, a right in the House of
Representatives to demand and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous precedent.

US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to
a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et
al. v. Thomas G. Aquino, et al.39upheld the privileged character of diplomatic negotiations. In Akbayan,
the Court stated:

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In
discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that
"information on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest." Even
earlier, the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v.
Manglapus wherein the Court discussed the reasons for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s
representatives on the state of the then on-going negotiations of the RP-US Military Bases
Agreement. The Court denied the petition, stressing that "secrecy of negotiations with foreign
countries is not violative of the constitutional provisions of freedom of speech or of the press
nor of the freedom of access to information." The Resolution went on to state, thus:

The nature of diplomacy requires centralization of authority and expedition of

decision which are inherent in executive action. Another essential characteristic of
diplomacy is its confidential nature.Although much has been said about "open" and
 "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and
Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson:

"A complicated negotiation …cannot be carried through without many,

many private talks and discussion, man to man; many tentative
suggestions and proposals. Delegates from other countries come and tell
you in confidence of their troubles at home and of their differences with
other countries and with other delegates; they tell you of what they would
do under certain circumstances and would not do under other
circumstances… If these reports… should become public… who would
ever trust American Delegations in another conference? (United States
Department of State, Press Releases, June 7, 1930, pp. 282-284)

xxxx

There is frequent criticism of the secrecy in which negotiation with foreign powers
on nearly all subjects is concerned. This, it is claimed, is incompatible with the
substance of democracy. As expressed by one writer, "It can be said that there is no
more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the
Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his efforts for the
conclusion of the World War declared that we must have "open covenants, openly arrived
at." He quickly abandoned his thought.

No one who has studied the question believes that such a method of publicity is
possible. In the moment that negotiations are started, pressure groups attempt to
"muscle in." An ill-timed speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides would quickly lead to a
widespread propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for discussion before
it is approved. (The New American Government and Its Works, James T. Young, 4th
Edition, p. 194) (Emphasis and underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export
Corp. that the President is the sole organ of the nation in its negotiations with foreign
countries,viz:

"x x x In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of the
nation. He makes treaties with the advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is
powerless to invade it. As Marshall said in his great arguments of March 7, 1800, in the
House of Representatives, "The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations." Annals, 6th
Cong., col. 613… (Emphasis supplied; underscoring in the original)

Considering that the information sought through the three (3) questions subject of this Petition involves
the President’s dealings with a foreign nation, with more reason, this Court is wary of approving the view
that Congress may peremptorily inquire into not only official, documented acts of the President but even
her confidential and informal discussions with her close advisors on the pretext that said questions serve
some vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted
consequences of subjecting a Chief Executive to unrestricted congressional inquiries done with increased
frequency and great publicity. No Executive can effectively discharge constitutional functions in the face
of intense and unchecked legislative incursion into the core of the President’s decision-making process,
which inevitably would involve her conversations with a member of her Cabinet.
With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of
the people to information and public accountability and transparency, the Court finds nothing in these
arguments to support respondent Committees’ case.

There is no debate as to the importance of the constitutional right of the people to information and the
constitutional policies on public accountability and transparency. These are the twin postulates vital to the
effective functioning of a democratic government. The citizenry can become prey to the whims and
caprices of those to whom the power has been delegated if they are denied access to information. And
the policies on public accountability and democratic government would certainly be mere empty words if
access to such information of public concern is denied.

In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions,
did not in any way curb the public’s right to information or diminish the importance of public accountability
and transparency.

This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation.
There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the
NBN Project. They could continue the investigation and even call petitioner Neri to testify again. He
himself has repeatedly expressed his willingness to do so. Our Decision merely excludes from the scope
of respondents’ investigation the three (3) questions that elicit answers covered by executive privilege
and rules that petitioner cannot be compelled to appear before respondents to answer the said questions.
We have discussed the reasons why these answers are covered by executive privilege. That there is a
recognized public interest in the confidentiality of such information is a recognized principle in other
democratic States. To put it simply, the right to information is not an absolute right.

Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to
information. By their wording, the intention of the Framers to subject such right to the regulation of the law
is unmistakable. The highlighted portions of the following provisions show the obvious limitations on the
right to information, thus:

Article III, Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.

Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest. (Emphasis supplied)

In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific
laws prescribing the exact limitations within which the right may be exercised or the correlative state duty
may be obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1)
national security matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other
confidential information. National security matters include state secrets regarding military and diplomatic
matters, as well as information on inter-government exchanges prior to the conclusion of treaties and
executive agreements. It was further held that even where there is no need to protect such state
secrets, they must be "examined in strict confidence and given scrupulous protection."

Incidentally, the right primarily involved here is the right of respondent Committees to obtain information
allegedly in aid of legislation, not the people’s right to public information. This is the reason why we
stressed in the assailed Decision the distinction between these two rights. As laid down in Senate v.
Ermita, "the demand of a citizen for the production of documents pursuant to his right to information does
not have the same obligatory force as a subpoena duces tecum issued by Congress" and "neither does
the right to information grant a citizen the power to exact testimony from government officials." As pointed
out, these rights belong to Congress, not to the individual citizen. It is worth mentioning at this juncture
that the parties here are respondent Committees and petitioner Neri and that there was no prior request
for information on the part of any individual citizen. This Court will not be swayed by attempts to blur the
distinctions between the Legislature's right to information in a legitimate legislative inquiry and the public's
right to information.

For clarity, it must be emphasized that the assailed Decision did not enjoin respondent
Committees from inquiring into the NBN Project. All that is expected from them is to respect
matters that are covered by executive privilege.

III.

Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions

In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on
the purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.

At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
Committees’ inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees’
power to investigate the NBN Project in aid of legislation. However, this Court cannot uphold the view that
when a constitutionally guaranteed privilege or right is validly invoked by a witness in the course of a
legislative investigation, the legislative purpose of respondent Committees’ questions can be sufficiently
supported by the expedient of mentioning statutes and/or pending bills to which their inquiry as a whole
may have relevance. The jurisprudential test laid down by this Court in past decisions on executive
privilege is that the presumption of privilege can only be overturned by a showing of compelling
need for disclosure of the information covered by executive privilege.

In the Decision, the majority held that "there is no adequate showing of a compelling need that would
justify the limitation of the privilege and of the unavailability of the information elsewhere by an
appropriate investigating authority." In the Motion for Reconsideration, respondent Committees argue that
the information elicited by the three (3) questions are necessary in the discharge of their legislative
functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and
corruption.

We remain unpersuaded by respondents’ assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests
and it is necessary to resolve the competing interests in a manner that would preserve the essential
functions of each branch. There, the Court weighed between presidential privilege and the legitimate
claims of the judicial process. In giving more weight to the latter, the Court ruled that the President's
generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending
criminal trial.

The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further
ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting
opinion, as follows:

"... this presumptive privilege must be considered in light of our historic commitment to the rule of
law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal
justice) is that guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at
 88, 55 S.Ct., at 633. We have elected to employ an adversary system of criminal justice in which
the parties contest all issues before a court of law. The need to develop all relevant facts in the
adversary system is both fundamental and comprehensive. The ends of criminal justice
would be defeated if judgments were to be founded on a partial or speculative
presentation of the facts. The very integrity of the judicial system and public confidence in
the system depend on full disclosure of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to the function of courts that
compulsory process be available for the production of evidence needed either by the
prosecution or by the defense.

xxx xxx xxx

The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial
the right 'to be confronted with the witness against him' and 'to have compulsory
process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment also guarantees
that no person shall be deprived of liberty without due process of law. It is the manifest
duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all
relevant and admissible evidence be produced.

In this case we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of the President's responsibilities against the
inroads of such a privilege on the fair administration of criminal justice. (emphasis
supplied)

xxx xxx xxx

...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal
trial would cut deeply into the guarantee of due process of law and gravely impair the
basic function of the courts. A President's acknowledged need for confidentiality in the
communications of his office is general in nature, whereas the constitutional need for
production of relevant evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of justice. Without access to
specific facts a criminal prosecution may be totally frustrated. The President's broad interest
in confidentiality of communication will not be vitiated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for
use in a criminal trial is based only on the generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due process of law in the fair administration of
criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific
need for evidence in a pending criminal trial. (emphasis supplied)

In the case at bar, we are not confronted with a court’s need for facts in order to adjudge liability in a
criminal case but rather with the Senate’s need for information in relation to its legislative functions. This
leads us to consider once again just how critical is the subject information in the discharge of respondent
Committees’ functions. The burden to show this is on the respondent Committees, since they seek to
intrude into the sphere of competence of the President in order to gather information which, according to
said respondents, would "aid" them in crafting legislation.

Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the nature of a
legislative inquiry in aid of legislation in this wise:
 The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on
whether the subpoenaed materials are critical to the performance of its legislative functions.
There is a clear difference between Congress' legislative tasks and the responsibility of a grand
jury, or any institution engaged in like functions. While fact-finding by a legislative committee
is undeniably a part of its task, legislative judgments normally depend more on the
predicted consequences of proposed legislative actions and their political acceptability,
than on precise reconstruction of past events; Congress frequently legislates on the basis of
conflicting information provided in its hearings. In contrast, the responsibility of the grand jury
turns entirely on its ability to determine whether there is probable cause to believe that certain
named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one
of those crimes is perjury concerning the content of certain conversations, the grand jury's need
for the most precise evidence, the exact text of oral statements recorded in their original form, is
undeniable. We see no comparable need in the legislative process, at least not in the
circumstances of this case. Indeed, whatever force there might once have been in the
Committee's argument that the subpoenaed materials are necessary to its legislative judgments
has been substantially undermined by subsequent events. (Emphasis supplied)

Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or
demonstratively critical and specific need for facts which is so essential to the judicial power to adjudicate
actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the
instant case, which unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate
Branches of the Government.

Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive
and the Legislative Branches is the recognized existence of the presumptive presidential communications
privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which
states:

A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified
presumption in favor of the Presidential communications privilege. As shown in the previous
discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select
Committee on Presidential Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals,
as well as subsequent cases all recognize that there is a presumptive privilege in favor of
Presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a
presumption in favor of confidentiality of Presidential communications.

The presumption in favor of Presidential communications puts the burden on the respondent Senate
Committees to overturn the presumption by demonstrating their specific need for the information to be
elicited by the answers to the three (3) questions subject of this case, to enable them to craft legislation.
Here, there is simply a generalized assertion that the information is pertinent to the exercise of the power
to legislate and a broad and non-specific reference to pending Senate bills. It is not clear what matters
relating to these bills could not be determined without the said information sought by the three (3)
questions. As correctly pointed out by the Honorable Justice Dante O. Tinga in his Separate Concurring
Opinion:

…If respondents are operating under the premise that the president and/or her executive
officials have committed wrongdoings that need to be corrected or prevented from
recurring by remedial legislation, the answer to those three questions will not necessarily
bolster or inhibit respondents from proceeding with such legislation. They could easily
presume the worst of the president in enacting such legislation.

For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies
can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly,
during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted
that the Senate could still come up with legislations even without petitioner answering the three (3)
questions. In other words, the information being elicited is not so critical after all. Thus:

CHIEF JUSTICE PUNO

So can you tell the Court how critical are these questions to the lawmaking function of the
Senate. For instance, question Number 1 whether the President followed up the NBN
project. According to the other counsel this question has already been asked, is that
correct?

ATTY. AGABIN

Well, the question has been asked but it was not answered, Your Honor.

CHIEF JUSTICE PUNO

Yes. But my question is how critical is this to the lawmaking function of the Senate?

ATTY. AGABIN

I believe it is critical, Your Honor.

CHIEF JUSTICE PUNO

Why?

ATTY. AGABIN

For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like
to indorse a Bill to include Executive Agreements had been used as a device to the
circumventing the Procurement Law.

CHIEF JUSTICE PUNO

But the question is just following it up.

ATTY. AGABIN

I believe that may be the initial question, Your Honor, because if we look at this problem
in its factual setting as counsel for petitioner has observed, there are intimations of a
bribery scandal involving high government officials.

CHIEF JUSTICE PUNO

Again, about the second question, were you dictated to prioritize this ZTE, is that critical
to the lawmaking function of the Senate? Will it result to the failure of the Senate to
cobble a Bill without this question?

ATTY. AGABIN

I think it is critical to lay the factual foundations for a proposed amendment to the
Procurement Law, Your Honor, because the petitioner had already testified that he was
 offered a P200 Million bribe, so if he was offered a P200 Million bribe it is possible that
other government officials who had something to do with the approval of the contract
would be offered the same amount of bribes.

CHIEF JUSTICE PUNO

Again, that is speculative.

ATTY. AGABIN

That is why they want to continue with the investigation, Your Honor.

CHIEF JUSTICE PUNO

How about the third question, whether the President said to go ahead and approve the
project after being told about the alleged bribe. How critical is that to the lawmaking
function of the Senate? And the question is may they craft a Bill a remedial law without
forcing petitioner Neri to answer this question?

ATTY. AGABIN

Well, they can craft it, Your Honor, based on mere speculation. And sound legislation
requires that a proposed Bill should have some basis in fact. 42

The failure of the counsel for respondent Committees to pinpoint the specific need for the information
sought or how the withholding of the information sought will hinder the accomplishment of their legislative
purpose is very evident in the above oral exchanges. Due to the failure of the respondent Committees to
successfully discharge this burden, the presumption in favor of confidentiality of presidential
communication stands. The implication of the said presumption, like any other, is to dispense with the
burden of proof as to whether the disclosure will significantly impair the President’s performance of her
function. Needless to state this is assumed, by virtue of the presumption.

Anent respondent Committees’ bewailing that they would have to "speculate" regarding the questions
covered by the privilege, this does not evince a compelling need for the information sought.
Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon 43 held that while fact-
finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend
more on the predicted consequences of proposed legislative actions and their political acceptability than
on a precise reconstruction of past events. It added that, normally, Congress legislates on the basis of
conflicting information provided in its hearings. We cannot subscribe to the respondent Committees’ self-
defeating proposition that without the answers to the three (3) questions objected to as privileged, the
distinguished members of the respondent Committees cannot intelligently craft legislation.

Anent the function to curb graft and corruption, it must be stressed that respondent Committees’ need for
information in the exercise of this function is not as compelling as in instances when the purpose of the
inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight function
of Congress.44 And if this is the primary objective of respondent Committees in asking the three (3)
questions covered by privilege, it may even contradict their claim that their purpose is legislative in nature
and not oversight. In any event, whether or not investigating graft and corruption is a legislative or
oversight function of Congress, respondent Committees’ investigation cannot transgress bounds set by
the Constitution.

In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:

 The "allocation of constitutional boundaries" is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case, "the political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does away with the
applicability of the principle in appropriate cases. 46 (Emphasis supplied)

There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not
really ‘in aid of legislation’ because it is not related to a purpose within the jurisdiction of Congress,
since the aim of the investigation is to find out whether or not the relatives of the President or Mr.
Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a
matter that appears more within the province of the courts rather than of the
Legislature."47 (Emphasis and underscoring supplied)

The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of
the President.48While it may be a worthy endeavor to investigate the potential culpability of high
government officials, including the President, in a given government transaction, it is simply not a task for
the Senate to perform. The role of the Legislature is to make laws, not to determine anyone’s guilt of a
crime or wrongdoing. Our Constitution has not bestowed upon the Legislature the latter role. Just as the
Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute.

Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for
truth," which in respondent Committees’ view appears to be equated with the search for persons
responsible for "anomalies" in government contracts.

No matter how noble the intentions of respondent Committees are, they cannot assume the power
reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime or
illegal activity, the investigation of the role played by each official, the determination of who should be
haled to court for prosecution and the task of coming up with conclusions and finding of facts regarding
anomalies, especially the determination of criminal guilt, are not functions of the Senate. Congress is
neither a law enforcement nor a trial agency. Moreover, it bears stressing that no inquiry is an end in
itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e. legislation.
Investigations conducted solely to gather incriminatory evidence and "punish" those investigated are
indefensible. There is no Congressional power to expose for the sake of exposure.49 In this regard, the
pronouncement in Barenblatt v. United States50 is instructive, thus:

Broad as it is, the power is not, however, without limitations. Since Congress may only
investigate into the areas in which it may potentially legislate or appropriate, it cannot inquire into
matters which are within the exclusive province of one of the other branches of the government.
Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively
the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to
the Executive. (Emphasis supplied.)

At this juncture, it is important to stress that complaints relating to the NBN Project have already been
filed against President Arroyo and other personalities before the Office of the Ombudsman. Under our
Constitution, it is the Ombudsman who has the duty "to investigate any act or omission of any public
official, employee, office or agency when such act or omission appears to be illegal, unjust,
improper, or inefficient."51 The Office of the Ombudsman is the body properly equipped by the
Constitution and our laws to preliminarily determine whether or not the allegations of anomaly are true
and who are liable therefor. The same holds true for our courts upon which the Constitution reposes the
duty to determine criminal guilt with finality. Indeed, the rules of procedure in the Office of the
Ombudsman and the courts are well-defined and ensure that the constitutionally guaranteed rights
of all persons, parties and witnesses alike, are protected and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of their
investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of
government. Thus, the Legislature’s need for information in an investigation of graft and corruption cannot
be deemed compelling enough to pierce the confidentiality of information validly covered by executive
privilege. As discussed above, the Legislature can still legislate on graft and corruption even without the
information covered by the three (3) questions subject of the petition.

Corollarily, respondent Committees justify their rejection of petitioner’s claim of executive privilege on the
ground that there is no privilege when the information sought might involve a crime or illegal
activity, despite the absence of an administrative or judicial determination to that effect.
Significantly, however, in Nixon v. Sirica,52 the showing required to overcome the presumption favoring
confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material
might reveal, but, instead, on the nature and appropriateness of the function in the performance of
which the material was sought, and the degree to which the material was necessary to its
fulfillment.

Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v.
Nixon does not apply to the case at bar because, unlike in the said case, no impeachment proceeding
has been initiated at present. The Court is not persuaded. While it is true that no impeachment
proceeding has been initiated, however, complaints relating to the NBN Project have already been filed
against President Arroyo and other personalities before the Office of the Ombudsman. As the Court has
said earlier, the prosecutorial and judicial arms of government are the bodies equipped and mandated by
the Constitution and our laws to determine whether or not the allegations of anomaly in the NBN Project
are true and, if so, who should be prosecuted and penalized for criminal conduct.

Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence
essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate
Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of evidence
applicable to judicial proceedings which do not affect substantive rights need not be observed by the
Committee." Court rules which prohibit leading, hypothetical, or repetitive questions or questions calling
for a hearsay answer, to name a few, do not apply to a legislative inquiry. Every person, from the highest
public official to the most ordinary citizen, has the right to be presumed innocent until proven guilty in
proper proceedings by a competent court or body.

IV

Respondent Committees Committed Grave

Abuse of Discretion in Issuing the Contempt Order

Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt
order because (1) there is no legitimate claim of executive privilege; (2) they did not violate the
requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance with their
internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the Constitution
requiring the publication of their Rules; and (5) their issuance of the contempt order is not arbitrary or
precipitate.

We reaffirm our earlier ruling.

The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we
see no reason to discuss it once again.

Respondent Committees’ second argument rests on the view that the ruling in Senate v. Ermita, requiring
invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry"
along with the "usual indication of the subject of inquiry and the questions relative to and in furtherance
thereof" is not provided for by the Constitution and is merely an obiter dictum.

On the contrary, the Court sees the rationale and necessity of compliance with these requirements.

An unconstrained congressional investigative power, like an unchecked Executive, generates its own
abuses. Consequently, claims that the investigative power of Congress has been abused (or has the
potential for abuse) have been raised many times.53 Constant exposure to congressional subpoena takes
its toll on the ability of the Executive to function effectively. The requirements set forth in Senate v.
Ermita are modest mechanisms that would not unduly limit Congress’ power. The legislative inquiry must
be confined to permissible areas and thus, prevent the "roving commissions" referred to in the U.S.
case, Kilbourn v. Thompson.54 Likewise, witnesses have their constitutional right to due process. They
should be adequately informed what matters are to be covered by the inquiry. It will also allow them to
prepare the pertinent information and documents. To our mind, these requirements concede too little
political costs or burdens on the part of Congress when viewed vis-à-vis the immensity of its power of
inquiry. The logic of these requirements is well articulated in the study conducted by William P.
Marshall,55 to wit:

A second concern that might be addressed is that the current system allows committees to
continually investigate the Executive without constraint. One process solution addressing this
concern is to require each investigation be tied to a clearly stated purpose. At present, the
charters of some congressional committees are so broad that virtually any matter involving the
Executive can be construed to fall within their province. Accordingly, investigations can proceed
without articulation of specific need or purpose. A requirement for a more precise charge in order
to begin an inquiry should immediately work to limit the initial scope of the investigation and
should also serve to contain the investigation once it is instituted. Additionally, to the extent
clear statements of rules cause legislatures to pause and seriously consider the
constitutional implications of proposed courses of action in other areas, they would serve
that goal in the context of congressional investigations as well.

The key to this reform is in its details. A system that allows a standing committee to
simply articulate its reasons to investigate pro forma does no more than imposes minimal
drafting burdens. Rather, the system must be designed in a manner that imposes actual
burdens on the committee to articulate its need for investigation and allows for meaningful
debate about the merits of proceeding with the investigation.(Emphasis supplied)

Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable demand that
should have been granted by respondent Committees.

Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to
any pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the
subpoena merely commanded him to "testify on what he knows relative to the subject matter under
inquiry."

Anent the third argument, respondent Committees contend that their Rules of Procedure Governing
Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is true that this
Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of
government, however, when a constitutional requirement exists, the Court has the duty to look into
Congress’ compliance therewith. We cannot turn a blind eye to possible violations of the Constitution
simply out of courtesy. In this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening, thus:

"Cases both here and abroad, in varying forms of expression, all deny to the courts the power to
inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own
 rules, in the absence of showing that there was a violation of a constitutional provision or the
rights of private individuals.

United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution empowers each
House to determine its rules of proceedings. It may not by its rules ignore constitutional
restraints or violate fundamental rights, and there should be a reasonable relation between
the mode or method of proceeding established by the rule and the result which is sought
to be attained."

In the present case, the Court’s exercise of its power of judicial review is warranted because there
appears to be a clear abuse of the power of contempt on the part of respondent Committees. Section 18
of the Rules provides that:

"The Committee, by a vote of majority of all its members, may punish for contempt any witness
before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer
proper questions by the Committee or any of its members." (Emphasis supplied)

In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order
because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were
present. This number could hardly fulfill the majority requirement needed by respondent Committee on
Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators
and respondent Committee on National Defense and Security which has a membership of eighteen (18)
Senators. With respect to respondent Committee on Trade and Commerce which has a membership of
nine (9) Senators, only three (3) members were present. 57 These facts prompted us to quote in the
Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the
former raised the issue of lack of the required majority to deliberate and vote on the contempt order.

When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis
Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the
Senators effectively signed for the Senate in plenary session. 58

Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is
flawed. Instead of being submitted to a full debate by all the members of the respondent Committees, the
contempt order was prepared and thereafter presented to the other members for signing. As a result, the
contempt order which was issued on January 30, 2008 was not a faithful representation of the
proceedings that took place on said date. Records clearly show that not all of those who signed the
contempt order were present during the January 30, 2008 deliberation when the matter was taken up.

Section 21, Article VI of the Constitution states that:

The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The
rights of person appearing in or affected by such inquiries shall be respected. (Emphasis
supplied)

All the limitations embodied in the foregoing provision form part of the witness’ settled expectation. If the
limitations are not observed, the witness’ settled expectation is shattered. Here, how could there be a
majority vote when the members in attendance are not enough to arrive at such majority? Petitioner has
the right to expect that he can be cited in contempt only through a majority vote in a proceeding in which
the matter has been fully deliberated upon. There is a greater measure of protection for the witness when
the concerns and objections of the members are fully articulated in such proceeding. We do not believe
that respondent Committees have the discretion to set aside their rules anytime they wish. This is
especially true here where what is involved is the contempt power. It must be stressed that the Rules are
not promulgated for their benefit. More than anybody else, it is the witness who has the highest stake in
the proper observance of the Rules.

Having touched the subject of the Rules, we now proceed to respondent Committees’ fourth argument.
Respondent Committees argue that the Senate does not have to publish its Rules because the same was
published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not
required to republish the Rules, unless the same is repealed or amended.

On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly,
there is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with
each national election or change in the composition of its members. However, in the conduct of its day-to-
day business the Senate of each Congress acts separately and independently of the Senate of the
Congress before it. The Rules of the Senate itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in
the same status.

All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if present for the first time.
(emphasis supplied)

Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even
legislative investigations, of the Senate of a particular Congress are considered terminated upon the
expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up
such unfinished matters, not in the same status, but as if presented for the first time. The logic and
practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress
(which will typically have a different composition as that of the previous Congress) should not be bound
by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body
even with respect to the conduct of its business, then pending matters will not be deemed terminated with
the expiration of one Congress but will, as a matter of course, continue into the next Congress with the
same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct
of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate’s main rules of
procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the preceding elections
shall begin their term of office, the President may endorse the Rules to the appropriate committee
for amendment or revision.

The Rules may also be amended by means of a motion which should be presented at least one
day before its consideration, and the vote of the majority of the Senators present in the session
shall be required for its approval. (emphasis supplied)

RULE LII
DATE OF TAKING EFFECT
 SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force
until they are amended or repealed. (emphasis supplied)

Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate
after an election and the possibility of the amendment or revision of the Rules at the start of each session
in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended to be valid from the
date of their adoption until they are amended or repealed. Such language is conspicuously absent from
the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two
(2) newspapers of general circulation." 59 The latter does not explicitly provide for the continued effectivity
of such rules until they are amended or repealed. In view of the difference in the language of the two sets
of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the
next Congress. The Senate of the next Congress may easily adopt different rules for its legislative
inquiries which come within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate
to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules
clearly state that the same shall be effective in subsequent Congresses or until they are amended or
repealed to sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the
next Congress, it could have easily adopted the same language it had used in its main rules regarding
effectivity.

Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings
conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights
of witnesses should be considered null and void, considering that the rationale for the publication is to
protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such
violation, orders and proceedings are considered valid and effective.

Respondent Committees’ last argument is that their issuance of the contempt order is not precipitate or
arbitrary. Taking into account the totality of circumstances, we find no merit in their argument.

As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of
respondent Committees, petitioner did not assume that they no longer had any other questions for him.
He repeatedly manifested his willingness to attend subsequent hearings and respond to new matters. His
only request was that he be furnished a copy of the new questions in advance to enable him to
adequately prepare as a resource person. He did not attend the November 20, 2007 hearing because
Executive Secretary Ermita requested respondent Committees to dispense with his testimony on the
ground of executive privilege. Note that petitioner is an executive official under the direct control and
supervision of the Chief Executive. Why punish petitioner for contempt when he was merely directed by
his superior? Besides, save for the three (3) questions, he was very cooperative during the September
26, 2007 hearing.

On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling
on Executive Secretary Ermita’s claim of executive privilege, they curtly dismissed it as unsatisfactory and
ordered the arrest of petitioner. They could have informed petitioner of their ruling and given him time to
decide whether to accede or file a motion for reconsideration. After all, he is not just an ordinary witness;
he is a high- ranking official in a co-equal branch of government. He is an alter ego of the President. The
same haste and impatience marked the issuance of the contempt order, despite the absence of the
majority of the members of the respondent Committees, and their subsequent disregard of petitioner’s
motion for reconsideration alleging the pendency of his petition for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political
branches of government. In a free and democratic society, the interests of these branches inevitably
clash, but each must treat the other with official courtesy and respect. This Court wholeheartedly concurs
with the proposition that it is imperative for the continued health of our democratic institutions that we
preserve the constitutionally mandated checks and balances among the different branches of
government.

In the present case, it is respondent Committees’ contention that their determination on the validity of
executive privilege should be binding on the Executive and the Courts. It is their assertion
that their internal procedures and deliberations cannot be inquired into by this Court supposedly in
accordance with the principle of respect between co-equal branches of government. Interestingly, it is a
courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive privilege)
or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent Committees’
paradigm of checks and balances, what are the checks to the Legislature’s all-encompassing, awesome
power of investigation? It is a power, like any other, that is susceptible to grave abuse.

While this Court finds laudable the respondent Committees’ well-intentioned efforts to ferret out
corruption, even in the highest echelons of government, such lofty intentions do not validate or accord to
Congress powers denied to it by the Constitution and granted instead to the other branches of
government.

There is no question that any story of government malfeasance deserves an inquiry into its veracity. As
respondent Committees contend, this is founded on the constitutional command of transparency and
public accountability. The recent clamor for a "search for truth" by the general public, the religious
community and the academe is an indication of a concerned citizenry, a nation that demands an
accounting of an entrusted power. However, the best venue for this noble undertaking is not in the
political branches of government. The customary partisanship and the absence of generally accepted
rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets the test
of the constitutional guarantee of due process of law. We believe the people deserve a more exacting
"search for truth" than the process here in question, if that is its objective.

WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is

hereby DENIED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

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

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

FERNAN, C.J.:p

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

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

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive

official of the Executive Department holds more positions than what is allowed in Section 1
hereof, they (sic) must relinquish the excess position in favor of the subordinate official who
is next in rank, but in no case shall any official hold more than two positions other than his
primary position.

Sec. 3. In order to fully protect the interest of the government in government-owned or

controlled corporations, at least one-third (1/3) of the members of the boards of such
corporation should either be a secretary, or undersecretary, or assistant secretary.

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

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

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

Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the
aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of
Justice Sedfrey Ordoñez, construing Section 13, Article VII in relation to Section 7, par. (2), Article
IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet members,
their deputies (undersecretaries) and assistant secretaries may hold other public office, including
membership in the boards of government corporations: (a) when directly provided for in the
Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the
Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if
allowed by the primary functions of their respective positions; and that on the basis of this Opinion,
the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July
27, 1987: promulgated Executive Order No. 284. 6

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

Sec. 7. . . . . .

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

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as
further elucidated and clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155,
series of 1988,10 being the first official construction and interpretation by the Secretary of Justice of
Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same
subject of appointments or designations of an appointive executive official to positions other than his
primary position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284,
promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is
worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988
construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to
positions which, although not so designated as ex-officio are allowed by the primary functions of the
public official, but only to the holding of multiple positions which are not related to or necessarily
included in the position of the public official concerned (disparate positions).

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

Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the
Civil Service Commission applies to officers and employees of the Civil Service in general and that
said exceptions do not apply and cannot be extended to Section 13, Article VII which applies
specifically to the President, Vice-President, Members of the Cabinet and their deputies or
assistants.

There is no dispute that the prohibition against the President, Vice-President, the members of the
Cabinet and their deputies or assistants from holding dual or multiple positions in the Government
admits of certain exceptions. The disagreement between petitioners and public respondents lies on
the constitutional basis of the exception. Petitioners insist that because of the phrase "unless
otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be
expressly provided in the Constitution, as in the case of the Vice-President being allowed to become
a Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of
Justice being designated an ex-officio member of the Judicial and Bar Council under Article VIII,
Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise
provided in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article
I-XB insofar as the appointive officials mentioned therein are concerned.

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

We rule in the negative.

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

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

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

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

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

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

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

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

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

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

Such intent of the 1986 Constitutional Commission to be stricter with the President and his official
family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado
Maambong noted during the floor deliberations and debate that there was no symmetry between the
Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the
Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the
President and the members of the Cabinet because they exercise more powers and, therefore, more
cheeks and restraints on them are called for because there is more possibility of abuse in their
case."14

Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the primary
functions of their positions, members of the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant
to lay down the general rule applicable to all elective and appointive public officials and employees,
while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.

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

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

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

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

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

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

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

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

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

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

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery
and Apparel Control and Inspection Board,31 thus: "An examination of section 2 of the questioned
statute (R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only
be designated by the respective department heads. With the exception of the representative from
the private sector, they sit ex-officio. In order to be designated they must already be holding
positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous
appointment in the Bureau of Customs, cannot, under the act, be designated a representative from
that office. The same is true with respect to the representatives from the other offices. No new
appointments are necessary. This is as it should be, because the representatives so
designated merely perform duties in the Board in addition to those already performed under their
original appointments."32
The term "primary" used to describe "functions" refers to the order of importance and thus means
chief or principal function. The term is not restricted to the singular but may refer to the plural.33 The
additional duties must not only be closely related to, but must be required by the official's primary
functions. Examples of designations to positions by virtue of one's primary functions are the
Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of
Transportation and Communications acting as Chairman of the Maritime Industry Authority 34 and the
Civil Aeronautics Board.

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

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

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

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

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

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

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

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

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

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

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

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

The Court is alerted by respondents to the impractical consequences that will result from a strict
application of the prohibition mandated under Section 13, Article VII on the operations of the
Government, considering that Cabinet members would be stripped of their offices held in an ex-
officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in
this decision, ex-officio posts held by the executive official concerned without additional
compensation as provided by law and as required by the primary functions of his office do not fall
under the definition of "any other office" within the contemplation of the constitutional prohibition.
With respect to other offices or employment held by virtue of legislation, including chairmanships or
directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say
that the feared impractical consequences are more apparent than real. Being head of an executive
department is no mean job. It is more than a full-time job, requiring full attention, specialized
knowledge, skills and expertise. If maximum benefits are to be derived from a department head's
ability and expertise, he should be allowed to attend to his duties and responsibilities without the
distraction of other governmental offices or employment. He should be precluded from dissipating
his efforts, attention and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents
Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local
Government45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health
Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their
other offices or employment, as herein defined, in the government, including government-owned or
controlled corporations and their subsidiaries. With respect to the other named respondents, the
petitions have become moot and academic as they are no longer occupying the positions
complained of.

During their tenure in the questioned positions, respondents may be considered de facto officers and
as such entitled to emoluments for actual services rendered.46 It has been held that "in cases where
there is no de jure,officer, a de facto officer, who, in good faith has had possession of the office and
has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and
may in an appropriate action recover the salary, fees and other compensations attached to the
office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the
public should benefit by the services of an officer de facto and then be freed from all liability to pay
any one for such services.47 Any per diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in the questioned positions may therefore be
retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive
Order No. 284 is hereby declared null and void and is accordingly set aside.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 88211 October 27, 1989

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

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

RESOLUTION

EN BANC:

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

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

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

1. to bar former President Marcos and his family from returning to the Philippines is to deny them not
only the inherent right of citizens to return to their country of birth but also the protection of the
Constitution and all of the rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it
arbitrarily; and

3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners
prayed that the Court reconsider its decision, order respondents to issue the necessary travel
documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M.
Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's decision to bar the return of the remains of Mr.
Marcos, and the other petitioners, to the Philippines.

Commenting on the motion for reconsideration, the Solicitor General argued that the motion for
reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that
"the 'formal' rights being invoked by the Marcoses under the label 'right to return', including the label
'return of Marcos' remains, is in reality or substance a 'right' to destabilize the country, a 'right' to hide
the Marcoses' incessant shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he
prays that the Motion for Reconsideration be denied for lack of merit.

We deny the motion for reconsideration.

1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants,
petitioner herein, to show that there are compelling reasons to reconsider the decision of the Court.

2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is
of the view that no compelling reasons have been established by petitioners to warrant a
reconsideration of the Court's decision.

The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the
factual scenario under which the Court's decision was rendered. The threats to the government, to
which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown
to have ceased. On the contrary, instead of erasing fears as to the destabilization that will be caused
by the return of the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return
when she called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the
"legal" President of the Philippines, and declared that the matter "should be brought to all the courts
of the world." [Comment, p. 1; Philippine Star, October 4, 1989.]

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

That the President has powers other than those expressly stated in the Constitution is nothing new.
This is recognized under the U.S. Constitution from which we have patterned the distribution of
governmental powers among three (3) separate branches.

Article II, [section] 1, provides that "The Executive Power shall be vested in a
President of the United States of America." In Alexander Hamilton's widely accepted
view, this statement cannot be read as mere shorthand for the specific executive
 authorizations that follow it in [sections] 2 and 3. Hamilton stressed the difference
between the sweeping language of article II, section 1, and the conditional language
of article I, [section] 1: "All legislative Powers herein granted shall be vested in a
Congress of the United States . . ." Hamilton submitted that "[t]he [article III
enumeration [in sections 2 and 31 ought therefore to be considered, as intended
merely to specify the principal articles implied in the definition of execution power;
leaving the rest to flow from the general grant of that power, interpreted in confomity
with other parts of the Constitution...

In Myers v. United States, the Supreme Court — accepted Hamilton's proposition,

concluding that the federal executive, unlike the Congress, could exercise power
from sources not enumerated, so long as not forbidden by the constitutional text: the
executive power was given in general terms, strengthened by specific terms where
emphasis was regarded as appropriate, and was limited by direct expressions where
limitation was needed. . ." The language of Chief Justice Taft in Myers makes clear
that the constitutional concept of inherent power is not a synonym for power without
limit; rather, the concept suggests only that not all powers granted in the Constitution
are themselves exhausted by internal enumeration, so that, within a sphere properly
regarded as one of "executive' power, authority is implied unless there or elsewhere
expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]

And neither can we subscribe to the view that a recognition of the President's implied or residual
powers is tantamount to setting the stage for another dictatorship. Despite petitioners' strained
analogy, the residual powers of the President under the Constitution should not be confused with the
power of the President under the 1973 Constitution to legislate pursuant to Amendment No. 6 which
provides:

Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders, or letters of
instruction, which shall form part of the law of the land,

There is no similarity between the residual powers of the President under the 1987 Constitution and
the power of the President under the 1973 Constitution pursuant to Amendment No. 6. First of all,
Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment No. 6
refers to a grant to the President of the specific power of legislation.

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

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

Separate Opinions
CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of Marcos
has not plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and
large, it has been met with only passing interest if not outright indifference from the people. Clearly,
the discredited dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a bolt
of lightning to whip the blood.

This only shows that if he was at all a threat to the national security when he was already moribund
that feeble threat has died with him. As the government stresses, he has been reduced to a non-
person (which makes me wonder why it is still afraid of him). His cadaver is not even regarded as a
symbol of this or that or whatever except by his fanatical followers. It is only a dead body waiting to
be interred in this country.

This is a tempest in a teapot. We have more important things to do than debating over a corpse that
deserves no kinder fate than dissolution and oblivion. I say let it be brought home and buried deep
and let us be done with it forever.

PARAS, J., dissenting on the Motion for Reconsideration:

I find no reason to deviate from the dissenting opinion I have already expressed.

Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct
to say that a dead man, since he is no longer a human being, has ceased to have rights. For
instance, our Revised Penal Code prohibits the commission of libel against a deceased individual.
And even if we were to assume the non- existence anymore of his human rights what about the
human rights of his widow and the other members of his family?

Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or political
and military destabilization. In fact, the converse appears to be nearer the truth, that is, if we do not
allow the remains to come, more trouble may be expected.

Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To
refuse the request can mean a hardening of resistance against the well-intentioned aim of the
administration. Upon the other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.

Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once
wrote "the quality of mercy is not strained." Surely, compassion is the better part of government.
Remove mercy, and you remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man has put it, the question
will no longer be what is right, but what is left.

PADILLA, J., dissenting:

The death of former President Ferdinand E. Marcos, which supervened after decision in this case
had been rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that
the first cogent and decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such,
entitled to return to, die and be buriedin this country." I have only to add a few statements to that
dissenting opinion.

Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die
in this country, The remaining right of this Filipino that cries out for vindication at this late hour is the
right to be buried in this country. Will the respondents be allowed to complete the circle of denying
the constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should be in the
negative if the Constitution is to still prevail; the answer should be in the negative if we are to avoid
the completely indefensible act of denying a Filipino the last right to blend his mortal remains with a
few square feet of earth in the treasured land of his birth.

Those who would deny this Filipino the only constitutional and human right that can be accorded him
now say that the constitutional and human right to be buried in this country would apply to any
Filipino, except Mr. Marcos, because he was a dictator and he plundered the country. This is the
most irrelevant argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its guarantees apply
to all Filipinos, whether dictator or pauper, learned or ignorant, religious or agnostic as long as he is
a Filipino.

It is said that to accord this Filipino the right to be buried in this country would pose a serious threat
to national security and public safety. What threat? As pointed out in my dissenting opinion, the
second cogent and decisive proposition in this case is that respondents have not presented any
"hard evidence" (factual bases) or convincing proof of such threat. "All we have are general
conclusions of national security and public safety' in avoidance of a specific, demandable and
enforceable constitutional and basic human right to return." Recent events have, to my mind, served
to confirm the validity of such dissenting statement.

If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be
buried into mother earth, where there are no protests, "demos", or even dissents, where the rule that
reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."

It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without
merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with Marcos deprived
of his right to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to
the country and allowed the burial to which he is constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise potent argument—so conducive to mass protests and
even violence—that their Idol has been cruelly denied the right to be buried in his homeland.

It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of.
This contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr.
Marcos, as a Filipino, to be buried in this country, is asserted not for the first time after his death. It
was vigorously asserted long before his death. But, more importantly, the right of every Filipino to be
buried in his country, is part of a continuing right that starts from birth and ends only on the day he is
finally laid to rest in his country.

This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as a
fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country
NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way
affecting my respect and regard for my brethren and sisters in the majority, I am deeply concerned
and greatly disturbed that, with their decision banning a dead Marcos from burial in this country, they
have passed an opportunity to defuse a constitutional crisis that, in my humble assessment,
threatens to ignite an already divided nation, Regrettably, they have ignored the constitutional
dimension of the problem rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife, among our people, of
unending hatred, recriminations and retaliations. God save this country!

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

SARMIENTO, J., Dissenting:

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

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

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

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

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

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

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

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

Separate Opinions

CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of Marcos
has not plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and
large, it has been met with only passing interest if not outright indifference from the people. Clearly,
the discredited dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a bolt
of lightning to whip the blood.

This only shows that if he was at all a threat to the national security when he was already moribund
that feeble threat has died with him. As the government stresses, he has been reduced to a non-
person (which makes me wonder why it is still afraid of him). His cadaver is not even regarded as a
symbol of this or that or whatever except by his fanatical followers. It is only a dead body waiting to
be interred in this country.

This is a tempest in a teapot. We have more important things to do than debating over a corpse that
deserves no kinder fate than dissolution and oblivion. I say let it be brought home and buried deep
and let us be done with it forever.

PARAS, J., dissenting on the Motion for Reconsideration:

I find no reason to deviate from the dissenting opinion I have already expressed.

Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct
to say that a dead man, since he is no longer a human being, has ceased to have rights. For
instance, our Revised Penal Code prohibits the commission of libel against a deceased individual.
And even if we were to assume the non- existence anymore of his human rights what about the
human rights of his widow and the other members of his family?

Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or political
and military destabilization. In fact, the converse appears to be nearer the truth, that is, if we do not
allow the remains to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To
refuse the request can mean a hardening of resistance against the well-intentioned aim of the
administration. Upon the other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.

Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once
wrote "the quality of mercy is not strained." Surely, compassion is the better part of government.
Remove mercy, and you remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man has put it, the question
will no longer be what is right, but what is left.

PADILLA, J., dissenting:

The death of former President Ferdinand E. Marcos, which supervened after decision in this case
had been rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that
the first cogent and decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such,
entitled to return to, die and be buriedin this country." I have only to add a few statements to that
dissenting opinion.

Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die
in this country, The remaining right of this Filipino that cries out for vindication at this late hour is the
right to be buried in this country. Will the respondents be allowed to complete the circle of denying
the constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should be in the
negative if the Constitution is to still prevail; the answer should be in the negative if we are to avoid
the completely indefensible act of denying a Filipino the last right to blend his mortal remains with a
few square feet of earth in the treasured land of his birth.

Those who would deny this Filipino the only constitutional and human right that can be accorded him
now say that the constitutional and human right to be buried in this country would apply to any
Filipino, except Mr. Marcos, because he was a dictator and he plundered the country. This is the
most irrelevant argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its guarantees apply
to all Filipinos, whether dictator or pauper, learned or ignorant, religious or agnostic as long as he is
a Filipino.

It is said that to accord this Filipino the right to be buried in this country would pose a serious threat
to national security and public safety. What threat? As pointed out in my dissenting opinion, the
second cogent and decisive proposition in this case is that respondents have not presented any
"hard evidence" (factual bases) or convincing proof of such threat. "All we have are general
conclusions of national security and public safety' in avoidance of a specific, demandable and
enforceable constitutional and basic human right to return." Recent events have, to my mind, served
to confirm the validity of such dissenting statement.

If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be
buried into mother earth, where there are no protests, "demos", or even dissents, where the rule that
reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."

It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without
merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with Marcos deprived
of his right to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to
the country and allowed the burial to which he is constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise potent argument—so conducive to mass protests and
even violence—that their Idol has been cruelly denied the right to be buried in his homeland.

It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of.
This contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr.
Marcos, as a Filipino, to be buried in this country, is asserted not for the first time after his death. It
was vigorously asserted long before his death. But, more importantly, the right of every Filipino to be
buried in his country, is part of a continuing right that starts from birth and ends only on the day he is
finally laid to rest in his country.

This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as a
fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country
NOW.

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

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

SARMIENTO, J., Dissenting:

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

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

3. Contrary to petitioners view, it cannot be denied that the President, upon whom
executive power is vested, has unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power. The
Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so. It would have also
completed the symmetry: judicial, congressional, and executive restraints on the right. No amount of
presumed residual executive power can amend the Charter.

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

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

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

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

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner,

vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of
Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of
Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents.

Ramon A. Gonzales in his own behalf as petitioner.

Office of the Solicitor General and Estanislao Fernandez for respondents.

CONCEPCION, J.:

This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice
procurement committee composed of the other respondents herein1 for the implementation of said
proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales —
a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are,
likewise, engaged in the production of rice and corn — filed the petition herein, averring that, in
making or attempting to make said importation of foreign rice, the aforementioned respondents "are
acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which
allegedly repeals or amends Republic Act No. 220 — explicitly prohibits the importation of rice and
corn "the Rice and Corn Administration or any other government agency;" that petitioner has no
other plain, speedy and adequate remedy in the ordinary course of law; and that a preliminary
injunction is necessary for the preservation of the rights of the parties during the pendency this case
and to prevent the judgment therein from coming ineffectual. Petitioner prayed, therefore, that said
petition be given due course; that a writ of preliminary injunction be forthwith issued restraining
respondent their agents or representatives from implementing the decision of the Executive
Secretary to import the aforementioned foreign rice; and that, after due hearing, judgment be
rendered making said injunction permanent.

Forthwith, respondents were required to file their answer to the petition which they did, and
petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties
appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the
respondents. Considering, later on, that the resolution said incident may require some
pronouncements that would be more appropriate in a decision on the merits of the case, the same
was set for hearing on the merits thereafter. The parties, however, waived the right to argue orally,
although counsel for respondents filed their memoranda.

I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him sufficient
interest to file the petition herein and secure the relief therein prayed for. We find no merit in this
pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn
Administration or any other government agency". Republic Act No. 3452 declares, in Section 1
thereof, that "the policy of the Government" is to "engage in the purchase of these basic
foods directly from those tenants, farmers, growers, producers and landowners in the
Philippines who wish to dispose of their products at a price that will afford them a fair and just return
for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a planter with a
rice land of substantial proportion,2 is entitled to a chance to sell to the Government the rice it now
seeks to buy abroad. Moreover, since the purchase of said commodity will have to be effected with
public funds mainly raised by taxation, and as a rice producer and landowner petitioner must
necessarily be a taxpayer, it follows that he has sufficient personality and interest to seek judicial
assistance with a view to restraining what he believes to be an attempt to unlawfully disburse said
funds.

II. Exhaustion of administrative remedies.

Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all
administrative remedies available to him before coming to court". We have already held, however,
that the principle requiring the previous exhaustion of administrative remedies is not applicable
where the question in dispute is purely a legal one", 3 or where the controverted act is "patently
illegal" or was performed without jurisdiction or in excess of jurisdiction, 4 or where the respondent is
a department secretary, whose acts as an alter-ego of the President bear the implied or assumed
approval of the latter,5 unless actually disapproved by him,6 or where there are circumstances
indicating the urgency of judicial intervention. 7 The case at bar fails under each one of the foregoing
exceptions to the general rule. Respondents' contention is, therefore, untenable.

III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory that the
proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was
authorized by the President as Commander-in-Chief "for military stock pile purposes" in the exercise
of his alleged authority under Section 2 of Commonwealth Act No. 1; 8 that in cases of necessity, the
President "or his subordinates may take such preventive measure for the restoration of good order
and maintenance of peace"; and that, as Commander-in-Chief of our armed forces, "the President ...
is duty-bound to prepare for the challenge of threats of war or emergency without waiting for any
special authority".

Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by
petitioner herein - on which our view need not be expressed — we are unanimously of the opinion -
assuming that said Republic Act No. 2207 is still in force — that the two Acts are applicable to the
proposed importation in question because the language of said laws is such as to include within the
purview thereof all importations of rice and corn into the Philippines". Pursuant to Republic Act No.
2207, "it shall be unlawful for any person, association, corporation or government agency to import
rice and corn into any point in the Philippines", although, by way of exception, it adds, that "the
President of the Philippines may authorize the importation of these commodities through any
government agency that he may designate", is the conditions prescribed in Section 2 of said Act are
present. Similarly, Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration or any
government agency" from importing rice and corn.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting
the importation of rice and corn by any "government agency", do not apply to importations "made by
the Government itself", because the latter is not a "government agency". This theory is devoid of
merit. The Department of National Defense and the Armed Forces of the Philippines, as well as
respondents herein, and each and every officer and employee of our Government, our government
agencies and/or agents. The applicability of said laws even to importations by the Government as
such, becomes more apparent when we consider that:

1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the
Philippines" and, hence, by or on behalf of the Government of the Philippines;

2. Immediately after enjoining the Rice and Corn administration and any other government agency
from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice
and corn is left to private parties upon payment of the corresponding taxes", thus indicating
that only "private parties" may import rice under its provisions; and

3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five
(5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and
regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is
a public official and/or employees", he shall be subject to the additional penalty specified therein. A
public official is an officer of the Government itself, as distinguished from officers or employees of
instrumentalities of the Government. Hence, the duly authorized acts of the former are those of the
Government, unlike those of a government instrumentality which may have a personality of its own,
distinct and separate from that of the Government, as such. The provisions of Republic Act No. 2207
are, in this respect, even more explicit. Section 3 thereof provides a similar additional penalty for any
"officer or employee of the Government" who "violates, abets or tolerates the violation of any
provision" of said Act. Hence, the intent to apply the same to transactions made by the very
government is patent.

Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in
Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the
preference in the purchase of articles for the Government." Pursuant to Section 1 thereof:

The Purchase and Equipment Division of the Government of the Philippines and other
officers and employees of the municipal and provincial governments and the Government of
the Philippines and of chartered cities, boards, commissions, bureaus, departments, offices,
agencies, branches, and bodies of any description, including government-owned companies,
authorized to requisition, purchase, or contract or make disbursements for articles, materials,
and supplies for public use, public buildings, or public works shall give preference to
materials ... produced ... in the Philippines or in the United States, and to domestic entities,
subject to the conditions hereinbelow specified. (Emphasis supplied.)

Under this provision, in all purchases by the Government, including those made by and/or for the
armed forces, preference shall be given to materials produced in the Philippines. The importation
involved in the case at bar violates this general policy of our Government, aside from the provisions
of Republic Acts Nos. 2207 and 3452.

The attempt to justify the proposed importation by invoking reasons of national security —
predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created by
the Malaysia problem" - and the alleged powers of the President as Commander-in-Chief of all
armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth Act
No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner that would
foster and accelerate self-sufficiency in the local production of said commodities constitutes a factor
that is vital to our ability to meet possible national emergency. Even if the intent in importing goods in
anticipation of such emergency were to bolster up that ability, the latter would, instead, be impaired if
the importation were so made as to discourage our farmers from engaging in the production of rice.

Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency
is within the purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and
Corn Administration "to accumulate stocks as a national reserve in such quantities as it may deem
proper and necessary to meet any contingencies". Moreover, it ordains that "the buffer stocks held
as a national reserve ... be deposited by the administration throughout the country under the proper
dispersal plans ... and may be released only upon the occurrence of calamities or emergencies ...".
(Emphasis applied.)

Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so
much, are not self-executory. They merely outline the general objectives of said legislation. The
means for the attainment of those objectives are subject to congressional legislation. Thus, the
conditions under which the services of citizens, as indicated in said Section 2, may be availed of, are
provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5
thereof specifies the manner in which resources necessary for our national defense may be secured
by the Government of the Philippines, but only "during a national mobilization",9 which does not exist.
Inferentially, therefore, in the absence of a national mobilization, said resources shall be produced in
such manner as Congress may by other laws provide from time to time. Insofar as rice and corn are
concerned, Republic Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws.

Respondents cite Corwin in support of their pretense, but in vain. An examination of the work
cited10 shows that Corwin referred to the powers of the President during "war time" 11 or when he has
placed the country or a part thereof under "martial law". 12 Since neither condition obtains in the case
at bar, said work merely proves that respondents' theory, if accepted, would, in effect, place the
Philippines under martial law, without a declaration of the Executive to that effect. What is worse, it
would keep us perpetually under martial law.

It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and
3452, it should, nevertheless, be permitted because "it redounds to the benefit of the people". Salus
populi est suprema lex, it is said.

If there were a local shortage of rice, the argument might have some value. But the respondents, as
officials of this Government, have expressly affirmed again and again that there is no rice shortage.
And the importation is avowedly for stockpile of the Army — not the civilian population.

But let us follow the respondents' trend of thought. It has a more serious implication that appears on
the surface. It implies that if an executive officer believes that compliance with a certain statute will
not benefit the people, he is at liberty to disregard it. That idea must be rejected - we still live under a
rule of law.

And then, "the people" are either producers or consumers. Now — as respondents explicitly admit —
Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers
and consumers, i.e., the people, it must follow that the welfare of the people lies precisely in
the compliance with said Acts.

It is not for respondent executive officers now to set their own opinions against that of the
Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit
importation — but under certain conditions, which have not been, and should be complied with.

IV. The contracts with Vietnam and Burma —

It is lastly contended that the Government of the Philippines has already entered into two (2)
contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the
Government of Burma; that these contracts constitute valid executive agreements under
international law; that such agreements became binding effective upon the signing thereof by
representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and
3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail,
because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved —
under the American jurisprudence — in favor of the one which is latest in point of time; that petitioner
herein assails the validity of acts of the Executive relative to foreign relations in the conduct of which
the Supreme Court cannot interfere; and the aforementioned contracts have already been
consummated, the Government of the Philippines having already paid the price of the rice involved
therein through irrevocable letters of credit in favor of the sell of the said commodity. We find no
merit in this pretense.

The Court is not satisfied that the status of said tracts as alleged executive agreements has been
sufficiently established. The parties to said contracts do not pear to have regarded the same as
executive agreements. But, even assuming that said contracts may properly considered as
executive agreements, the same are unlawful, as well as null and void, from a constitutional
viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and
3452. Although the President may, under the American constitutional system enter into executive
agreements without previous legislative authority, he may not, by executive agreement, enter into a
transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main
function of the Executive is to enforce laws enacted by Congress. The former may not interfere in
the performance of the legislative powers of the latter, except in the exercise of his veto power. He
may not defeat legislative enactments that have acquired the status of law, by indirectly
repealing the same through an executive agreement providing for the performance of the very act
prohibited by said laws.

The American theory to the effect that, in the event of conflict between a treaty and a statute, the
one which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents
not only admit, but, also insist that the contracts adverted to are not treaties. Said theory may be
justified upon the ground that treaties to which the United States is signatory require the advice and
consent of its Senate, and, hence, of a branch of the legislative department. No such justification can
be given as regards executive agreements not authorized by previous legislation, without completely
upsetting the principle of separation of powers and the system of checks and balances which are
fundamental in our constitutional set up and that of the United States.

As regards the question whether an international agreement may be invalidated by our courts,
suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by
providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law
or the rules of court may provide, final judgments and decrees of inferior courts in — (1) All cases in
which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is
in question". In other words, our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma
does not render this case academic, Republic Act No. 2207 enjoins our Government not
from entering into contracts for the purchase of rice, but from importing rice, except under the
conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main
features, namely: (a) it requires the Government to purchase rice and corn directly from our local
planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and
leaves such importations to private parties. The pivotal issue in this case is whether the
proposed importation — which has not been consummated as yet — is legally feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our
Government to default in the performance of such obligations as it may have contracted with the
sellers of the rice in question, because, aside from the fact that said obligations may be complied
with without importing the commodity into the Philippines, the proposed importation may still be
legalized by complying with the provisions of the aforementioned laws.

V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not respondents
herein should be enjoined from implementing the aforementioned proposed importation. However,
the majority favors the negative view, for which reason the injunction prayed for cannot be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and
has no power to authorize the importation in question; that he exceeded his jurisdiction in granting
said authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for
lack of the requisite majority, the injunction prayed for must be and is, accordingly denied. It is so
ordered.

Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 192935 December 7, 2010

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.

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

G.R. No. 193036

REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A.

DATUMANONG, and REP. ORLANDO B. FUA, SR., Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO B. ABAD, Respondents.

DECISION

MENDOZA, J.:

When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them.

--- Justice Jose P. Laurel1

The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental
powers of government are established, limited and defined, and by which these powers are
distributed among the several departments.2 The Constitution is the basic and paramount law to
which all other laws must conform and to which all persons, including the highest officials of the land,
must defer.3 Constitutional doctrines must remain steadfast no matter what may be the tides of time.
It cannot be simply made to sway and accommodate the call of situations and much more tailor itself
to the whims and caprices of government and the people who run it. 4

For consideration before the Court are two consolidated cases 5 both of which essentially assail the
validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled "Creating the
Philippine Truth Commission of 2010."

The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis
Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1
for being violative of the legislative power of Congress under Section 1, Article VI of the
Constitution6 as it usurps the constitutional authority of the legislature to create a public office and to
appropriate funds therefor.7
The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by
petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua,
Sr. (petitioners-legislators) as incumbent members of the House of Representatives.

The genesis of the foregoing cases can be traced to the events prior to the historic May 2010
elections, when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft
and corruption with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people,
convinced of his sincerity and of his ability to carry out this noble objective, catapulted the good
senator to the presidency.

To transform his campaign slogan into reality, President Aquino found a need for a special body to
investigate reported cases of graft and corruption allegedly committed during the previous
administration.

Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No.
1 establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of
said executive order read:

EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the
principle that a public office is a public trust and mandates that public officers and employees, who
are servants of the people, must at all times be accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;

WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious
violation of this mandate;

WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and
social life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the
marginalized and underprivileged sector of society;

WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the
people’s trust and confidence in the Government and its institutions;

WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter others from committing the evil,
restore the people’s faith and confidence in the Government and in their public servants;

WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections
"kung walang corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds;

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and corruption during the previous administration, and
which will recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines, gives the President the continuing authority to
reorganize the Office of the President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order:

SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find
the truth on, and toward this end, investigate reports of graft and corruption of such scale and
magnitude that shock and offend the moral and ethical sensibilities of the people, committed by
public officers and employees, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration; and thereafter recommend the appropriate action
or measure to be taken thereon to ensure that the full measure of justice shall be served without fear
or favor.

The Commission shall be composed of a Chairman and four (4) members who will act as an
independent collegial body.

SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during the previous administration and
thereafter submit its finding and recommendations to the President, Congress and the Ombudsman.

In particular, it shall:

a) Identify and determine the reported cases of such graft and corruption which it will
investigate;

b) Collect, receive, review and evaluate evidence related to or regarding the cases of large
scale corruption which it has chosen to investigate, and to this end require any agency,
official or employee of the Executive Branch, including government-owned or controlled
corporations, to produce documents, books, records and other papers;

c) Upon proper request or representation, obtain information and documents from the Senate
and the House of Representatives records of investigations conducted by committees
thereof relating to matters or subjects being investigated by the Commission;

d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in
respect to corruption cases filed with the Sandiganbayan or the regular courts, as the case
may be;

e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer
oaths or affirmations as the case may be;

f) Recommend, in cases where there is a need to utilize any person as a state witness to
ensure that the ends of justice be fully served, that such person who qualifies as a state
witness under the Revised Rules of Court of the Philippines be admitted for that purpose;
 g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report and recommendation, all evidence on
corruption of public officers and employees and their private sector co-principals,
accomplices or accessories, if any, when in the course of its investigation the Commission
finds that there is reasonable ground to believe that they are liable for graft and corruption
under pertinent applicable laws;

h) Call upon any government investigative or prosecutorial agency such as the Department
of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for
such assistance and cooperation as it may require in the discharge of its functions and
duties;

i) Engage or contract the services of resource persons, professionals and other personnel
determined by it as necessary to carry out its mandate;

j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively
and efficiently carry out the objectives of this Executive Order and to ensure the orderly
conduct of its investigations, proceedings and hearings, including the presentation of
evidence;

k) Exercise such other acts incident to or are appropriate and necessary in connection with
the objectives and purposes of this Order.

SECTION 3. Staffing Requirements. – x x x.

SECTION 4. Detail of Employees. – x x x.

SECTION 5. Engagement of Experts. – x x x

SECTION 6. Conduct of Proceedings. – x x x.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.

SECTION 8. Protection of Witnesses/Resource Persons. – x x x.

SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. – Any government
official or personnel who, without lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when required, shall be subject to administrative
disciplinary action. Any private person who does the same may be dealt with in accordance with law.

SECTION 10. Duty to Extend Assistance to the Commission. – x x x.

SECTION 11. Budget for the Commission. – The Office of the President shall provide the
necessary funds for the Commission to ensure that it can exercise its powers, execute its functions,
and perform its duties and responsibilities as effectively, efficiently, and expeditiously as possible.

SECTION 12. Office. – x x x.

SECTION 13. Furniture/Equipment. – x x x.

SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on or
before December 31, 2012.

SECTION 15. Publication of Final Report. – x x x.

SECTION 16. Transfer of Records and Facilities of the Commission. – x x x.

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the
President there is a need to expand the mandate of the Commission as defined in Section 1 hereof
to include the investigation of cases and instances of graft and corruption during the prior
administrations, such mandate may be so extended accordingly by way of a supplemental Executive
Order.

SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the
same shall not affect the validity and effectivity of the other provisions hereof.

SECTION 19. Effectivity. – This Executive Order shall take effect immediately.

DONE in the City of Manila, Philippines, this 30th day of July 2010.

(SGD.) BENIGNO S. AQUINO III

By the President:

(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary

Nature of the Truth Commission

As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a
mere ad hoc body formed under the Office of the President with the primary task to investigate
reports of graft and corruption committed by third-level public officers and employees, their co-
principals, accomplices and accessories during the previous administration, and thereafter to submit
its finding and recommendations to the President, Congress and the Ombudsman. Though it has
been described as an "independent collegial body," it is essentially an entity within the Office of the
President Proper and subject to his control. Doubtless, it constitutes a public office, as an ad hoc
body is one.8

To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it
cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending
parties. All it can do is gather, collect and assess evidence of graft and corruption and make
recommendations. It may have subpoena powers but it has no power to cite people in contempt,
much less order their arrest. Although it is a fact-finding body, it cannot determine from such facts if
probable cause exists as to warrant the filing of an information in our courts of law. Needless to
state, it cannot impose criminal, civil or administrative penalties or sanctions.

The PTC is different from the truth commissions in other countries which have been created as
official, transitory and non-judicial fact-finding bodies "to establish the facts and context of serious
violations of human rights or of international humanitarian law in a country’s past." 9 They are usually
established by states emerging from periods of internal unrest, civil strife or authoritarianism to serve
as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the following characteristics: (1) they
examine only past events; (2) they investigate patterns of abuse committed over a period of time, as
opposed to a particular event; (3) they are temporary bodies that finish their work with the
submission of a report containing conclusions and recommendations; and (4) they are officially
sanctioned, authorized or empowered by the State. 10 "Commission’s members are usually
empowered to conduct research, support victims, and propose policy recommendations to prevent
recurrence of crimes. Through their investigations, the commissions may aim to discover and learn
more about past abuses, or formally acknowledge them. They may aim to prepare the way for
prosecutions and recommend institutional reforms."11

Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime
tribunals are examples of a retributory or vindicatory body set up to try and punish those responsible
for crimes against humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation
Commission of South Africa, the principal function of which was to heal the wounds of past violence
and to prevent future conflict by providing a cathartic experience for victims.

The PTC is a far cry from South Africa’s model. The latter placed more emphasis on reconciliation
than on judicial retribution, while the marching order of the PTC is the identification and punishment
of perpetrators. As one writer12puts it:

The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his
inaugural speech: "To those who talk about reconciliation, if they mean that they would like us to
simply forget about the wrongs that they have committed in the past, we have this to say: There can
be no reconciliation without justice. When we allow crimes to go unpunished, we give consent to
their occurring over and over again."

The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to
declare it unconstitutional and to enjoin the PTC from performing its functions. A perusal of the
arguments of the petitioners in both cases shows that they are essentially the same. The petitioners-
legislators summarized them in the following manner:

(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to
create a public office and appropriate funds for its operation.

(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987
cannot legitimize E.O. No. 1 because the delegated authority of the President to structurally
reorganize the Office of the President to achieve economy, simplicity and efficiency does not
include the power to create an entirely new public office which was hitherto inexistent like the
"Truth Commission."

(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the
"Truth Commission" with quasi-judicial powers duplicating, if not superseding, those of the
Office of the Ombudsman created under the 1987 Constitution and the Department of
Justice created under the Administrative Code of 1987.

(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation
and prosecution officials and personnel of the previous administration as if corruption is their
peculiar species even as it excludes those of the other administrations, past and present,
who may be indictable.
 (e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and
general international practice of four decades wherein States constitute truth commissions to
exclusively investigate human rights violations, which customary practice forms part of the
generally accepted principles of international law which the Philippines is mandated to
adhere to pursuant to the Declaration of Principles enshrined in the Constitution.

(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in partisan
hostility, a launching pad for trial/conviction by publicity and a mere populist propaganda to
mistakenly impress the people that widespread poverty will altogether vanish if corruption is
eliminated without even addressing the other major causes of poverty.

(g) The mere fact that previous commissions were not constitutionally challenged is of no
moment because neither laches nor estoppel can bar an eventual question on the
constitutionality and validity of an executive issuance or even a statute." 13

In their Consolidated Comment,14 the respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal standing of petitioners and defended the assailed
executive order with the following arguments:

1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the
President’s executive power and power of control necessarily include the inherent power to
conduct investigations to ensure that laws are faithfully executed and that, in any event, the
Constitution, Revised Administrative Code of 1987 (E.O. No. 292), 15 Presidential Decree
(P.D.) No. 141616 (as amended by P.D. No. 1772), R.A. No. 9970,17 and settled jurisprudence
that authorize the President to create or form such bodies.

2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is
no appropriation but a mere allocation of funds already appropriated by Congress.

3] The Truth Commission does not duplicate or supersede the functions of the Office of the
Ombudsman (Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding
body and not a quasi-judicial body and its functions do not duplicate, supplant or erode the
latter’s jurisdiction.

4] The Truth Commission does not violate the equal protection clause because it was validly
created for laudable purposes.

The OSG then points to the continued existence and validity of other executive orders and
presidential issuances creating similar bodies to justify the creation of the PTC such as Presidential
Complaint and Action Commission (PCAC) by President Ramon B. Magsaysay, Presidential
Committee on Administrative Performance Efficiency (PCAPE) by President Carlos P. Garcia and
Presidential Agency on Reform and Government Operations (PARGO)by President Ferdinand E.
Marcos.18

From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to
be resolved:

1. Whether or not the petitioners have the legal standing to file their respective petitions and
question Executive Order No. 1;
 2. Whether or not Executive Order No. 1 violates the principle of separation of powers by
usurping the powers of Congress to create and to appropriate funds for public offices,
agencies and commissions;

3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the
DOJ;

4. Whether or not Executive Order No. 1 violates the equal protection clause; and

5. Whether or not petitioners are entitled to injunctive relief.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court
needs to ascertain whether the requisites for a valid exercise of its power of judicial review are
present.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.19

Among all these limitations, only the legal standing of the petitioners has been put at issue.

Legal Standing of the Petitioners

The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to
demonstrate their personal stake in the outcome of the case. It argues that the petitioners have not
shown that they have sustained or are in danger of sustaining any personal injury attributable to the
creation of the PTC. Not claiming to be the subject of the commission’s investigations, petitioners will
not sustain injury in its creation or as a result of its proceedings. 20

The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to
assail Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the
Congress as a body to which they belong as members. This certainly justifies their resolve to take
the cudgels for Congress as an institution and present the complaints on the usurpation of their
power and rights as members of the legislature before the Court. As held in Philippine Constitution
Association v. Enriquez,21

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

An act of the Executive which injures the institution of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a member of Congress. In such a case, any member
of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges
vested by the Constitution in their office remain inviolate. Thus, they are allowed to question the
validity of any official action which, to their mind, infringes on their prerogatives as legislators. 22

With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the
creation of the PTC and the budget for its operations. 23 It emphasizes that the funds to be used for
the creation and operation of the commission are to be taken from those funds already appropriated
by Congress. Thus, the allocation and disbursement of funds for the commission will not entail
congressional action but will simply be an exercise of the President’s power over contingent funds.

As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of
sustaining, any personal and direct injury attributable to the implementation of Executive Order No.
1. Nowhere in his petition is an assertion of a clear right that may justify his clamor for the Court to
exercise judicial power and to wield the axe over presidential issuances in defense of the
Constitution. The case of David v. Arroyo24 explained the deep-seated rules on locus standi. Thus:

Locus standi is defined as "a right of appearance in a court of justice on a given question." In private
suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of
the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be prosecuted
or defended in the name of the real party in interest." Accordingly, the "real-party-in interest" is
"the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit." Succinctly put, the plaintiff’s standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing
as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff
is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the
public concern. As held by the New York Supreme Court in People ex rel Case v. Collins: "In matter
of mere public right, however…the people are the real parties…It is at least the right, if not the duty,
of every citizen to interfere and see that a public offence be properly pursued and punished, and that
a public grievance be remedied." With respect to taxpayer’s suits, Terr v. Jordan held that "the right
of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a
private individual to invoke the judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of that action, and it is
not sufficient that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine
was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse
Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese
League of the Philippines v. Felix. [Emphases included. Citations omitted]

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest." 25

Thus, in Coconut Oil Refiners Association, Inc. v. Torres, 26 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirements may be
relaxed and a suit may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency Powers Cases,27 ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive orders although they
had only an indirect and general interest shared in common with the public.

The OSG claims that the determinants of transcendental importance 28 laid down in CREBA v. ERC
and Meralco29are non-existent in this case. The Court, however, finds reason in Biraogo’s assertion
that the petition covers matters of transcendental importance to justify the exercise of jurisdiction by
the Court. There are constitutional issues in the petition which deserve the attention of this Court in
view of their seriousness, novelty and weight as precedents. Where the issues are of transcendental
and paramount importance not only to the public but also to the Bench and the Bar, they should be
resolved for the guidance of all.30 Undoubtedly, the Filipino people are more than interested to know
the status of the President’s first effort to bring about a promised change to the country. The Court
takes cognizance of the petition not due to overwhelming political undertones that clothe the issue in
the eyes of the public, but because the Court stands firm in its oath to perform its constitutional duty
to settle legal controversies with overreaching significance to society.

Power of the President to Create the Truth Commission

In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public
office and not merely an adjunct body of the Office of the President. 31 Thus, in order that the
President may create a public office he must be empowered by the Constitution, a statute or an
authorization vested in him by law. According to petitioner, such power cannot be presumed 32 since
there is no provision in the Constitution or any specific law that authorizes the President to create a
truth commission.33 He adds that Section 31 of the Administrative Code of 1987, granting the
President the continuing authority to reorganize his office, cannot serve as basis for the creation of a
truth commission considering the aforesaid provision merely uses verbs such as "reorganize,"
"transfer," "consolidate," "merge," and "abolish." 34 Insofar as it vests in the President the plenary
power to reorganize the Office of the President to the extent of creating a public office, Section 31 is
inconsistent with the principle of separation of powers enshrined in the Constitution and must be
deemed repealed upon the effectivity thereof. 35

Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies
within the province of Congress and not with the executive branch of government. They maintain
that the delegated authority of the President to reorganize under Section 31 of the Revised
Administrative Code: 1) does not permit the President to create a public office, much less a truth
commission; 2) is limited to the reorganization of the administrative structure of the Office of the
President; 3) is limited to the restructuring of the internal organs of the Office of the President
Proper, transfer of functions and transfer of agencies; and 4) only to achieve simplicity, economy
and efficiency.36Such continuing authority of the President to reorganize his office is limited, and by
issuing Executive Order No. 1, the President overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the creation by the President of
a fact-finding body such as a truth commission. Pointing to numerous offices created by past
presidents, it argues that the authority of the President to create public offices within the Office of the
President Proper has long been recognized. 37 According to the OSG, the Executive, just like the
other two branches of government, possesses the inherent authority to create fact-finding
committees to assist it in the performance of its constitutionally mandated functions and in the
exercise of its administrative functions. 38 This power, as the OSG explains it, is but an adjunct of the
plenary powers wielded by the President under Section 1 and his power of control under Section 17,
both of Article VII of the Constitution. 39

It contends that the President is necessarily vested with the power to conduct fact-finding
investigations, pursuant to his duty to ensure that all laws are enforced by public officials and
employees of his department and in the exercise of his authority to assume directly the functions of
the executive department, bureau and office, or interfere with the discretion of his officials. 40 The
power of the President to investigate is not limited to the exercise of his power of control over his
subordinates in the executive branch, but extends further in the exercise of his other powers, such
as his power to discipline subordinates, 41 his power for rule making, adjudication and licensing
purposes42 and in order to be informed on matters which he is entitled to know. 43

The OSG also cites the recent case of Banda v. Ermita,44 where it was held that the President has
the power to reorganize the offices and agencies in the executive department in line with his
constitutionally granted power of control and by virtue of a valid delegation of the legislative power to
reorganize executive offices under existing statutes.

Thus, the OSG concludes that the power of control necessarily includes the power to create offices.
For the OSG, the President may create the PTC in order to, among others, put a closure to the
reported large scale graft and corruption in the government. 45

The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of
the power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31
contemplates "reorganization" as limited by the following functional and structural lines: (1)
restructuring the internal organization of the Office of the President Proper by abolishing,
consolidating or merging units thereof or transferring functions from one unit to another; (2)
transferring any function under the Office of the President to any other Department/Agency or vice
versa; or (3) transferring any agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These
point to situations where a body or an office is already existent but a modification or alteration
thereof has to be effected. The creation of an office is nowhere mentioned, much less envisioned in
said provision. Accordingly, the answer to the question is in the negative.

To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is
a misplaced supposition, even in the plainest meaning attributable to the term "restructure"– an
"alteration of an existing structure." Evidently, the PTC was not part of the structure of the Office of
the President prior to the enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB
v. Hon. Executive Secretary,46

But of course, the list of legal basis authorizing the President to reorganize any department or
agency in the executive branch does not have to end here. We must not lose sight of the very
source of the power – that which constitutes an express grant of power. Under Section 31, Book III
of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President,
subject to the policy in the Executive Office and in order to achieve simplicity, economy and
efficiency, shall have the continuing authority to reorganize the administrative structure of the Office
of the President." For this purpose, he may transfer the functions of other Departments or Agencies
to the Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions." It takes place when there is an alteration of the
existing structure of government offices or units therein, including the lines of control, authority and
responsibility between them. The EIIB is a bureau attached to the Department of Finance. It falls
under the Office of the President. Hence, it is subject to the President’s continuing authority to
reorganize. [Emphasis Supplied]

In the same vein, the creation of the PTC is not justified by the President’s power of control. Control
is essentially the power to alter or modify or nullify or set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of the former with that of the
latter.47 Clearly, the power of control is entirely different from the power to create public offices. The
former is inherent in the Executive, while the latter finds basis from either a valid delegation from
Congress, or his inherent duty to faithfully execute the laws.

The question is this, is there a valid delegation of power from Congress, empowering the President
to create a public office?

According to the OSG, the power to create a truth commission pursuant to the above provision finds
statutory basis under P.D. 1416, as amended by P.D. No. 1772. 48 The said law granted the
President the continuing authority to reorganize the national government, including the power to
group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and
classify functions, services and activities, transfer appropriations, and to standardize salaries and
materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has been invoked in
several cases such as Larin v. Executive Secretary. 49

The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create
a public office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the authority to reorganize the administrative structure of the
national government including the power to create offices and transfer appropriations pursuant to
one of the purposes of the decree, embodied in its last "Whereas" clause:

WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility
in the organization of the national government.

Clearly, as it was only for the purpose of providing manageability and resiliency during the interim,
P.D. No. 1416, as amended by P.D. No. 1772, became functus oficio upon the convening of the First
Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the
Solicitor General agrees with this view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of
P.D. 1416 says "it was enacted to prepare the transition from presidential to parliamentary. Now, in a
parliamentary form of government, the legislative and executive powers are fused, correct?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with
me that P.D. 1416 should not be considered effective anymore upon the promulgation, adoption,
ratification of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.

ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National
Government is deemed repealed, at least, upon the adoption of the 1987 Constitution, correct.

SOLICITOR GENERAL CADIZ: Yes, Your Honor.50

While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as
amended by P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of
the Constitution, imposing upon the President the duty to ensure that the laws are faithfully
executed. Section 17 reads:

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

As correctly pointed out by the respondents, the allocation of power in the three principal branches
of government is a grant of all powers inherent in them. The President’s power to conduct
investigations to aid him in ensuring the faithful execution of laws – in this case, fundamental laws on
public accountability and transparency – is inherent in the President’s powers as the Chief
Executive. That the authority of the President to conduct investigations and to create bodies to
execute this power is not explicitly mentioned in the Constitution or in statutes does not mean that he
is bereft of such authority.51 As explained in the landmark case of Marcos v. Manglapus: 52

x x x. The 1987 Constitution, however, brought back the presidential system of government and
restored the separation of legislative, executive and judicial powers by their actual distribution
among three distinct branches of government with provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the power to enforce the laws,
for the President is head of state as well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the President. It also grants
the President other powers that do not involve the execution of any provision of law, e.g., his power
over the country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the President cannot be said to be
limited only to the specific powers enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated.

It has been advanced that whatever power inherent in the government that is neither legislative nor
judicial has to be executive. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As
stated above, the powers of the President are not limited to those specific powers under the
Constitution.53 One of the recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees. This flows from the
obvious need to ascertain facts and determine if laws have been faithfully executed. Thus,
in Department of Health v. Camposano,54 the authority of the President to issue Administrative Order
No. 298, creating an investigative committee to look into the administrative charges filed against the
employees of the Department of Health for the anomalous purchase of medicines was upheld. In
said case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be
doubted. Having been constitutionally granted full control of the Executive Department, to which
respondents belong, the President has the obligation to ensure that all executive officials and
employees faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is
sustained. Such validity is not affected by the fact that the investigating team and the PCAGC had
the same composition, or that the former used the offices and facilities of the latter in conducting the
inquiry. [Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an
inquiry into matters which the President is entitled to know so that he can be properly advised and
guided in the performance of his duties relative to the execution and enforcement of the laws of the
land. And if history is to be revisited, this was also the objective of the investigative bodies created in
the past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the
Zenarosa Commission. There being no changes in the government structure, the Court is not
inclined to declare such executive power as non-existent just because the direction of the political
winds have changed.

On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds
for the operation of a public office, suffice it to say that there will be no appropriation but only an
allotment or allocations of existing funds already appropriated. Accordingly, there is no usurpation on
the part of the Executive of the power of Congress to appropriate funds. Further, there is no need to
specify the amount to be earmarked for the operation of the commission because, in the words of
the Solicitor General, "whatever funds the Congress has provided for the Office of the President will
be the very source of the funds for the commission."55 Moreover, since the amount that would be
allocated to the PTC shall be subject to existing auditing rules and regulations, there is no
impropriety in the funding.

Power of the Truth Commission to Investigate

The President’s power to conduct investigations to ensure that laws are faithfully executed is well
recognized. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17
thereof.56 As the Chief Executive, the president represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of his department. He has the authority to
directly assume the functions of the executive department. 57

Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and
corruption and to recommend the appropriate action. As previously stated, no quasi-judicial powers
have been vested in the said body as it cannot adjudicate rights of persons who come before it. It
has been said that "Quasi-judicial powers involve the power to hear and determine questions of fact
to which the legislative policy is to apply and to decide in accordance with the standards laid down
by law itself in enforcing and administering the same law."58 In simpler terms, judicial discretion is
involved in the exercise of these quasi-judicial power, such that it is exclusively vested in the
judiciary and must be clearly authorized by the legislature in the case of administrative agencies.

The distinction between the power to investigate and the power to adjudicate was delineated by the
Court in Cariño v. Commission on Human Rights. 59 Thus:

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into,
research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire
into systematically: "to search or inquire into: x x to subject to an official probe x x: to conduct an
official inquiry." The purpose of investigation, of course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of settling, deciding or resolving a
controversy involved in the facts inquired into by application of the law to the facts established by the
inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient
inquiry or observation. To trace or track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to
inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative
function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x
an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter
or matters."

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide,

determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and
duties of the parties to a court case) on the merits of issues raised: x x to pass judgment on: settle
judicially: x x act as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial
or quasi-judicial powers: x x to award or grant judicially in a case of controversy x x."

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine
finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially,
to decide, settle or decree, or to sentence or condemn. x x. Implies a judicial determination of a fact,
and the entry of a judgment." [Italics included. Citations Omitted]

Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or
even a quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom
the facts of a controversy is not a judicial function. To be considered as such, the act of receiving
evidence and arriving at factual conclusions in a controversy must be accompanied by the authority
of applying the law to the factual conclusions to the end that the controversy may be decided or
resolved authoritatively, finally and definitively, subject to appeals or modes of review as may be
provided by law.60 Even respondents themselves admit that the commission is bereft of any quasi-
judicial power.61

Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or
erode their respective powers. If at all, the investigative function of the commission will complement
those of the two offices. As pointed out by the Solicitor General, the recommendation to prosecute is
but a consequence of the overall task of the commission to conduct a fact-finding
investigation."62 The actual prosecution of suspected offenders, much less adjudication on the merits
of the charges against them,63 is certainly not a function given to the commission. The phrase, "when
in the course of its investigation," under Section 2(g), highlights this fact and gives credence to a
contrary interpretation from that of the petitioners. The function of determining probable cause for the
filing of the appropriate complaints before the courts remains to be with the DOJ and the
Ombudsman.64

At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is not exclusive but is
shared with other similarly authorized government agencies. Thus, in the case of Ombudsman v.
Galicia,65 it was written:

This power of investigation granted to the Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with other similarly authorized government agencies
such as the PCGG and judges of municipal trial courts and municipal circuit trial courts. The power
to conduct preliminary investigation on charges against public employees and officials is likewise
concurrently shared with the Department of Justice. Despite the passage of the Local Government
Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the President and
the local Sanggunians to investigate complaints against local elective officials. [Emphasis supplied].

Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal
cases under Section 15 (1) of R.A. No. 6770, which states:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any
public officer or employee, office or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and,
in the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory
agency of government, the investigation of such cases. [Emphases supplied]

The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a
preliminary investigation or the determination of the existence of probable cause. This is
categorically out of the PTC’s sphere of functions. Its power to investigate is limited to obtaining facts
so that it can advise and guide the President in the performance of his duties relative to the
execution and enforcement of the laws of the land. In this regard, the PTC commits no act of
usurpation of the Ombudsman’s primordial duties.

The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III,
Book IV in the Revised Administrative Code is by no means exclusive and, thus, can be shared with
a body likewise tasked to investigate the commission of crimes.

Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be
accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano
Commission and the Zenarosa Commission, its findings would, at best, be recommendatory in
nature. And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide
whether or not to reject the recommendation. These offices, therefore, are not deprived of their
mandated duties but will instead be aided by the reports of the PTC for possible indictments for
violations of graft laws.

Violation of the Equal Protection Clause

Although the purpose of the Truth Commission falls within the investigative power of the President,
the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its
apparent transgression of the equal protection clause enshrined in Section 1, Article III (Bill of
Rights) of the 1987 Constitution. Section 1 reads:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.

The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard.
They contend that it does not apply equally to all members of the same class such that the intent of
singling out the "previous administration" as its sole object makes the PTC an "adventure in partisan
hostility."66 Thus, in order to be accorded with validity, the commission must also cover reports of
graft and corruption in virtually all administrations previous to that of former President Arroyo.67

The petitioners argue that the search for truth behind the reported cases of graft and corruption must
encompass acts committed not only during the administration of former President Arroyo but also
during prior administrations where the "same magnitude of controversies and anomalies" 68 were
reported to have been committed against the Filipino people. They assail the classification
formulated by the respondents as it does not fall under the recognized exceptions because first,
"there is no substantial distinction between the group of officials targeted for investigation by
Executive Order No. 1 and other groups or persons who abused their public office for personal gain;
and second, the selective classification is not germane to the purpose of Executive Order No. 1 to
end corruption."69 In order to attain constitutional permission, the petitioners advocate that the
commission should deal with "graft and grafters prior and subsequent to the Arroyo administration
with the strong arm of the law with equal force."70

Position of respondents

According to respondents, while Executive Order No. 1 identifies the "previous administration" as the
initial subject of the investigation, following Section 17 thereof, the PTC will not confine itself to
cases of large scale graft and corruption solely during the said administration. 71 Assuming arguendo
that the commission would confine its proceedings to officials of the previous administration, the
petitioners argue that no offense is committed against the equal protection clause for "the
segregation of the transactions of public officers during the previous administration as possible
subjects of investigation is a valid classification based on substantial distinctions and is germane to
the evils which the Executive Order seeks to correct."72 To distinguish the Arroyo administration from
past administrations, it recited the following:

First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the
previous administration which have eroded public confidence in public institutions. There is,
therefore, an urgent call for the determination of the truth regarding certain reports of large scale
graft and corruption in the government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from committing the evil, restore the
people’s faith and confidence in the Government and in their public servants.

Second. The segregation of the preceding administration as the object of fact-finding is warranted by
the reality that unlike with administrations long gone, the current administration will most likely bear
the immediate consequence of the policies of the previous administration.

Third. The classification of the previous administration as a separate class for investigation lies in the
reality that the evidence of possible criminal activity, the evidence that could lead to recovery of
public monies illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws
are faithfully executed, are more easily established in the regime that immediately precede the
current administration.

Fourth. Many administrations subject the transactions of their predecessors to investigations to

provide closure to issues that are pivotal to national life or even as a routine measure of due
diligence and good housekeeping by a nascent administration like the Presidential Commission on
Good Government (PCGG), created by the late President Corazon C. Aquino under Executive Order
No. 1 to pursue the recovery of ill-gotten wealth of her predecessor former President Ferdinand
Marcos and his cronies, and the Saguisag Commission created by former President Joseph Estrada
under Administrative Order No, 53, to form an ad-hoc and independent citizens’ committee to
investigate all the facts and circumstances surrounding "Philippine Centennial projects" of his
predecessor, former President Fidel V. Ramos.73 [Emphases supplied]

Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair discrimination offends the requirements
of justice and fair play. It has been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness
in general may be challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.74

"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities
imposed."75 It "requires public bodies and institutions to treat similarly situated individuals in a similar
manner."76 "The purpose of the equal protection clause is to secure every person within a state’s
jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms
of a statue or by its improper execution through the state’s duly constituted authorities." 77 "In other
words, the concept of equal justice under the law requires the state to govern impartially, and it may
not draw distinctions between individuals solely on differences that are irrelevant to a legitimate
governmental objective."78

The equal protection clause is aimed at all official state actions, not just those of the legislature. 79 Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken. 80

It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not
limited to existing conditions only; and

(4) It applies equally to all members of the same class.81 "Superficial differences do not make for a
valid classification."82

For a classification to meet the requirements of constitutionality, it must include or embrace all
persons who naturally belong to the class.83 "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights conferred and obligations imposed. It
is not necessary that the classification be made with absolute symmetry, in the sense that the
members of the class should possess the same characteristics in equal degree. Substantial
similarity will suffice; and as long as this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a class differs from the other members,
as long as that class is substantially distinguishable from all others, does not justify the non-
application of the law to him."84

The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who
may thereafter be in similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. As elucidated in Victoriano v. Elizalde
Rope Workers' Union85 and reiterated in a long line of cases,86

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law,
as in the other departments of knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real differences, that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably
arbitrary. [Citations omitted]

Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of
the equal protection clause. The clear mandate of the envisioned truth commission is to investigate
and find out the truth "concerning the reported cases of graft and corruption during the previous
administration"87 only. The intent to single out the previous administration is plain, patent and
manifest. Mention of it has been made in at least three portions of the questioned executive order.
Specifically, these are:

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and corruption during the previous administration, and
which will recommend the prosecution of the offenders and secure justice for all;

SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find
the truth on, and toward this end, investigate reports of graft and corruption of such scale and
magnitude that shock and offend the moral and ethical sensibilities of the people, committed by
public officers and employees, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration; and thereafter recommend the appropriate action
or measure to be taken thereon to ensure that the full measure of justice shall be served without fear
or favor.

SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during the previous administration and
thereafter submit its finding and recommendations to the President, Congress and the Ombudsman.
[Emphases supplied]

In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class,
that is, a class of past administrations. It is not a class of its own. Not to include past administrations
similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such
discriminating differentiation clearly reverberates to label the commission as a vehicle for
vindictiveness and selective retribution.

Though the OSG enumerates several differences between the Arroyo administration and other past
administrations, these distinctions are not substantial enough to merit the restriction of the
investigation to the "previous administration" only. The reports of widespread corruption in the Arroyo
administration cannot be taken as basis for distinguishing said administration from earlier
administrations which were also blemished by similar widespread reports of impropriety. They are
not inherent in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz put it,
"Superficial differences do not make for a valid classification."88

The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the
intended investigation to the previous administration only. The OSG ventures to opine that "to
include other past administrations, at this point, may unnecessarily overburden the commission and
lead it to lose its effectiveness."89The reason given is specious. It is without doubt irrelevant to the
legitimate and noble objective of the PTC to stamp out or "end corruption and the evil it breeds." 90

The probability that there would be difficulty in unearthing evidence or that the earlier reports
involving the earlier administrations were already inquired into is beside the point. Obviously,
deceased presidents and cases which have already prescribed can no longer be the subjects of
inquiry by the PTC. Neither is the PTC expected to conduct simultaneous investigations of previous
administrations, given the body’s limited time and resources. "The law does not require the
impossible" (Lex non cogit ad impossibilia).91

Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of
investigating almost a century’s worth of graft cases. However, the fact remains that Executive Order
No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the
truth, must not exclude the other past administrations. The PTC must, at least, have the authority to
investigate all past administrations. While reasonable prioritization is permitted, it should not be
arbitrary lest it be struck down for being unconstitutional. In the often quoted language of Yick Wo v.
Hopkins,92

Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered
by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to their rights, the denial of equal
justice is still within the prohibition of the constitution. [Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court,
however, is of the considered view that although its focus is restricted, the constitutional guarantee
of equal protection under the laws should not in any way be circumvented. The Constitution is the
fundamental and paramount law of the nation to which all other laws must conform and in
accordance with which all private rights determined and all public authority administered. 93 Laws that
do not conform to the Constitution should be stricken down for being unconstitutional. 94While the
thrust of the PTC is specific, that is, for investigation of acts of graft and corruption, Executive Order
No. 1, to survive, must be read together with the provisions of the Constitution. To exclude the
earlier administrations in the guise of "substantial distinctions" would only confirm the petitioners’
lament that the subject executive order is only an "adventure in partisan hostility." In the case of US
v. Cyprian,95 it was written: "A rather limited number of such classifications have routinely been held
or assumed to be arbitrary; those include: race, national origin, gender, political activity or
membership in a political party, union activity or membership in a labor union, or more generally the
exercise of first amendment rights."

To reiterate, in order for a classification to meet the requirements of constitutionality, it must include
or embrace all persons who naturally belong to the class. 96 "Such a classification must not be based
on existing circumstances only, or so constituted as to preclude additions to the number included
within a class, but must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in situations and circumstances which are
relative to the discriminatory legislation and which are indistinguishable from those of the members
of the class must be brought under the influence of the law and treated by it in the same way as are
the members of the class."97

The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the
equal protection clause."98 "Legislation is not unconstitutional merely because it is not all-embracing
and does not include all the evils within its reach." 99 It has been written that a regulation challenged
under the equal protection clause is not devoid of a rational predicate simply because it happens to
be incomplete.100 In several instances, the underinclusiveness was not considered a valid reason to
strike down a law or regulation where the purpose can be attained in future legislations or
regulations. These cases refer to the "step by step" process. 101 "With regard to equal protection
claims, a legislature does not run the risk of losing the entire remedial scheme simply because it
fails, through inadvertence or otherwise, to cover every evil that might conceivably have been
attacked."102

In Executive Order No. 1, however, there is no inadvertence. That the previous administration was
picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at
least three times in the assailed executive order. It must be noted that Executive Order No. 1 does
not even mention any particular act, event or report to be focused on unlike the investigative
commissions created in the past. "The equal protection clause is violated by purposeful and
intentional discrimination."103

To disprove petitioners’ contention that there is deliberate discrimination, the OSG clarifies that the
commission does not only confine itself to cases of large scale graft and corruption committed during
the previous administration.104The OSG points to Section 17 of Executive Order No. 1, which
provides:

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include
the investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.

The Court is not convinced. Although Section 17 allows the President the discretion to expand the
scope of investigations of the PTC so as to include the acts of graft and corruption committed in
other past administrations, it does not guarantee that they would be covered in the future. Such
expanded mandate of the commission will still depend on the whim and caprice of the President. If
he would decide not to include them, the section would then be meaningless. This will only fortify the
fears of the petitioners that the Executive Order No. 1 was "crafted to tailor-fit the prosecution of
officials and personalities of the Arroyo administration." 105

The Court tried to seek guidance from the pronouncement in the case of Virata v.
Sandiganbayan,106 that the "PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does
not violate the equal protection clause." The decision, however, was devoid of any discussion on
how such conclusory statement was arrived at, the principal issue in said case being only the
sufficiency of a cause of action.

A final word

The issue that seems to take center stage at present is - whether or not the Supreme Court, in the
exercise of its constitutionally mandated power of Judicial Review with respect to recent initiatives of
the legislature and the executive department, is exercising undue interference. Is the Highest
Tribunal, which is expected to be the protector of the Constitution, itself guilty of violating
fundamental tenets like the doctrine of separation of powers? Time and again, this issue has been
addressed by the Court, but it seems that the present political situation calls for it to once again
explain the legal basis of its action lest it continually be accused of being a hindrance to the nation’s
thrust to progress.

The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested
with Judicial Power that "includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or not
there has been a grave of abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the government."

Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power
to declare a treaty, international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation unconstitutional. This power also includes the duty to rule
on the constitutionality of the application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations. These provisions, however, have been fertile
grounds of conflict between the Supreme Court, on one hand, and the two co-equal bodies of
government, on the other. Many times the Court has been accused of asserting superiority over the
other departments.

To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to
wit: "And when the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them." 107

Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-
equal body but rather simply making sure that any act of government is done in consonance with the
authorities and rights allocated to it by the Constitution. And, if after said review, the Court finds no
constitutional violations of any sort, then, it has no more authority of proscribing the actions under
review. Otherwise, the Court will not be deterred to pronounce said act as void and unconstitutional.

It cannot be denied that most government actions are inspired with noble intentions, all geared
towards the betterment of the nation and its people. But then again, it is important to remember this
ethical principle: "The end does not justify the means." No matter how noble and worthy of
admiration the purpose of an act, but if the means to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it cannot still be allowed. 108 The Court cannot just
turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined
principles.

"The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency
must not be allowed to sap its strength nor greed for power debase its rectitude." 109

Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by
the present administration. Perhaps a revision of the executive issuance so as to include the earlier
past administrations would allow it to pass the test of reasonableness and not be an affront to the
Constitution. Of all the branches of the government, it is the judiciary which is the most interested in
knowing the truth and so it will not allow itself to be a hindrance or obstacle to its attainment. It must,
however, be emphasized that the search for the truth must be within constitutional bounds for "ours
is still a government of laws and not of men." 110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the
provisions of Executive Order No. 1.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 93252 August 5, 1991

RODOLFO T. GANZON, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, respondents.

G.R. No. 93746 August 5,1991

MARY ANN RIVERA ARTIEDA, petitioner,

vs.
HON. LUIS SANTOS, in his capacity as Secretary of the Department of Local Government,
NICANOR M. PATRICIO, in his capacity as Chief, Legal Service of the Department of Local
Government and SALVADOR CABALUNA JR., respondents.

G.R. No. 95245 August 5,1991

RODOLFO T. GANZON, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, in his capacity as the
Secretary of the Department of Local Government, respondents.

Nicolas P. Sonalan for petitioner in 93252.

Romeo A. Gerochi for petitioner in 93746.
Eugenio Original for petitioner in 95245.

SARMIENTO, J.:

The petitioners take common issue on the power of the President (acting through the Secretary of
Local Government), to suspend and/or remove local officials.

The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of the
Sangguniang Panglunsod thereof (G.R. No. 93746), respectively.
The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in number,
filed against him by various city officials sometime in 1988, on various charges, among them, abuse
of authority, oppression, grave misconduct, disgraceful and immoral conduct, intimidation, culpable
violation of the Constitution, and arbitrary detention. 1 The personalities involved are Joceleehn
Cabaluna, a clerk at the city health office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza,
Assistant City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German
Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and
Pancho Erbite, a barangay tanod. The complaints against the Mayor are set forth in the opinion of
the respondent Court of Appeals.2 We quote:

xxx xxx xxx

In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City Health,
Office of Iloilo City charged that due to political reasons, having supported the rival
candidate, Mrs. Rosa 0. Caram, the petitioner City Mayor, using as an excuse the exigency
of the service and the interest of the public, pulled her out from rightful office where her
qualifications are best suited and assigned her to a work that should be the function of a non-
career service employee. To make matters worse, a utility worker in the office of the Public
Services, whose duties are alien to the complainant's duties and functions, has been detailed
to take her place. The petitioner's act are pure harassments aimed at luring her away from
her permanent position or force her to resign.

In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her to
perform task not befitting her position as Assistant City Health Officer of Iloilo City; that her
office was padlocked without any explanation or justification; that her salary was withheld
without cause since April 1, 1988; that when she filed her vacation leave, she was given the
run-around treatment in the approval of her leave in connivance with Dr. Rodolfo Villegas
and that she was the object of a well-engineered trumped-up charge in an administrative
complaint filed by Dr. Rodolfo Villegas (Annex B).

On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City and
complainants Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and Eduardo Pefia
Pedondo are members of the Sangguniang Panglunsod of the City of Iloilo. Their complaint
arose out from the case where Councilor Larry Ong, whose key to his office was
unceremoniously and without previous notice, taken by petitioner. Without an office,
Councilor Ong had to hold office at Plaza Libertad, The Vice-Mayor and the other
complainants sympathized with him and decided to do the same. However, the petitioner,
together with its fully-armed security men, forcefully drove them away from Plaza Libertad.
Councilor Ong denounced the petitioner's actuations the following day in the radio station
and decided to hold office at the Freedom Grandstand at Iloilo City and there were so many
people who gathered to witness the incident. However, before the group could reach the
area, the petitioner, together with his security men, led the firemen using a firetruck in dozing
water to the people and the bystanders.

Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed by
former mayor Rosa O. Caram. On March 13, 1988, without the benefit of charges filed
against him and no warrant of arrest was issued, Erbite was arrested and detained at the
City Jail of Iloilo City upon orders of petitioner. In jail, he was allegedly mauled by other
detainees thereby causing injuries He was released only the following day.3

The Mayor thereafter answered4 and the cases were shortly set for hearing. The opinion of the Court
of Appeals also set forth the succeeding events:
 xxx xxx xxx

The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June 20-21,
1988 at the Regional Office of the Department of Local Government in Iloilo City. Notices,
through telegrams, were sent to the parties (Annex L) and the parties received them,
including the petitioner. The petitioner asked for a postponement before the scheduled date
of hearing and was represented by counsel, Atty. Samuel Castro. The hearing officers, Atty.
Salvador Quebral and Atty. Marino Bermudez had to come all the way from Manila for the
two-day hearings but was actually held only on June 20,1988 in view of the inability and
unpreparedness of petitioner's counsel.

The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City. Again,
the petitioner attempted to delay the proceedings and moved for a postponement under the
excuse that he had just hired his counsel. Nonetheless, the hearing officers denied the
motion to postpone, in view of the fact that the parties were notified by telegrams of the
scheduled hearings (Annex M).

In the said hearings, petitioner's counsel cross-examined the complainants and their
witnesses.

Finding probable grounds and reasons, the respondent issued a preventive suspension
order on August 11, 1988 to last until October 11,1988 for a period of sixty (60) days.

Then the next investigation was set on September 21, 1988 and the petitioner again asked
for a postponement to September 26,1988. On September 26, 1988, the complainants and
petitioner were present, together with their respective counsel. The petitioner sought for a
postponement which was denied. In these hearings which were held in Mala the petitioner
testified in Adm. Case No. C-10298 and 10299.

The investigation was continued regarding the Malabor case and the complainants testified
including their witnesses.

On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement of the
October 24, 1988 hearing to November 7 to 11, 1988 which was granted. However, the
motion for change of venue as denied due to lack of funds. At the hearing on November 7,
1988, the parties and counsel were present. Petitioner reiterated his motion to change venue
and moved for postponement anew. The counsel discussed a proposal to take the deposition
of witnesses in Iloilo City so the hearing was indefinitely postponed. However, the parties
failed to come to terms and after the parties were notified of the hearing, the investigation
was set to December 13 to 15, 1988.

The petitioner sought for another postponement on the ground that his witnesses were sick
or cannot attend the investigation due to lack of transportation. The motion was denied and
the petitioner was given up to December 14, 1988 to present his evidence.

On December 14,1988, petitioner's counsel insisted on his motion for postponement and the
hearing officers gave petitioner up to December 15, 1988 to present his evidence. On
December 15, 1988, the petitioner failed to present evidence and the cases were considered
submitted for resolution.

In the meantime, a prima facie evidence was found to exist in the arbitrary detention case
filed by Pancho Erbite so the respondent ordered the petitioner's second preventive
 suspension dated October 11, 1988 for another sixty (60) days. The petitioner was able to
obtain a restraining order and a writ of preliminary injunction in the Regional Trial Court,
Branch 33 of Iloilo City. The second preventive suspension was not enforced. 5

Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against
the respondent Secretary of Local Government (now, Interior) in the Regional Trial Court, Iloilo City,
where he succeeded in obtaining a writ of preliminary injunction. Presently, he instituted CA-G.R. SP
No. 16417, an action for prohibition, in the respondent Court of Appeals.

Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively
suspending Mayor Ganzon for another sixty days, the third time in twenty months, and designating
meantime Vice-Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor Ganzon commenced
CA-G.R. SP No. 20736 of the Court of Appeals, a petition for prohibition, 6 (Malabor it is to be noted,
is one of the complainants, and hence, he is interested in seeing Mayor Ganzon ousted.)

On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP No. 16417.
On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R. SP No. 20736. In a
Resolution dated January 24, 1990, it issued a Resolution certifying the petition of Mary Ann Artieda,
who had been similary charged by the respondent Secretary, to this Court.

On June 26,1990, we issued a Temporary Restraining Order, barring the respondent Secretary from
implementing the suspension orders, and restraining the enforcement of the Court of Appeals' two
decisions.

In our Resolution of November 29, 1990, we consolidated all three cases. In our Resolutions of
January 15, 1991, we gave due course thereto.

Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local Government in
hearing the ten cases against him, had denied him due process of law and that the respondent
Secretary had been "biased, prejudicial and hostile" towards him 7 arising from his (Mayor Ganzon's)
alleged refusal to join the Laban ng Demokratikong Pilipino party8 and the running political rivalry
they maintained in the last congressional and local elections; 9 and his alleged refusal to operate a
lottery in Iloilo City.10 He also alleges that he requested the Secretary to lift his suspension since it
had come ninety days prior to an election (the barangay elections of November 14,
1988),11 notwithstanding which, the latter proceeded with the hearing and meted out two more
suspension orders of the aforementioned cases.12 He likewise contends that he sought to bring the
cases to Iloilo City (they were held in Manila) in order to reduce the costs of proceeding, but the
Secretary rejected his request.13 He states that he asked for postponement on "valid and
justifiable"14 grounds, among them, that he was suffering from a heart ailment which required
confinement; that his "vital"15 witness was also hospitalized16 but that the latter unduly denied his
request.17

Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of Local
Government is devoid, in any event, of any authority to suspend and remove local officials, an
argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No. 93746).

As to Mayor Ganzon's charges of denial of due process, the records do not show very clearly in what
manner the Mayor might have been deprived of his rights by the respondent Secretary. His claims
that he and Secretary Luis-Santos were (are) political rivals and that his "persecution" was politically
motivated are pure speculation and although the latter does not appear to have denied these
contentions (as he, Mayor Ganzon, claims), we can not take his word for it the way we would have
under less political circumstances, considering furthermore that "political feud" has often been a
good excuse in contesting complaints.

The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had attempted
to seduce him to join the administration party and to operate a lottery in Iloilo City. Again, although
the Secretary failed to rebut his allegations, we can not accept them, at face value, much more, as
judicial admissions as he would have us accept them 18 for the same reasons above-stated and
furthermore, because his say so's were never corroborated by independent testimonies. As a
responsible public official, Secretary Santos, in pursuing an official function, is presumed to be
performing his duties regularly and in the absence of contrary evidence, no ill motive can be
ascribed to him.

As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer the
hearing on account of the ninety-day ban prescribed by Section 62 of Batas Blg. 337, the Court finds
the question to be moot and academic since we have in fact restrained the Secretary from further
hearing the complaints against the petitioners. 19

As to his request, finally, for postponements, the Court is afraid that he has not given any compelling
reason why we should overturn the Court of Appeals, which found no convincing reason to overrule
Secretary Santos in denying his requests. Besides, postponements are a matter of discretion on the
part of the hearing officer, and based on Mayor Ganzon's above story, we are not convinced that the
Secretary has been guilty of a grave abuse of discretion.

The Court can not say, under these circumstances, that Secretary Santos' actuations deprived
Mayor Ganzon of due process of law.

We come to the core question: Whether or not the Secretary of Local Government, as the
President's alter ego, can suspend and/or remove local officials.

It is the petitioners' argument that the 1987 Constitution20 no longer allows the President, as the 1935
and 1973 Constitutions did, to exercise the power of suspension and/or removal over local officials.
According to both petitioners, the Constitution is meant, first, to strengthen self-rule by local
government units and second, by deleting the phrase21 as may be provided by law to strip the
President of the power of control over local governments. It is a view, so they contend, that finds
support in the debates of the Constitutional Commission. The provision in question reads as follows:

Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions. 22

It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:

Sec. 10. The President shall have control of all the executive departments, bureaus, or
offices, exercise general supervision over all Local governments as may be provided by law,
and take care that the laws be faithfully executed. 23

The petitioners submit that the deletion (of "as may be provided by law") is significant, as their
argument goes, since: (1) the power of the President is "provided by law" and (2) hence, no law may
provide for it any longer.
It is to be noted that in meting out the suspensions under question, the Secretary of Local
Government acted in consonance with the specific legal provisions of Batas Blg. 337, the Local
Government Code, we quote:

Sec. 62. Notice of Hearing. — Within seven days after the complaint is filed, the Minister of
local Government, or the sanggunian concerned, as the case may be, shall require the
respondent to submit his verified answer within seven days from receipt of said complaint,
and commence the hearing and investigation of the case within ten days after receipt of such
answer of the respondent. No investigation shall be held within ninety days immediately prior
to an election, and no preventive suspension shall be imposed with the said period. If
preventive suspension has been imposed prior to the aforesaid period, the preventive
suspension shall be lifted.24

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the
Minister of Local Government if the respondent is a provincial or city official, by the provincial
governor if the respondent is an elective municipal official, or by the city or municipal mayor if
the respondent is an elective barangay official.

(2) Preventive suspension may be imposed at any time after the issues are joined, when
there is reasonable ground to believe that the respondent has committed the act or acts
complained of, when the evidence of culpability is strong, when the gravity of the offense so
warrants, or when the continuance in office of the respondent could influence the witnesses
or pose a threat to the safety and integrity of the records and other evidence. In all cases,
preventive suspension shall not extend beyond sixty days after the start of said suspension.

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office
without prejudice to the continuation of the proceedings against him until its termination.
However ' if the delay in the proceedings of the case is due to his fault, neglect or request,
the time of the delay shall not be counted in computing the time of suspension. 25

The issue, as the Court understands it, consists of three questions: (1) Did the 1987 Constitution, in
deleting the phrase "as may be provided by law" intend to divest the President of the power to
investigate, suspend, discipline, and/or remove local officials? (2) Has the Constitution repealed
Sections 62 and 63 of the Local Government Code? (3) What is the significance of the change in the
constitutional language?

It is the considered opinion of the Court that notwithstanding the change in the constitutional
language, the charter did not intend to divest the legislature of its right or the President of her
prerogative as conferred by existing legislation to provide administrative sanctions against local
officials. It is our opinion that the omission (of "as may be provided by law") signifies nothing more
than to underscore local governments' autonomy from congress and to break Congress' "control"
over local government affairs. The Constitution did not, however, intend, for the sake of local
autonomy, to deprive the legislature of all authority over municipal corporations, in particular,
concerning discipline.

Autonomy does not, after all, contemplate making mini-states out of local government units, as in the
federal governments of the United States of America (or Brazil or Germany), although Jefferson is
said to have compared municipal corporations euphemistically to "small republics."26 Autonomy, in
the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the
legislative responsibility under the Constitution and as the "supervision clause" itself suggest-is to
wean local government units from over-dependence on the central government.
It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but subject
to, among other things, the passage of a local government code, 27 a local tax law,28 income
distribution legislation,29 and a national representation law,30 and measures31 designed to realize
autonomy at the local level. It is also noteworthy that in spite of autonomy, the Constitution places
the local government under the general supervision of the Executive. It is noteworthy finally, that the
Charter allows Congress to include in the local government code provisions for removal of local
officials, which suggest that Congress may exercise removal powers, and as the existing Local
Government Code has done, delegate its exercise to the President. Thus:

Sec. 3. The Congress shall 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.32

As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress, sub
silencio, the objective of the framers to strengthen local autonomy by severing congressional control
of its affairs, as observed by the Court of Appeals, like the power of local legislation. 33 The
Constitution did nothing more, however, and insofar as existing legislation authorizes the President
(through the Secretary of Local Government) to proceed against local officials administratively, the
Constitution contains no prohibition.

The petitioners are under the impression that the Constitution has left the President mere
supervisory powers, which supposedly excludes the power of investigation, and denied her control,
which allegedly embraces disciplinary authority. It is a mistaken impression because legally,
"supervision" is not incompatible with disciplinary authority as this Court has held, 34 thus:

xxx xxx xxx

It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this Court had
occasion to discuss the scope and extent of the power of supervision by the President over
local government officials in contrast to the power of control given to him over executive
officials of our government wherein it was emphasized that the two terms, control and
supervision, are two different things which differ one from the other in meaning and extent.
Thus in that case the Court has made the following digression: "In administration law
supervision means overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them the former may take such
action or step as prescribed by law to make them perform their duties. Control, on the other
hand, means the power of an officer to alter or modify or nullify of 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." But from this pronouncement it cannot be reasonably
inferred that the power of supervision of the President over local government officials does
not include the power of investigation when in his opinion the good of the public service so
requires, as postulated in Section 64(c) of the Revised Administrative Code. ... 35

xxx xxx xxx

"Control" has been defined as "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 test of the latter."36"Supervision" on the other hand means "overseeing or the power or
authority of an officer to see that subordinate officers perform their duties. 37 As we held,38 however,
"investigating" is not inconsistent with "overseeing", although it is a lesser power than "altering". The
impression is apparently exacerbated by the Court's pronouncements in at least three cases, Lacson
v. Roque,39 Hebron v. Reyes,40 and Mondano v. Silvosa,41 and possibly, a fourth one, Pelaez v.
Auditor General.42 In Lacson, this Court said that the President enjoyed no control powers but only
supervision "as may be provided by law,"43 a rule we reiterated in Hebron, and Mondano. In Pelaez,
we stated that the President "may not . . . suspend an elective official of a regular municipality or
take any disciplinary action against him, except on appeal from a decision of the corresponding
provincial board."44 However, neither Lacsonnor Hebron nor Mondano categorically banned the Chief
Executive from exercising acts of disciplinary authority because she did not exercise control powers,
but because no law allowed her to exercise disciplinary authority. Thus, according to Lacson:

The contention that the President has inherent power to remove or suspend municipal
officers is without doubt not well taken. Removal and suspension of public officers are
always controlled by the particular law applicable and its proper construction subject to
constitutional limitations.45

In Hebron we stated:

Accordingly, when the procedure for the suspension of an officer is specified by law, the
same must be deemed mandatory and adhered to strictly, in the absence of express or clear
provision to the contrary-which does not et with respect to municipal officers ...46

In Mondano, the Court held:

... The Congress has expressly and specifically lodged the provincial supervision over
municipal officials in the provincial governor who is authorized to "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." And if the charges are serious, "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
by one affecting the official integrity of the officer in question." Section 86 of the Revised
Administration Code adds nothing to the power of supervision to be exercised by the
Department Head over the administration of ... municipalities ... . If it be construed that it
does and such additional power is the same authority as that vested in the Department Head
by section 79(c) of the Revised Administrative Code, then such additional power must be
deemed to have been abrogated by Section 110(l), Article VII of the Constitution. 47

xxx xxx xxx

In Pelaez, we stated that the President can not impose disciplinary measures on local officials
except on appeal from the provincial board pursuant to the Administrative Code. 48

Thus, in those case that this Court denied the President the power (to suspend/remove) it was not
because we did not think that the President can not exercise it on account of his limited power, but
because the law lodged the power elsewhere. But in those cases ii which the law gave him the
power, the Court, as in Ganzon v. Kayanan, found little difficulty in sustaining him. 49

The Court does not believe that the petitioners can rightfully point to the debates of the
Constitutional Commission to defeat the President's powers. The Court believes that the
deliberations are by themselves inconclusive, because although Commissioner Jose Nolledo would
exclude the power of removal from the President,50 Commissioner Blas Ople would not.51

The Court is consequently reluctant to say that the new Constitution has repealed the Local
Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not incompatible
terms and one may stand with the other notwithstanding the stronger expression of local autonomy
under the new Charter. We have indeed held that in spite of the approval of the Charter, Batas Blg.
337 is still in force and effect.52

As the Constitution itself declares, local autonomy means "a more responsive and accountable local
government structure instituted through a system of decentralization." 53 The Constitution as we
observed, does nothing more than to break up the monopoly of the national government over the
affairs of local governments and as put by political adherents, to "liberate the local governments from
the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and
inter-dependence between the central administration and local government units, or otherwise, to
user in a regime of federalism. The Charter has not taken such a radical step. Local governments,
under the Constitution, are subject to regulation, however limited, and for no other purpose than
precisely, albeit paradoxically, to enhance self- government.

As we observed in one case,54 decentralization means devolution of national administration but not
power to the local levels. Thus:

Now, autonomy is either decentralization of administration or decentralization of power.

There is decentralization of administration when the central government delegates
administrative powers to political subdivisions in order to broaden the base of government
power and in the process to make local governments "more responsive and accountable,"
and "ensure their fullest development as self-reliant communities and make them more
effective partners in the pursuit of national development and social progress." At the same
time, it relieves the central government of the burden of managing local affairs and enables it
to concentrate on national concerns. The President exercises "general supervision" over
them, but only to "ensure that local affairs are administered according to law." He has no
control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the
favor of local governments units declared to be autonomous, In that case, the autonomous
government is free to chart its own destiny and shape its future with minimum intervention
from central authorities. According to a constitutional author, decentralization of power
amounts to "self-immolation," since in that event, the autonomous government becomes
accountable not to the central authorities but to its constituency.55

The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit another matter.
What bothers the Court, and what indeed looms very large, is the fact that since the Mayor is facing
ten administrative charges, the Mayor is in fact facing the possibility of 600 days of suspension, in
the event that all ten cases yield prima faciefindings. The Court is not of course tolerating
misfeasance in public office (assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly
another question to make him serve 600 days of suspension, which is effectively, to suspend him out
of office. As we held:56

2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office
does not expire until 1986. Were it not for this information and the suspension decreed by
the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act, he would have
been all this while in the full discharge of his functions as such municipal mayor. He was
 elected precisely to do so. As of October 26, 1983, he has been unable to. it is a basic
assumption of the electoral process implicit in the right of suffrage that the people are entitled
to the services of elective officials of their choice. For misfeasance or malfeasance, any of
them could, of course, be proceeded against administratively or, as in this instance,
criminally. In either case, Ms culpability must be established. Moreover, if there be a criminal
action, he is entitled to the constitutional presumption of innocence. A preventive suspension
may be justified. Its continuance, however, for an unreasonable length of time raises a due
process question. For even if thereafter he were acquitted, in the meanwhile his right to hold
office had been nullified. Clearly, there would be in such a case an injustice suffered by him.
Nor is he the only victim. There is injustice inflicted likewise on the people of Lianga They
were deprived of the services of the man they had elected to serve as mayor. In that sense,
to paraphrase Justice Cardozo, the protracted continuance of this preventive suspension had
outrun the bounds of reason and resulted in sheer oppression. A denial of due process is
thus quite manifest. It is to avoid such an unconstitutional application that the order of
suspension should be lifted.57

The plain truth is that this Court has been ill at ease with suspensions, for the above reasons, 58 and
so also, because it is out of the ordinary to have a vacancy in local government. The sole objective
of a suspension, as we have held, 59 is simply "to prevent the accused from hampering the normal
cause of the investigation with his influence and authority over possible witnesses" 60 or to keep him
off "the records and other evidence.61

It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring local
official. Under the Local Government Code, it can not exceed sixty days,62 which is to say that it need
not be exactly sixty days long if a shorter period is otherwise sufficient, and which is also to say that
it ought to be lifted if prosecutors have achieved their purpose in a shorter span.

Suspension is not a penalty and is not unlike preventive imprisonment in which the accused is held
to insure his presence at the trial. In both cases, the accused (the respondent) enjoys a presumption
of innocence unless and until found guilty.

Suspension finally is temporary and as the Local Government Code provides, it may be imposed for
no more than sixty days. As we held,63 a longer suspension is unjust and unreasonable, and we
might add, nothing less than tyranny.

As we observed earlier, imposing 600 days of suspension which is not a remote possibility Mayor
Ganzon is to all intents and purposes, to make him spend the rest of his term in inactivity. It is also to
make, to all intents and purposes, his suspension permanent.

It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not been
proven. Worse, any absolution will be for naught because needless to say, the length of his
suspension would have, by the time he is reinstated, wiped out his tenure considerably.

The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to see that
justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor Ganzon successive
suspensions when apparently, the respondent Secretary has had sufficient time to gather the
necessary evidence to build a case against the Mayor without suspending him a day longer. What is
intriguing is that the respondent Secretary has been cracking down, so to speak, on the Mayor
piecemeal apparently, to pin him down ten times the pain, when he, the respondent Secretary, could
have pursued a consolidated effort.
We reiterate that we are not precluding the President, through the Secretary of Interior from
exercising a legal power, yet we are of the opinion that the Secretary of Interior is exercising that
power oppressively, and needless to say, with a grave abuse of discretion.

The Court is aware that only the third suspension is under questions, and that any talk of future
suspensions is in fact premature. The fact remains, however, that Mayor Ganzon has been made to
serve a total of 120 days of suspension and the possibility of sixty days more is arguably around the
corner (which amounts to a violation of the Local Government Code which brings to light a pattern of
suspensions intended to suspend the Mayor the rest of his natural tenure. The Court is simply
foreclosing what appears to us as a concerted effort of the State to perpetuate an arbitrary act.

As we said, we can not tolerate such a state of affairs.

We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension and
lifting, for the purpose, the Temporary Restraining Order earlier issued. Insofar as the seven
remaining charges are concerned, we are urging the Department of Local Government, upon the
finality of this Decision, to undertake steps to expedite the same, subject to Mayor Ganzon's usual
remedies of appeal, judicial or administrative, or certiorari, if warranted, and meanwhile, we are
precluding the Secretary from meting out further suspensions based on those remaining complaints,
notwithstanding findings of prima facie evidence.

In resume the Court is laying down the following rules:

1. Local autonomy, under the Constitution, involves a mere decentralization of administration, not of
power, in which local officials remain accountable to the central government in the manner the law
may provide;

2. The new Constitution does not prescribe federalism;

3. The change in constitutional language (with respect to the supervision clause) was meant but to
deny legislative control over local governments; it did not exempt the latter from legislative
regulations provided regulation is consistent with the fundamental premise of autonomy;

4. Since local governments remain accountable to the national authority, the latter may, by law, and
in the manner set forth therein, impose disciplinary action against local officials;

5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify
"control" (which the President does not have);

6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but may no
longer be suspended for the offenses he was charged originally; provided:

a) that delays in the investigation of those charges "due to his fault, neglect or request, (the
time of the delay) shall not be counted in computing the time of suspension. [Supra, sec.
63(3)]

b) that if during, or after the expiration of, his preventive suspension, the petitioner commits
another or other crimes and abuses for which proper charges are filed against him by the
aggrieved party or parties, his previous suspension shall not be a bar to his being
preventively suspended again, if warranted under subpar. (2), Section 63 of the Local
Government Code.
WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary Restraining
Order issued is LIFTED. The suspensions of the petitioners are AFFIRMED, provided that the
1âwphi1

petitioner, Mayor Rodolfo Ganzon, may not be made to serve future suspensions on account of any
of the remaining administrative charges pending against him for acts committed prior to August 11,
1988. The Secretary of Interior is ORDERED to consolidate all such administrative cases pending
against Mayor Ganzon.

The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED. No costs.

SO ORDERED
 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 Solicitor-
General of March 20, 1939, verbally by the President on the same day. The Secretary of the Interior
suspended the petitioner from office on February 9, 1939, and then and thereafter wired the
Provincial Governor of Rizal with instruction that the petitioner be advised accordingly. On February
13, 1939, the respondent wrote the petitioner a letter, specifying the many charges against him and
notifying him of the designation of Emiliano Anonas as special investigator to investigate the
charges. The special investigator forthwith notified the petitioner that the formal investigation would
be commenced on February 17, 1939, at 9 a. m., but due to several incidents and postponements,
the same had to be set definitely for March 28, 1939. Hence, the petition for preliminary injunction
referred to in the beginning of this opinion.

The petitioner contends in his petition:

(1) That the Secretary of the Interior has no jurisdiction or authority to suspend and much
less to prefer by himself administrative charges against the petitioner and decide also by
himself the merits of the charges as the power to suspend municipal elective officials and to
try and punish them for misconduct in office or dereliction of duty is lodged in some other
agencies of the government;

(2) That the acts of the respondent in suspending the petitioner from office and in preferring
by himself charges against him and in designating a special investigator to hear the charges
specified in Exhibit A are null and void for the following reasons:
 (a) Because the Secretary of the Interior, by suspending the petitioner, has exercised
control over local governments when that power has been taken away from the
President of the Philippines by the Constitution for the to abrogate and the power to
abrogate means the power to power to control has been interpreted to include the
power usurp and the power to usurp necessarily includes the power to destroy;

(b) Because even if the respondent Secretary of the Interior has power of supervision
over local governments, that power, according to the constitution, must be exercised
in accordance with the provisions of law and the provisions of law governing trials of
charges against elective municipal officials are those contained in section 2188 of the
Administrative Code as amended. In other words, the Secretary of the Interior must
exercise his supervision over local governments, if he has that power under existing
law, in accordance with section 2188 of the Administrative Code, as amended, as the
latter provision govern the procedure to be followed in suspending and punishing
elective local officials while section 79 (C) of the Administrative Code is the general
law which must yield to the special law;

(c) Because the respondent Secretary of the Interior is exercising an arbitrary power
by converting himself into a complainant and at the same time judge of the charges
he has preferred against the petitioner;

(d) Because the action of the respondent Secretary of the Interior is not based on
any sworn statement of any private person or citizen of this government when
section 2188 of the Administrative Code requires the complaint against elective
municipal officials to be under oath in order to merit consideration by the authorities.

Petitioner prays this Honorable Court:

(a) To issue a writ of preliminary injunction against the respondent restraining him, his
agents, attorneys and all persons acting by virtue of his authority from further proceeding
against the petitioner until this case is finally determined by this court;

(b) To declare, after the hearing of this petition, that the respondent is without authority or
jurisdiction to suspend the petitioner from the office of mayor of Makati and to order his
immediate reinstatement in office;

(c) To declare that the respondent has no authority to prefer charges against the petitioner
and to investigate those charges for the grant him that power the respondent would be acting
as prosecutor and judge of the case of his own creation.

Upon the other hand, the Solicitor-General contends in his answer:

1. That section 79 (C) in relation with section 86 of the Revised Administrative Code
expressly empowers the respondent as Secretary of the Interior to "order the investigation of
any act or conduct of any person in the service of any bureau or office under his department"
and in connection therewith to "designate an official or person who shall conduct such
investigation"; (Par. 4.)

2. That although section 2188 of the Revised Administrative Code, invoked by the petitioner,
empowers the provincial governor to `receive and investigate complaints 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 well-
known principles and practices that go with the system, should offer the necessary explanation. With
reference to the Executive Department of the government, there is one purpose which is crystal-
clear and is readily visible without the projection of judicial searchlight, and that is, the establishment
of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the
Executive Department, begins with the enunciation of the principles that "The executive power shall
be vested in a President of the Philippines." This means that the President of the Philippines is the
Executive of the Government of the Philippines, and no other. The heads of the executive
departments occupy political positions and hold office in an advisory capacity, and, in the language
of Thomas Jefferson, "should be of the President's bosom confidence" (7 Writings, Ford ed., 498),
and, in the language of Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the
direction of the President." Without minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of that of the President. Stated
otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United
States, "each head of a department is, and must be, the President's alter ego in the matters of that
department where the President is required by law to exercise authority" (Myers vs. United States,
47 Sup. Ct. Rep., 21 at 30; 272 U. S., 52 at 133; 71 Law. ed., 160). Secretaries of departments, of
course, exercise certain powers under the law but the law cannot impair or in any way affect the
constitutional power of control and direction of the President. As a matter of executive policy, they
may be granted departmental autonomy as to certain matters but this is by mere concession of the
executive, in the absence of valid legislation in the particular 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.

Avanceña, 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 self-
evident.

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
Baguio City

EN BANC

G.R. No. 166620 April 20, 2010

ATTY. SYLVIA BANDA, CONSORICIA O. PENSON, RADITO V. PADRIGANO, JEAN R. DE

MESA, LEAH P. DELA CRUZ, ANDY V. MACASAQUIT, SENEN B. CORDOBA, ALBERT
BRILLANTES, GLORIA BISDA, JOVITA V. CONCEPCION, TERESITA G. CARVAJAL,
ROSANNA T. MALIWANAG, RICHARD ODERON, CECILIA ESTERNON, BENEDICTO CABRAL,
MA. VICTORIA E. LAROCO, CESAR ANDRA, FELICISIMO GALACIO, ELSA R. CALMA,
FILOMENA A. GALANG, JEAN PAUL MELEGRITO, CLARO G. SANTIAGO, JR., EDUARDO
FRIAS, REYNALDO O. ANDAL, NEPHTALIE IMPERIO, RUEL BALAGTAS, VICTOR R. ORTIZ,
FRANCISCO P. REYES, JR., ELISEO M. BALAGOT, JR., JOSE C. MONSALVE, JR., ARTURO
ADSUARA, F.C. LADRERO, JR., NELSON PADUA, MARCELA C. SAYAO, ANGELITO
MALAKAS, GLORIA RAMENTO, JULIANA SUPLEO, MANUEL MENDRIQUE, E. TAYLAN,
CARMELA BOBIS, DANILO VARGAS, ROY-LEO C. PABLO, ALLAN VILLANUEVA, VICENTE R.
VELASCO, JR., IMELDA ERENO, FLORIZA M. CATIIS, RANIEL R. BASCO, E. JALIJALI, MARIO
C. CARAAN, DOLORES M. AVIADO, MICHAEL P. LAPLANA, GUILLERMO G. SORIANO, ALICE
E. SOJO, ARTHUR G. NARNE, LETICIA SORIANO, FEDERICO RAMOS, JR., PETERSON
CAAMPUED, RODELIO L. GOMEZ, ANTONIO D. GARCIA, JR., ANTONIO GALO, A. SANCHEZ,
SOL E. TAMAYO, JOSEPHINE A.M. COCJIN, DAMIAN QUINTO, JR., EDLYN MARIANO, M.A.
MALANUM, ALFREDO S. ESTRELLA, and JESUS MEL SAYO, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, The Director General of the
Philippine Information Agency and The National Treasurer, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

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

The NPO was formed on July 25, 1987, during the term of former President Corazon C. Aquino
(President Aquino), by virtue of Executive Order No. 2851 which provided, among others, the
creation of the NPO from the merger of the Government Printing Office and the relevant printing
units of the Philippine Information Agency (PIA). Section 6 of Executive Order No. 285 reads:

SECTION 6. Creation of the National Printing Office. – There is hereby created a National Printing
Office out of the merger of the Government Printing Office and the relevant printing units of the
Philippine Information Agency. The Office shall have exclusive printing jurisdiction over the following:

a. Printing, binding and distribution of all standard and accountable forms of national,
provincial, city and municipal governments, including government corporations;

b. Printing of officials ballots;

 c. Printing of public documents such as the Official Gazette, General Appropriations Act,
Philippine Reports, and development information materials of the Philippine Information
Agency.

The Office may also accept other government printing jobs, including government publications, aside
from those enumerated above, but not in an exclusive basis.

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

The Office shall be attached to the Philippine Information Agency.

On October 25, 2004, President Arroyo issued the herein assailed Executive Order No. 378,
amending Section 6 of Executive Order No. 285 by, inter alia, removing the exclusive jurisdiction of
the NPO over the printing services requirements of government agencies and instrumentalities. The
pertinent portions of Executive Order No. 378, in turn, provide:

SECTION 1. The NPO shall continue to provide printing services to government agencies and
instrumentalities as mandated by law. However, it shall no longer enjoy exclusive jurisdiction over
the printing services requirements of the government over standard and accountable forms. It shall
have to compete with the private sector, except in the printing of election paraphernalia which could
be shared with the Bangko Sentral ng Pilipinas, upon the discretion of the Commission on Elections
consistent with the provisions of the Election Code of 1987.

SECTION 2. Government agencies/instrumentalities may source printing services outside NPO

provided that:

2.1 The printing services to be provided by the private sector is superior in quality and at a
lower cost than what is offered by the NPO; and

2.2 The private printing provider is flexible in terms of meeting the target completion time of
the government agency.

SECTION 3. In the exercise of its functions, the amount to be appropriated for the programs,
projects and activities of the NPO in the General Appropriations Act (GAA) shall be limited to its
income without additional financial support from the government. (Emphases and underscoring
supplied.)

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

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

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

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

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

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

In Mathay v. The Consolidated Bank and Trust Company, 3 the Court held that:

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

Here, the petition failed to state the number of NPO employees who would be affected by the
assailed Executive Order and who were allegedly represented by petitioners. It was the Solicitor
General, as counsel for respondents, who pointed out that there were about 549 employees in the
NPO.4 The 67 petitioners undeniably comprised a small fraction of the NPO employees whom they
claimed to represent. Subsequently, 32 of the original petitioners executed an Affidavit of
Desistance, while one signed a letter denying ever signing the petition, 5 ostensibly reducing the
number of petitioners to 34. We note that counsel for the petitioners challenged the validity of the
desistance or withdrawal of some of the petitioners and insinuated that such desistance was due to
pressure from people "close to the seat of power." 6 Still, even if we were to disregard the affidavit of
desistance filed by some of the petitioners, it is highly doubtful that a sufficient, representative
number of NPO employees have instituted this purported class suit. A perusal of the petition itself
would show that of the 67 petitioners who signed the Verification/Certification of Non-Forum
Shopping, only 20 petitioners were in fact mentioned in the jurat as having duly subscribed the
petition before the notary public. In other words, only 20 petitioners effectively instituted the present
case.
Indeed, in MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, Inc., 7 we observed
that an element of a class suit or representative suit is the adequacy of representation. In
determining the question of fair and adequate representation of members of a class, the court must
consider (a) whether the interest of the named party is coextensive with the interest of the other
members of the class; (b) the proportion of those made a party, as it so bears, to the total
membership of the class; and (c) any other factor bearing on the ability of the named party to speak
for the rest of the class.

Previously, we held in Ibañes v. Roman Catholic Church8 that where the interests of the plaintiffs and
the other members of the class they seek to represent are diametrically opposed, the class suit will
not prosper.

It is worth mentioning that a Manifestation of Desistance, 9 to which the previously mentioned Affidavit
of Desistance10 was attached, was filed by the President of the National Printing Office Workers
Association (NAPOWA). The said manifestation expressed NAPOWA’s opposition to the filing of the
instant petition in any court. Even if we take into account the contention of petitioners’ counsel that
the NAPOWA President had no legal standing to file such manifestation, the said pleading is a clear
indication that there is a divergence of opinions and views among the members of the class sought
to be represented, and not all are in favor of filing the present suit. There is here an apparent conflict
between petitioners’ interests and those of the persons whom they claim to represent. Since it
cannot be said that petitioners sufficiently represent the interests of the entire class, the instant case
cannot be properly treated as a class suit.

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

First, it is contended that President Arroyo cannot amend or repeal Executive Order No. 285 by the
mere issuance of another executive order (Executive Order No. 378). Petitioners maintain that
former President Aquino’s Executive Order No. 285 is a legislative enactment, as the same was
issued while President Aquino still had legislative powers under the Freedom Constitution; 11 thus,
only Congress through legislation can validly amend Executive Order No. 285.

Second, petitioners maintain that the issuance of Executive Order No. 378 would lead to the
eventual abolition of the NPO and would violate the security of tenure of NPO employees.

Anent the first ground raised in the petition, we find the same patently without merit.

It is a well-settled principle in jurisprudence that the President has the power to reorganize the
offices and agencies in the executive department in line with the President’s constitutionally granted
power of control over executive offices and by virtue of previous delegation of the legislative power
to reorganize executive offices under existing statutes.

In Buklod ng Kawaning EIIB v. Zamora, 12 the Court pointed out that Executive Order No. 292 or the
Administrative Code of 1987 gives the President continuing authority to reorganize and redefine the
functions of the Office of the President. Section 31, Chapter 10, Title III, Book III of the said Code, is
explicit:

Sec. 31. Continuing Authority of the President to Reorganize his Office. – The President, subject to
the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall
have continuing authority to reorganize the administrative structure of the Office of the President. For
this purpose, he may take any of the following actions:
 (1) Restructure the internal organization of the Office of the President Proper, including the
immediate Offices, the President Special Assistants/Advisers System and the Common Staff
Support System, by abolishing, consolidating or merging units thereof or transferring
functions from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or
Agency as well as transfer functions to the Office of the President from other Departments
and Agencies; and

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

Interpreting the foregoing provision, we held in Buklod ng Kawaning EIIB, thus:

But of course, the list of legal basis authorizing the President to reorganize any department or
agency in the executive branch does not have to end here. We must not lose sight of the very
source of the power – that which constitutes an express grant of power. Under Section 31, Book III
of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President,
subject to the policy in the Executive Office and in order to achieve simplicity, economy and
efficiency, shall have the continuing authority to reorganize the administrative structure of the Office
of the President." For this purpose, he may transfer the functions of other Departments or Agencies
to the Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions." It takes place when there is an alteration of the
existing structure of government offices or units therein, including the lines of control, authority and
responsibility between them. The EIIB is a bureau attached to the Department of Finance. It falls
under the Office of the President. Hence, it is subject to the President’s continuing authority to
reorganize.13 (Emphasis ours.)

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

Pertinent to the case at bar, Section 31 of the Administrative Code of 1987 quoted above authorizes
the President (a) to restructure the internal organization of the Office of the President Proper,
including the immediate Offices, the President Special Assistants/Advisers System and the Common
Staff Support System, by abolishing, consolidating or merging units thereof or transferring functions
from one unit to another, and (b) to transfer functions or offices from the Office of the President to
any other Department or Agency in the Executive Branch, and vice versa.

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

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

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

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

Sec. 20. Residual Powers. – Unless Congress provides otherwise, the President shall exercise such
other powers and functions vested in the President which are provided for under the laws and which
are not specifically enumerated above, or which are not delegated by the President in accordance
with law. (Emphasis ours.)

Pursuant to Section 20, the power of the President to reorganize the Executive Branch under
Section 31 includes such powers and functions that may be provided for under other laws. To be
sure, an inclusive and broad interpretation of the President’s power to reorganize executive offices
has been consistently supported by specific provisions in general appropriations laws.

In the oft-cited Larin v. Executive Secretary,16 the Court likewise adverted to certain provisions of
Republic Act No. 7645, the general appropriations law for 1993, as among the statutory bases for
the President’s power to reorganize executive agencies, to wit:

Section 48 of R.A. 7645 provides that:

"Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the Executive Branch. — The
heads of departments, bureaus and offices and agencies are hereby directed to identify their
respective activities which are no longer essential in the delivery of public services and which may
be scaled down, phased out or abolished, subject to civil [service] rules and regulations. x x x. Actual
scaling down, phasing out or abolition of the activities shall be effected pursuant to Circulars or
Orders issued for the purpose by the Office of the President."

Said provision clearly mentions the acts of "scaling down, phasing out and abolition" of offices only
and does not cover the creation of offices or transfer of functions. Nevertheless, the act of creating
and decentralizing is included in the subsequent provision of Section 62, which provides that:

"Sec. 62. Unauthorized organizational changes. — Unless otherwise created by law or directed by
the President of the Philippines, no organizational unit or changes in key positions in any department
or agency shall be authorized in their respective organization structures and be funded from
appropriations by this Act."

The foregoing provision evidently shows that the President is authorized to effect organizational
changes including the creation of offices in the department or agency concerned.

The contention of petitioner that the two provisions are riders deserves scant consideration. Well
settled is the rule that every law has in its favor the presumption of constitutionality. Unless and until
a specific provision of the law is declared invalid and unconstitutional, the same is valid and binding
for all intents and purposes.17 (Emphases ours)
Buklod ng Kawaning EIIB v. Zamora,18 where the Court upheld as valid then President Joseph
Estrada’s Executive Order No. 191 "deactivating" the Economic Intelligence and Investigation
Bureau (EIIB) of the Department of Finance, hewed closely to the reasoning in Larin. The Court,
among others, also traced from the General Appropriations Act19 the President’s authority to effect
organizational changes in the department or agency under the executive structure, thus:

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

Notably, in the present case, the 2003 General Appropriations Act, which was reenacted in 2004
(the year of the issuance of Executive Order No. 378), likewise gave the President the authority to
effect a wide variety of organizational changes in any department or agency in the Executive Branch.
Sections 77 and 78 of said Act provides:

Section 77. Organized Changes. – Unless otherwise provided by law or directed by the President of
the Philippines, no changes in key positions or organizational units in any department or agency
shall be authorized in their respective organizational structures and funded from appropriations
provided by this Act.

Section 78. Institutional Strengthening and Productivity Improvement in Agency Organization and
Operations and Implementation of Organization/Reorganization Mandated by Law. The Government
shall adopt institutional strengthening and productivity improvement measures to improve service
delivery and enhance productivity in the government, as directed by the President of the Philippines.
The heads of departments, bureaus, offices, agencies, and other entities of the Executive Branch
shall accordingly conduct a comprehensive review of their respective mandates, missions,
objectives, functions, programs, projects, activities and systems and procedures; identify areas
where improvements are necessary; and implement corresponding structural, functional and
operational adjustments that will result in streamlined organization and operations and improved
performance and productivity: PROVIDED, That actual streamlining and productivity improvements
in agency organization and operations, as authorized by the President of the Philippines for the
purpose, including the utilization of savings generated from such activities, shall be in accordance
with the rules and regulations to be issued by the DBM, upon consultation with the Presidential
Committee on Effective Governance: PROVIDED, FURTHER, That in the implementation of
organizations/reorganizations, or specific changes in agency structure, functions and operations as a
result of institutional strengthening or as mandated by law, the appropriation, including the functions,
projects, purposes and activities of agencies concerned may be realigned as may be necessary:
PROVIDED, FINALLY, That any unexpended balances or savings in appropriations may be made
available for payment of retirement gratuities and separation benefits to affected personnel, as
authorized under existing laws. (Emphases and underscoring ours.)

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

In the 2003 case of Bagaoisan v. National Tobacco Administration, 21 we upheld the "streamlining" of
the National Tobacco Administration through a reduction of its personnel and deemed the same as
included in the power of the President to reorganize executive offices granted under the laws,
notwithstanding that such streamlining neither involved an abolition nor a transfer of functions of an
office. To quote the relevant portion of that decision:

In the recent case of Rosa Ligaya C. Domingo, et al. vs. Hon. Ronaldo D. Zamora, in his capacity as
the Executive Secretary, et al., this Court has had occasion to also delve on the President’s power to
reorganize the Office of the President under Section 31(2) and (3) of Executive Order No. 292 and
the power to reorganize the Office of the President Proper. x x x

xxxx

The first sentence of the law is an express grant to the President of a continuing authority to
reorganize the administrative structure of the Office of the President. The succeeding numbered
paragraphs are not in the nature of provisos that unduly limit the aim and scope of the grant to the
President of the power to reorganize but are to be viewed in consonance therewith. Section 31(1) of
Executive Order No. 292 specifically refers to the President’s power to restructure the internal
organization of the Office of the President Proper, by abolishing, consolidating or merging units
hereof or transferring functions from one unit to another, while Section 31(2) and (3) concern
executive offices outside the Office of the President Proper allowing the President to transfer any
function under the Office of the President to any other Department or Agency and vice-versa, and
the transfer of any agency under the Office of the President to any other department or agency
and vice-versa.

In the present instance, involving neither an abolition nor transfer of offices, the assailed action is a
mere reorganization under the general provisions of the law consisting mainly of streamlining the
NTA in the interest of simplicity, economy and efficiency. It is an act well within the authority of the
President motivated and carried out, according to the findings of the appellate court, in good faith, a
factual assessment that this Court could only but accept.22 (Emphases and underscoring supplied.)

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

This Court has already ruled in a number of cases that the President may, by executive or
administrative order, direct the reorganization of government entities under the Executive
Department. This is also sanctioned under the Constitution, as well as other statutes.

Section 17, Article VII of the 1987 Constitution, clearly states: "[T]he president shall have control of
all executive departments, bureaus and offices." Section 31, Book III, Chapter 10 of Executive Order
No. 292, also known as the Administrative Code of 1987 reads:
SEC. 31. Continuing Authority of the President to Reorganize his Office - The President, subject to
the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall
have continuing authority to reorganize the administrative structure of the Office of the President. For
this purpose, he may take any of the following actions:

xxxx

In Domingo v. Zamora [445 Phil. 7 (2003)], this Court explained the rationale behind the President’s
continuing authority under the Administrative Code to reorganize the administrative structure of the
Office of the President. The law grants the President the power to reorganize the Office of the
President in recognition of the recurring need of every President to reorganize his or her office "to
achieve simplicity, economy and efficiency." To remain effective and efficient, it must be capable of
being shaped and reshaped by the President in the manner the Chief Executive deems fit to carry
out presidential directives and policies.

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

Sec. 23. The Agencies under the Office of the President.—The agencies under the Office of the
President refer to those offices placed under the chairmanship of the President, those under the
supervision and control of the President, those under the administrative supervision of the Office
of the President, those attached to it for policy and program coordination, and those that are not
placed by law or order creating them under any specific department.

xxxx

The power of the President to reorganize the executive department is likewise recognized in general
appropriations laws. x x x.

xxxx

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

Subsequently, we ruled in Anak Mindanao Party-List Group v. Executive Secretary25 that:

The Constitution’s express grant of the power of control in the President justifies an executive action
to carry out reorganization measures under a broad authority of law.

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

In establishing an executive department, bureau or office, the legislature necessarily ordains an

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

The issuance of Executive Order No. 378 by President Arroyo is an exercise of a delegated
legislative power granted by the aforementioned Section 31, Chapter 10, Title III, Book III of the
Administrative Code of 1987, which provides for the continuing authority of the President to
reorganize the Office of the President, "in order to achieve simplicity, economy and efficiency." This
is a matter already well-entrenched in jurisprudence. The reorganization of such an office through
executive or administrative order is also recognized in the Administrative Code of 1987. Sections 2
and 3, Chapter 2, Title I, Book III of the said Code provide:

Sec. 2. Executive Orders. - Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be promulgated
in executive orders.

Sec. 3. Administrative Orders. - Acts of the President which relate to particular aspects of
governmental operations in pursuance of his duties as administrative head shall be promulgated in
administrative orders. (Emphases supplied.)

To reiterate, we find nothing objectionable in the provision in Executive Order No. 378 limiting the
appropriation of the NPO to its own income. Beginning with Larin and in subsequent cases, the
Court has noted certain provisions in the general appropriations laws as likewise reflecting the
power of the President to reorganize executive offices or agencies even to the extent of modifying
and realigning appropriations for that purpose.

Petitioners’ contention that the issuance of Executive Order No. 378 is an invalid exercise of
legislative power on the part of the President has no legal leg to stand on.

In all, Executive Order No. 378, which purports to institute necessary reforms in government in order
to improve and upgrade efficiency in the delivery of public services by redefining the functions of the
NPO and limiting its funding to its own income and to transform it into a self-reliant agency able to
compete with the private sector, is well within the prerogative of President Arroyo under her
continuing delegated legislative power to reorganize her own office. As pointed out in the separate
concurring opinion of our learned colleague, Associate Justice Antonio T. Carpio, the objective
behind Executive Order No. 378 is wholly consistent with the state policy contained in Republic Act
No. 9184 or the Government Procurement Reform Act to encourage competitiveness by extending
equal opportunity to private contracting parties who are eligible and qualified. 27
1avvphi1

To be very clear, this delegated legislative power to reorganize pertains only to the Office of the
President and the departments, offices and agencies of the executive branch and does not include
the Judiciary, the Legislature or the constitutionally-created or mandated bodies. Moreover, it must
be stressed that the exercise by the President of the power to reorganize the executive department
must be in accordance with the Constitution, relevant laws and prevailing jurisprudence.

In this regard, we are mindful of the previous pronouncement of this Court in Dario v. Mison28 that:

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

Stated alternatively, the presidential power to reorganize agencies and offices in the executive
branch of government is subject to the condition that such reorganization is carried out in good faith.

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

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

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

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

WHEREFORE, the petition is hereby DISMISSED and the prayer for a Temporary Restraining Order
and/or a Writ of Preliminary Injunction is hereby DENIED. No costs.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice
 CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

On official leave
MARIANO C. DEL CASTILLO
ROBERTO A. ABAD*
Associate Justice
Associate Justice

MARTIN S. VILLARAMA, JR. JOSE P. PEREZ

Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice

CERTIFICATION

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

REYNATO S. PUNO
Chief Justice

Footnotes

* On official leave.

1ABOLISHING THE GENERAL SERVICES ADMINISTRATION AND TRANSFERRING ITS

FUNCTIONS TO APPROPRIATE GOVERNMENT AGENCIES.

2 328 Phil. 1187, 1204 (1996).

3 157 Phil. 551, 563-564 (1974).

4 Respondents’ Comment on the Manifestation of Desistance, rollo, p. 86.

5 Id. at 30-32.

6 Id. at 44.
7 444 Phil. 230, 257 (2003); citing 59 Am Jur 2d, 456 (1977).

8 12 Phil. 227, 241 (1908).

9 Rollo, p. 29.

10 Id. at 30-32.

DECLARING NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE

11

PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL

CONSTITUTION, AND PROVIDING FOR AN ORDERLY TRANSITION TO A
GOVERNMENT UNDER A NEW CONSTITUTION.

12 413 Phil. 281 (2001).

13 Id. at 294-295.

14 Section 23, Chapter 8, Title II, Book III of the Administrative Code of 1987 provides:

Section 23. The Agencies under the Office of the President. - The agencies under
the Office of the President refer to those offices placed under the chairmanship of the
President, those under the supervision and control of the President, those under the
administrative supervision of the Office of the President, those attached to it for
policy and program coordination, and those that are not placed by law or order
creating them under any specific department.

15Subsequently, in order to harmonize Executive Order No. 378 with other executive
issuances and laws relating to the printing of government forms, President Arroyo, through
the Executive Secretary, issued Memorandum Circular No. 180 (dated August 13, 2009) to
clarify the printing responsibility of the NPO. The said issuance provided that the NPO had
exclusive printing jurisdiction over standard and accountable forms with money value and
specialized accountable forms, which may be contracted out to the NPO’s accredited private
security printers under the guidelines therein provided. It also affirmed the NPO’s exclusive
jurisdiction over the printing of election forms and public documents, such as the Official
Gazette, General Appropriations Act, Philippine Reports and development information
materials of the Philippine Information Agency. It is only with respect to other standard
accountable forms and other government printing jobs that private providers may be
engaged in accordance with prescribed guidelines and upon written waiver issued by the
NPO.

16 G.R. No. 112745, October 16, 1997, 280 SCRA 713.

17 Id. at 729-730.

18 Supra note 12.

19 Republic Act 8760, signed into law on February 16, 2000.

20 Buklod ng Kawaning EIIB v. Zamora, supra note 12 at 293-294.

21 455 Phil. 761 (2003).

 22 Id. at 775-772.

23 G.R. No. 167324, July 17, 2007, 527 SCRA 746.

24 Id. at 766-770.

25 G.R. No. 166052, August 29, 2007, 531 SCRA 583.

26 Id. at 596.

27It is, however, highly debatable whether Executive Order No. 378 is a mere
implementation of the Government Procurement Reform Act, as Justice Carpio proposes,
since there is nothing in the said statute that authorizes modification of the functions or
appropriations of an executive office or agency.

G.R. Nos. 81954, 81967, 82023, 83737, 85310, 85335 and 86241, August 8, 1989, 176
28

SCRA 84, 127.

29 Supra note 12.

30 Id.

31Eureka Personnel & Management Services, Inc. v. Valencia, G.R. No. 159358, July 15,
2009, citing Republic v. Orbecido III, G.R. No. 154380, October 5, 2005, 472 SCRA
114; Noceda v. Court of Appeals, 372 Phil. 383 (1999); Luxuria Homes, Inc. v. Court of
Appeals, 361 Phil. 989 (1999).

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

CARPIO, J.:

I concur in the result that Executive Order No. 378 (EO 378) is a valid Presidential issuance, but not
because it implements Section 31, Chapter 10, Book II of the Administrative Code of 1987 1 (Section
31) or that it is sanctioned by case law anchored on Presidential Decree No. 1416 (PD 1416), but
because EO 378 merely implements Republic Act No. 9184 (RA 9184) 2 regulating government
procurement activities.

EO 378 Exceeds the Parameters of Section 31

Section 31, an executive legislation,3 grants to the executive a narrow power to reorganize ringed
with limitations on two fronts: (1) the branch of the government covered and (2) the scope of
authority delegated:
Continuing Authority of the President to Reorganize his Office. ─ The President, subject to the policy
in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:

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

(2) Transfer any function under the Office of the President to any other Department or
Agency as well as transfer functions to the Office of the President from other Departments
and Agencies; and

(3) Transfer any agency under the Office of the President to any other department or agency
as well as transfer agencies to the Office of the President from other departments or
agencies. (Emphasis supplied)

Section 31 limits Executive discretion to reorganize the Office of the President and the enumerated
ancillary offices along the following functional and structural lines: (1) restructuring the internal
organization of the Office of the President Proper by abolishing, consolidating or merging units
thereof or transferring functions from one unit to another; (2) transferring any function under the
Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency
under the Office of the President to any other Department/Agency or vice versa. This listing is closed
and admits of no other category of reorganization.

Tested against these three narrow categories of reorganization, EO 378 fails to pass muster. EO
378 effects two changes to the National Printing Office (NPO): first, it reduces the NPO’s exclusive
printing function to cover election paraphernalia only, allowing private printing establishments to bid
for the right to print government standard and accountable forms and second, it caps the NPO’s
annual appropriation to its income. Although EO 378’s narrowing of the NPO’s functions arguably
falls under Section 31(1)’s ambit authorizing abolition of units, this power is limited to the Office of
the President Proper, defined under the 1987 Administrative Code as consisting of "the Private
Office, the Executive Office, the Common Staff Support System, and the President Special
Assistants/Advisers System x x x."4 The NPO is not part of the Office of the President Proper, being
an agency attached to the Office of the President, a bigger entity consisting "of the Office of the
President Proper and the agencies under it." 5 Thus, Section 31(1) is no basis to declare that the
President has the power to "abolish agencies under the Office of the President." 6 Section 31(1) limits
this power only to the Office of the President Proper.

Further, insofar as the "Office of the President" is concerned, the President’s reorganization powers
are limited to transferring any function or any agency from that office to any department or agency
and vice versa. No amount of etymological stretching can make reduction of function and capping of
budget fit under the narrow concept of "transferring any function or any agency."

Case Law Cited No Authority to Validate EO 378

The cases the Decision cites furnish no bases to validate EO 378. The leading case in this area,
Larin v. Executive Secretary7 (reiterated in Buklod ng Kawaning EIIB v. Hon. Sec. Zamora8 and
Tondo Medical Center Employees Association v. Court of Appeals 9) relied on Section 20, Chapter 7,
Book II of the Administrative Code of 1987 in relation to PD 1416:
Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:

"Sec. 20. Residual Powers. — Unless Congress provides otherwise, the President shall exercise
such other powers and functions vested in the President which are provided for under the laws and
which are not specifically enumerated above or which are not delegated by the President in
accordance with law." (italics ours)

This provision speaks of such other powers vested in the President under the law. What law then
which gives him the power to reorganize? It is Presidential Decree No. 1772 which amended
Presidential Decree No. 1416. These decrees expressly grant the President of the Philippines the
continuing authority to reorganize the national government, which includes the power to group,
consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify
functions, services and activities and to standardize salaries and materials. 10(Emphasis supplied)

Larin and its progeny cannot validate EO 378 because its statutory basis, PD 1416, is an undue
delegation of legislative power.

It is an unquestioned attribute of the broad and undefined legislative power of Congress to fashion
Philippine bureaucracy by creating (and thus, abolishing) public offices save for offices created by
the Constitution.11 This power, including its ancillary to reorganize, 12 is exercised by the other
branches only as allowed by Congress under valid statutory delegation. Even then, the delegated
power only partakes of the original legislative power as the other branches can only implement the
legislature’s will.13 Thus, despite their equally broad and undefined powers, neither the executive nor
the judiciary inherently possesses the power to reorganize its bureaucracy.14

A simple scanning of the list of powers PD 1416 vests on the Executive shows that far from being a
legislative delegation to implement congressional will, PD 1416 surrenders to the Executive the core
legislative power to re-mold Philippine bureaucracy, with the ancillary privilege to control funding,
thus:

1. The President of the Philippines shall have continuing authority to reorganize the
administrative structure of the National Government.

2. For this purpose, the President may, at his discretion, take the following actions:

(a) Group, coordinate, consolidate or integrate departments, bureaus, offices,

agencies, instrumentalities and functions of the government;

(b) Abolish departments, offices, agencies or functions which may not be necessary,
or create those which are necessary, for the efficient conduct of government
functions services and activities;

(c) Transfer functions, appropriations, equipment, properties, records and personnel

from one department, bureau, office, agency or instrumentality to another;

(d) Create, classify, combine, split, and abolish positions; and

(e) Standardize salaries, materials and equipment. (Emphasis supplied)

Presidential Decree No. 1772 (PD 1772), amending PD 1416, enlarged the scope of these powers
by extending the President’s power to reorganize "to x x x all agencies, entities, instrumentalities,
and units of the National Government, including all government-owned or controlled corporations, as
well as the entire range of the powers, functions, authorities, administrative relationships, and related
aspects pertaining to these agencies, entities, instrumentalities, and units." 15 Further, PD 1772
clarified that the President’s power to "create, abolish, group, consolidate, x x x or integrate" offices
relates to "entities, agencies, instrumentalities, and units of the National Government." 16

The term "national government" has an established meaning in statutory and case law. Under the
statute governing Philippine bureaucracy, the Administrative Code of 1987, "national government"
refers to "the entire machinery of the central government, as distinguished from the different forms of
local government."17 Jurisprudence has interpreted this provision of the Administrative Code to
encompass "the three great departments: the executive, the legislative, and the judicial." 18 By
delegating to the Executive the "continuing authority to reorganize the administrative structure of the
National Government" including the power to "create, abolish, group, consolidate, x x x or integrate"
the "entities, agencies, instrumentalities, and units of the National Government," PD 1416, as
amended, places under the Executive branch the vast – and undeniably legislative – power to
constitute the entire Philippine Government in the guise of "reorganization."

Capping the unprecedented siphoning of legislative power to the Executive, PD 1416, as amended,
authorizes the Executive to "transfer appropriations" and "standardize salaries" in the national
government. The authorization to "transfer appropriations" is a complete repugnancy to the
constitutional proscription that "No law shall be passed authorizing any transfer of appropriations. x x
x."19 On the other hand, the Constitution mandates that "The Congress shall provide for the
standardization of compensation of government officials and employees, x x x." 20Indeed, Congress,
with the Executive’s acquiescence, has repeatedly exercised this exclusive power to standardize
public sector employees’ compensation by enacting a law to that effect 21 and exempting classes of
employees from its coverage.22

Thus, much like the invalidated Section 68 of the previous Revised Administrative Code delegating
to the President the legislative power to create municipalities,23 PD 1416, as amended, delegates to
the President that undefined legislative power to constitute the Philippine bureaucracy which the
sovereign people of this polity delegated to Congress only. This subsequent delegation of the power
to legislate offends the fundamental precept in our scheme of government that delegated power
cannot again be delegated.24

The radical merger of legislative and executive powers PD 1416 sanctions makes sense in a
parliamentary system of merged executive and legislative branches. Indeed, PD 1416, issued in
1979, three years after Amendment No. 6 vested legislative power to then President Marcos, was
precisely meant to operate within such system, as declared in PD 1416’s last "Whereas" clause:
"WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in
the organization of the national government[.]" When the Filipino people ratified the 1987
Constitution on 2 February 1987, restoring the operation of the original tri-branch system of
government, PD 1416’s paradigm of merged executive and legislative powers ceased to have
relevance. Although then President Aquino, by her revolutionary ascension to the Presidency, held
and exercised these two powers under the Provisional Constitution, 25 her legislative powers ceased
when the post-EDSA Congress convened on 27 July 1987 following the 1987 Constitution’s
mandate that "The incumbent President shall continue to exercise legislative powers until the first
Congress is convened."26 Thus, even though the demands of modernity27 and the imperatives of
checks and balances28 may have blurred the demarcation lines among the three branches, we
remain a government of separated powers, rooted in the conviction that division – not unity – of
powers prevents tyranny.29 PD 1416, as amended, with its blending of legislative and executive
powers, is a vestige of an autrocratic era, totally anachronistic to our present-day constitutional
democracy.
Making sweeping statements that the President’s power to reorganize "pertains only to the Office of
the President and departments, offices, and agencies of the executive branch and does not include
the Judiciary, the Legislature or constitutionally created or mandated bodies" and that "the exercise
by the President of the power to reorganize x x x must be in accordance with the Constitution,
relevant laws and jurisprudence"30 will not erase PD 1416 and PD 1772 from our statute books. If
this Court found it intolerable under our system of government for the President to demand
"obedience to all x x x decrees x x x promulgated by me personally or upon my direction," 31 the same
hostility should be directed against PD 1416’s authorization for the President to "reorganize x x x the
National Government," "transfer x x x appropriations" and "standardize salaries." These issuances
all vest on the President unadulterated legislative power.

Hence, PD 1416, being repugnant to the 1987 Constitution in several aspects, can no longer be
given effect. At the very least, the exercise of legislative powers by the President under PD 1416
ceased upon the convening of the First Congress, as expressly provided in Section 6, Article XVIII of
the 1987 Constitution.

Similarly, Anak Mindanao Party-List Group v. The Executive Secretary32 (finding valid executive
issuances transferring to a department 33 two offices under the Office of the President) is not in point
because that case involved a reorganization falling within the ambit of Section 31(3) transferring
offices from the Office of the President to another department.

Nor is Canonizado v. Aguirre34 authority for the proposition that the power of the President to
reorganize under Section 31 involves the "alteration of the existing structure of government offices or
units therein, including the lines of control, authority and responsibility between them" or the
"reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions."35 Canonizado reviewed a legislative reorganization (Republic Act No. 8851
reorganizing the Philippine National Police) thus Section 31 never figured in its analysis.
Accordingly, the vast reach of Canonizado’s definition of the power to reorganize36 relates to
Congress, which is, after all, the original repository of such power, as incident to its broad and all-
encompassing power to legislate.

Doctrine of Presidential Control

Over the Executive Department No Basis
to Validate EO 378

The doctrine of presidential control over the executive department likewise furnishes no basis to
uphold the validity of EO 378. As distinguished from supervision, the doctrine of control finds
application in altering acts of the President’s subordinates. It does not sanction structural or
functional changes even within the executive department. 37

EO 378 Valid for Implementing RA 9184

RA 9184 mandates the conduct of competitive bidding in all the procurement activities of the
government including the acquisition of "items, supplies, materials, and general support services x x
x which may be needed in the transaction of the public businesses or in the pursuit of any
government x x x activity"38 save for limited transactions.39 By opening government’s procurement of
standard and accountable forms to competitive bidding (except for documents crucial to the conduct
of clean elections which has to be printed solely by government), EO 378 merely implements RA
9184’s principle of promoting "competitiveness by extending equal opportunity to enable private
contracting parties who are eligible and qualified to participate in public bidding."40 Indeed, EO 378 is
not so much a "reorganization" move involving realignment of offices and personnel movement as an
issuance to "ensure that the government benefits from the best services available from the market at
the best price."41 EO 378’s capping of NPO’s budget to its income is a logical by-product of opening
NPO’s operations to the private sector — with the entry of market forces, there will expectedly be a
decrease in its workload, lowering its funding needs.

Accordingly, I vote to DISMISS the petition.

ANTONIO T. CARPIO
Associate Justice
 EN BANC

G.R. No. 139554 July 21, 2006

ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and
FREDDIE GARCIA, petitioners,
vs.
BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE
POTENCIANO, and DOREEN FERNANDEZ, respondents.

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

G.R. No. 139565 July 21, 2006

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

POTENCIANO, and DOREEN FERNANDEZ, petitioners,
vs.
ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and
FREDDIE GARCIA, respondents.

DECISION

CARPIO, J.:

Presidential Decree No. 15 (PD 15) created the Cultural Center of the Philippines (CCP) for the
primary purpose of propagating arts and culture in the Philippines. 1 The CCP is to awaken the
consciousness of the Filipino people to their artistic and cultural heritage and encourage them to
preserve, promote, enhance, and develop such heritage. 2

PD 15 created a Board of Trustees ("Board") to govern the CCP. PD 15 mandates the Board to draw
up programs and projects that (1) cultivate and enhance public interest in, and appreciation of,
Philippine art; (2) discover and develop talents connected with Philippine cultural pursuits; (3) create
opportunities for individual and national self-expression in cultural affairs; and (4) encourage the
organization of cultural groups and the staging of cultural exhibitions. 3 The Board administers and
holds in trust real and personal properties of the CCP for the benefit of the Filipino people. 4 The
Board invests income derived from its projects and operations in a Cultural Development Fund set
up to attain the CCP's objectives.5

The consolidated petitions in the case at bar stem from a quo warranto proceeding involving two
sets of CCP Boards. The controversy revolves on who between the contending groups, both
claiming as the rightful trustees of the CCP Board, has the legal right to hold office. The resolution of
the issue boils down to the constitutionality of the provision of PD 15 on the manner of filling
vacancies in the Board.

The Case

Before us are two consolidated Petitions for Review on Certiorari under Rule 45 of the 1997 Rules of
Civil Procedure. In G.R. No. 139554, petitioners Armita B. Rufino ("Rufino"), Zenaida R. Tantoco
("Tantoco"),6 Lorenzo Calma ("Calma"), Rafael Simpao, Jr. ("Simpao"), and Freddie Garcia
("Garcia"), represented by the Solicitor General and collectively referred to as the Rufino group, seek
to set aside the Decision7 dated 14 May 1999 of the Court of Appeals in CA-G.R. SP No. 50272 as
well as the Resolution dated 3 August 1999 denying the motion for reconsideration. The dispositive
portion of the appellate court's decision reads:

WHEREFORE, judgment is hereby rendered

1) Declaring petitioners [the Endriga group] to have a clear right to their respective offices to
which they were elected by the CCP Board up to the expiration of their 4-year term,

2) Ousting respondents [the Rufino group], except respondent Zenaida R. Tantoco, from
their respective offices and excluding them therefrom, and

3) Dismissing the case against respondent Zenaida R. Tantoco.

SO ORDERED.8

In G.R. No. 139565, petitioners Baltazar N. Endriga ("Endriga"), Ma. Paz D. Lagdameo
("Lagdameo"), Patricia C. Sison ("Sison"), Irma Ponce-Enrile Potenciano ("Potenciano"), and Doreen
Fernandez ("Fernandez"), collectively referred to as the Endriga group, assail the Resolution dated 3
August 1999 issued by the Court of Appeals in the same case insofar as it denied their Motion for
Immediate Execution of the Decision dated 14 May 1999.

The Antecedents

On 25 June 1966, then President Ferdinand E. Marcos issued Executive Order No. 30 (EO 30)
creating the Cultural Center of the Philippines as a trust governed by a Board of Trustees of seven
members to preserve and promote Philippine culture. The original founding trustees, who were all
appointed by President Marcos, were Imelda Romualdez-Marcos, Juan Ponce-Enrile, Andres
Soriano, Jr., Antonio Madrigal, Father Horacio Dela Costa, S.J., I.P. Soliongco, and Ernesto Rufino.

On 5 October 1972, or soon after the declaration of Martial Law, President Marcos issued PD
15,9 the CCP's charter, which converted the CCP under EO 30 into a non-municipal public
corporation free from the "pressure or influence of politics."10 PD 15 increased the members of
CCP's Board from seven to nine trustees. Later, Executive Order No. 1058, issued on 10 October
1985, increased further the trustees to 11.

After the People Power Revolution in 1986, then President Corazon C. Aquino asked for the
courtesy resignations of the then incumbent CCP trustees and appointed new trustees to the Board.
Eventually, during the term of President Fidel V. Ramos, the CCP Board included Endriga,
Lagdameo, Sison, Potenciano, Fernandez, Lenora A. Cabili ("Cabili"), and Manuel T. Mañosa
("Mañosa").

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. Mañosa

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 Mañosa'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:

x x x in holding that it was "not actuated" to pass upon the constitutionality of Section 6(b) of
PD 15 inasmuch as the issue was raised for the first time in [Rufino et al.'s] motion for
reconsideration;
 II

x x x in not holding that Section 6(b) of PD 15 is unconstitutional considering that:

A. x x x [it] is an invalid delegation of the President's appointing power under the

Constitution;

B. x x x [it] effectively deprives the President of his constitutional power of control and
supervision over the CCP;

III

x x x in declaring the provisions of PD 15 as clear and complete and in failing to apply the
executive/administrative construction x x x which has been consistently recognized and
accepted since 1972;

IV

x x x in finding that [Endriga et al.] have a clear legal right to be the incumbent trustees and
officers of the CCP considering that:

A. Endriga et al. are estopped from instituting the quo warranto action since they recognized
and benefited from the administrative construction regarding the filling of vacancies in the
CCP Board of Trustees x x x;

B. x x x [Endriga et al.'s] terms did not legally commence as [they] were not validly elected
under PD 15;

C. assuming that [Endriga et al.] were validly elected, they lost their right to retain their
offices because their terms as trustees expired on 31 December 1998;

D. [Endriga et al.] assumed positions in conflict x x x with their offices in the CCP and were
thus not entitled to retain the same;

x x x in not dismissing the quo warranto petition for being moot x x x;

VI

x x x in holding that [Rufino et al.'s] prayer [that the] disputed offices [be declared] entirely as
vacant is bereft of basis and amounts to "an admission of their lack of right to the office they
claim."13

In G.R. No. 139565, the Endriga group raises the following issue:

whether a writ of quo warranto involving a public office should be declared a self-executing
judgment and deemed immediately executory under Rule 39, Section 4 of the Rules of
Court.14
 The Court's Ruling

The petition in G.R. No. 139554 has merit.

The battle for CCP's leadership between the Rufino and Endriga groups dealt a blow to the country's
artistic and cultural activities. The highly publicized leadership row over the CCP created discord
among management, artists, scholars, employees, and even the public because of the public
interest at stake.

Subsequently, the assumption to office of a new President in 2001 seemingly restored normalcy to
the CCP leadership. After then Vice-President Gloria Macapagal-Arroyo assumed the Presidency on
20 January 2001, the Rufino group tendered their respective resignations on 24-29 January 2001 as
trustees of the CCP Board. On 12 July 2001, President Macapagal-Arroyo appointed 11 trustees to
the CCP Board with the corresponding positions set opposite their names:

1. Baltazar N. Endriga - Chairman

2. Nestor O. Jardin - President

3. Ma. Paz D. Lagdameo - Member

4. Teresita O. Luz - Member

5. Irma P.E. Potenciano - Member

6. Eduardo D. De los Angeles - Member

7. Patricia C. Sison - Member

8. Benjamin H. Cervantes - Member

9. Sonia M. Roco - Member

10. Ruperto S. Nicdao, Jr. - Member

11. Lina F. Litton - Member

In its special meeting on 13 July 2001, the CCP Board elected these 11 newly-appointed trustees to
the same positions and as trustees of the CCP Board. In the same meeting, the Board also elected
the Chairman and President.

On 21 December 2001, the Solicitor General submitted to this Court a manifestation stating that the
"election of the trustees was made without prejudice to the resolution of the constitutional issues
before this Honorable Court in G.R. Nos. 139554 and 139565, x x x."15

The Issue of Mootness

We first consider the Rufino group's contention that the Endriga group's quo warranto suit should
have been dismissed for being moot. The Rufino group argued that when the Endriga group's terms
subsequently expired, there was no more actual controversy for the Court to decide.
For the Court to exercise its power of adjudication, there must be an actual case or controversy —
one that involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution.16 The case must not be moot or based on extra-legal or other similar considerations not
cognizable by courts of justice.17 A case becomes moot when its purpose has become stale. 18

The purpose of the quo warranto petition was to oust the Rufino group from the CCP Board and to
declare the Endriga group as the rightful trustees of the CCP Board. It may appear that supervening
events have rendered this case moot with the resignation of the Rufino group as well as the
expiration of the terms of the Endriga group based on their appointments by then President Ramos.
A "new" set of CCP trustees had been appointed by President Macapagal-Arroyo and
subsequently elected by the CCP Board.

However, there are times when the controversy is of such character that to prevent its recurrence,
and to assure respect for constitutional limitations, this Court must pass on the merits of a case. This
is one such case.

The issues raised here are no longer just determinative of the respective rights of the contending
parties. The issues pertaining to circumstances personal to the Endriga group may have become
stale. These issues are (1) whether the Endriga group is estopped from bringing the quo
warranto for they themselves were appointed by the incumbent President; (2) whether they were
validly elected by the remaining CCP trustees; (3) whether their terms expired on 31 December 1998
as specified in their appointment papers; and (4) whether they are entitled to immediate execution of
judgment.

However, the constitutional question that gave rise to these issues will continue to spawn the same
controversy in the future, unless the threshold constitutional question is resolved — the validity of
Section 6(b) and (c) of PD 15 on the manner of filling vacancies in the CCP Board. While the issues
may be set aside in the meantime, they are certain to recur every four years, especially when a new
President assumes office, generating the same controversy all over again. Thus, the issues raised
here are capable of repetition, yet evading review if compromises are resorted every time the same
controversy erupts and the constitutionality of Section 6(b) and (c) of PD 15 is not resolved.

The Court cannot refrain from passing upon the constitutionality of Section 6(b) and (c) of PD 15 if
only to prevent a repeat of this regrettable controversy and to protect the CCP from being
periodically wracked by internecine politics. Every President who assumes office naturally wants to
appoint his or her own trustees to the CCP Board. A frontal clash will thus periodically arise between
the President's constitutional power to appoint under Section 16, Article VII of the 1987 Constitution
and the CCP trustees' power to elect their fellow trustees under Section 6(b) and (c) of PD 15.

This Court may, in the exercise of its sound discretion, brush aside procedural 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 be filled 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
an enumerationof offices whose heads may be vested by law with the power to appoint lower-
ranked officers. This is clear from the framers' deliberations of the 1987 Constitution, thus:

THE PRESIDENT: Commissioner Davide is recognized.

MR. DAVIDE: On page 8, line 3, change the period (.) after "departments" to a comma (,)
and add AGENCIES, COMMISSIONS, OR BOARDS. This is just to complete the
enumeration in the 1935 Constitution from which this additional clause was taken.

THE PRESIDENT: Does the Committee accept?

xxxx

MR. SUMULONG: We accept the amendment.

MR. ROMULO: The Committee has accepted the amendment, Madam President.

THE PRESIDENT: Is there any objection to the addition of the words "AGENCIES,
COMMISSIONS, OR BOARDS" on line 3, page 8? (Silence) The Chair hears none; the
amendment is approved.34 (Italicization in the original; boldfacing supplied)

As an enumeration of offices, what applies to the first office in the enumeration also applies to the
succeeding offices mentioned in the enumeration. Since the words "in the heads of" refer to
"departments," the same words "in the heads of" also refer to the other offices listed in the
enumeration, namely, "agencies, commissions, or boards."

The Chairperson of the CCP Board is the Head of CCP

The head of the CCP is the Chairperson of its Board. PD 15 and its various amendments constitute
the Chairperson of the Board as the head of CCP. Thus, Section 8 of PD 15 provides:

Appointment of Personnel. — The Chairman, with the confirmation of the Board, shall have
the power to appoint all officers, staff and personnel of the Center with such compensation
as may be fixed by the Board, who shall be residents of the Philippines. The Center may
elect membership in the Government Service Insurance System and if it so elects, its officers
and employees who qualify shall have the same rights and privileges as well as obligations
as those enjoyed or borne by persons in the government service. Officials and employees of
the Center shall be exempt from the coverage of the Civil Service Law and Rules.

Section 3 of the Revised Rules and Regulations of the CCP recognizes that the head of the CCP is
the Chairman of its Board when it provides:

CHAIRMAN OF THE BOARD. — The Board of Trustees shall elect a Chairman who must be
one of its members, and who shall be the presiding officer of the Board of Trustees, with
power among others, to appoint, within the compensation fixed by the Board, and subject to
confirmation of the Board, remove, discipline all officers and personnel of the Center, and to
do such other acts and exercise such other powers as may be determined by the Board of
 Trustees. The Chairman shall perform his duties and exercise his powers as such until such
time as the Board of Trustees, by a majority vote, shall elect another Chairman. The
Chairman shall be concurrently President, unless the Board otherwise elects another
President.

Thus, the Chairman of the CCP Board is the "head" of the CCP who may be vested by law, under
Section 16, Article VII of the 1987 Constitution, with the power to appoint lower-ranked officers of the
CCP.

Under PD 15, the CCP is a public corporation governed by a Board of Trustees. Section 6 of PD 15,
as amended, states:

Board of Trustees. — The governing powers and authority of the corporation shall be vested
in, and exercised by, a Board of eleven (11) Trustees who shall serve without compensation.

The CCP, being governed by a board, is not an agency but a board for purposes of Section 16,
Article VII of the 1987 Constitution.

Section 6(b) and (c) of PD 15 Repugnant to

Section 16, Article VII of the 1987 Constitution

Section 6(b) and (c) of PD 15 is thus irreconcilably inconsistent with Section 16, Article VII of the
1987 Constitution. Section 6(b) and (c) of PD 15 empowers the remaining trustees of the CCP Board
to fill vacancies in the CCP Board, allowing them to elect their fellow trustees. On the other hand,
Section 16, Article VII of the 1987 Constitution allows heads of departments, agencies,
commissions, or boards to appoint only "officers lower in rank" than such "heads of departments,
agencies, commissions, or boards." This excludes a situation where the appointing officer appoints
an officer equal in rank as him. Thus, insofar as it authorizes the trustees of the CCP Board to elect
their co-trustees, Section 6(b) and (c) of PD 15 is unconstitutional because it violates Section 16,
Article VII of the 1987 Constitution.

It does not matter that Section 6(b) of PD 15 empowers the remaining trustees to "elect" and not
"appoint" their fellow trustees for the effect is the same, which is to fill vacancies in the CCP Board. A
statute cannot circumvent the constitutional limitations on the power to appoint by filling vacancies in
a public office through election by the co-workers in that office. Such manner of filling vacancies in a
public office has no constitutional basis.

Further, Section 6(b) and (c) of PD 15 makes the CCP trustees the independent appointing power of
their fellow trustees. The creation of an independent appointing power inherently conflicts with the
President's power to appoint. This inherent conflict has spawned recurring controversies in the
appointment of CCP trustees every time a new President assumes office.

In the present case, the incumbent President appointed the Endriga group as trustees, while the
remaining CCP trustees elected the same Endriga group to the same positions. This has been
the modus vivendi in filling vacancies in the CCP Board, allowing the President to appoint and the
CCP Board to elect the trustees. In effect, there are two appointing powers over the same set of
officers in the Executive branch. Each appointing power insists on exercising its own power, even
if the two powers are irreconcilable. The Court must put an end to this recurring anomaly.

The President's Power of Control

There is another constitutional impediment to the implementation of Section 6(b) and (c) of PD 15.
Under our system of government, all Executive departments, bureaus, and offices are under the
control of the President of the Philippines. Section 17, Article VII of the 1987 Constitution provides:

The President shall have control of all the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed. (Emphasis supplied)

The presidential power of control over the Executive branch of government extends to all executive
employees from the Department Secretary to the lowliest clerk.35 This constitutional power of the
President is self-executing and does not require any implementing law. Congress cannot limit or
curtail the President's power of control over the Executive branch. 36

The 1987 Constitution has established three branches of government — the Executive, Legislative
and Judicial. In addition, there are the independent constitutional bodies — like the Commission on
Elections, Commission on Audit, Civil Service Commission, and the Ombudsman. Then there are
the hybrid or quasi-judicial agencies,37 exercising jurisdiction in specialized areas, that are under the
Executive branch for administrative supervision purposes, but whose decisions are reviewable by
the courts. Lastly, there are the local government units, which under the Constitution enjoy local
autonomy38 subject only to limitations Congress may impose by law. 39 Local government units are
subject to general supervision by the President. 40

Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial
branches, or must belong to one of the independent constitutional bodies, or must be a quasi-judicial
body or local government unit. Otherwise, such government office, entity, or agency has no legal
and constitutional basis for its existence.

The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also
not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local
government unit. Thus, the CCP must fall under the Executive branch. Under the Revised
Administrative Code of 1987, any agency "not placed by law or order creating them under any
specific department" falls "under the Office of the President."41

Since the President exercises control over "all the executive departments, bureaus, and offices," the
President necessarily exercises control over the CCP which is an office in the Executive branch. In
mandating that the President "shall have control of all executive x x x offices," Section 17, Article
VII of the 1987 Constitution does not exempt any executive office — one performing executive
functions outside of the independent constitutional bodies — from the President's power of control.
There is no dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial
functions.

The President's power of control applies to the acts or decisions of all officers in the Executive
branch. This is true whether such officers are appointed by the President or by heads of
departments, agencies, commissions, or boards. The power of control means the power to revise or
reverse the acts or decisions of a subordinate officer involving the exercise of discretion. 42

In short, the President sits at the apex of the Executive branch, and exercises "control of all the
executive departments, bureaus, and offices." There can be no instance under the Constitution
where an officer of the Executive branch is outside the control of the President. The Executive
branch is unitary since there is only one President vested with executive power exercising control
over the entire Executive branch.43 Any office in the Executive branch that is not under the control of
the President is a lost command whose existence is without any legal or constitutional basis.
The Legislature cannot validly enact a law that puts a government office in the Executive branch
outside the control of the President in the guise of insulating that office from politics or making it
independent. If the office is part of the Executive branch, it must remain subject to the control of the
President. Otherwise, the Legislature can deprive the President of his constitutional power of control
over "all the executive x x x offices." If the Legislature can do this with the Executive branch, then the
Legislature can also deal a similar blow to the Judicial branch by enacting a law putting decisions of
certain lower courts beyond the review power of the Supreme Court. This will destroy the system of
checks and balances finely structured in the 1987 Constitution among the Executive, Legislative,
and Judicial branches.

Of course, the President's power of control does not extend to quasi-judicial bodies whose
proceedings and decisions are judicial in nature and subject to judicial review, even as such quasi-
judicial bodies may be under the administrative supervision of the President. It also does not extend
to local government units, which are merely under the general supervision of the President.

Section 6(b) and (c) of PD 15, which authorizes the trustees of the CCP Board to fill vacancies in the
Board, runs afoul with the President's power of control under Section 17, Article VII of the 1987
Constitution. The intent of Section 6(b) and (c) of PD 15 is to insulate the CCP from political
influence and pressure, specifically from the President. 44 Section 6(b) and (c) of PD 15 makes the
CCP a self-perpetuating entity, virtually outside the control of the President. Such a public office or
board cannot legally exist under the 1987 Constitution.

Section 3 of PD 15, as amended, states that the CCP "shall enjoy autonomy of policy and operation
x x x."45 This provision does not free the CCP from the President's control, for if it does, then it would
be unconstitutional. This provision may give the CCP Board a free hand in initiating and formulating
policies and undertaking activities, but ultimately these policies and activities are all subject to the
President's power of control.

The CCP is part of the Executive branch. No law can cut off the President's control over the CCP in
the guise of insulating the CCP from the President's influence. By stating that the "President shall
have control of all the executive x x x offices," the 1987 Constitution empowers the President not
only to influence but even to control all offices in the Executive branch, including the
CCP. Control is far greater than, and subsumes, influence.

WHEREFORE, we GRANT the petition in G.R. No. 139554. We

declare UNCONSTITUTIONAL Section 6(b) and (c) of Presidential Decree No. 15, as amended,
insofar as it authorizes the remaining trustees to fill by election vacancies in the Board of Trustees of
the Cultural Center of the Philippines. In view of this ruling in G.R. No. 139554, we find it
unnecessary to rule on G.R. No. 139565.

SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,

Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr.,
J.J., concur.

x -------------------------------------------------------------------------------- x
G.R. No. 139554
(Armita B. Rufino, Zenaida R. Tantoco, Lorenzo Calma, Rafael Simpao, Jr., and Freddie Garcia,
petitioners, v. Baltazar N. Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison, Irma Ponce-Enrile
Potenciano, and Doreen Fernandez, respondents)

G.R. No. 139565

(Baltazar N. Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison, Irma Ponce-Enrile Potenciano, and
Doreen Fernandez, petitioners, v. Armita B. Rufino, Zenaida R. Tantoco, Lorenzo Calma, Rafael
Simpao, Jr., and Freddie Garcia, respondents.)

Promulgated:
July 21, 2006

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

DISSENTING OPINION

TINGA, J.:

The majority's ruling is not as innocuous as it may seem. It is of monumental but disturbing
consequence. It upsets the delicate balance ordained by our constitutional system, which reposes
on the three equal branches of government different inherent functions augmented by specifically
chartered duties. In one fell swoop, it expands executive power in unprecedented fashion
while diminishing the inherent plenary power of Congress to make laws as explicitly
guaranteed by the Constitution. It gives license to the President to disregard the laws
enacted by Congress although it is the Chief Executive's sworn constitutional duty to
faithfully execute the laws of the land, an intolerable notion under the democratic order. With
all due respect, I must dissent.

The majority has voted to uphold the power of the President to appoint the members of the Board of
Trustees (CCP board) of the Cultural Center of the Philippines (CCP), a government owned or
controlled corporation (GOCC) established by P.D. No. 15 as amended (CCP Charter) 1 as a "non-
municipal public corporation."2 A brief reference to the key facts is necessary to illustrate the
seriousness of the problem.

The petitioners in G.R. No. 139565 (Endriga Group) were members of the CCP board who sat in
such capacity beginning in 1995. Then President Ramos issued appointment papers to the members
of the Endriga Group in 1995, qualifying that their appointment would extend only until 31 December
1998. At the same time, the Endriga Group was likewise elected by the CCP board as members of
the board, with Endriga himself elected as President.

On 22 December 1998, President Estrada advised Endriga through a letter advising him of seven (7)
new appointees (the Rufino Group) to the CCP board replacing the Endriga Group. The Endriga
Group resisted these new appointments by filing a quo warranto petition, the resolution of which by
the Court of Appeals spawned the present petitions.

In main, the Endriga Group posited that they could not have been replaced by President Estrada as
they had not yet completed their four-year term of office as provided in the CCP Charter. The Court
of Appeals3 agreed with the basic position of the Endriga Group, notwithstanding the proviso made
by President Ramos in his appointment papers. The Court of Appeals compelled obeisance instead
to Section 6 of the CCP Charter which reads:

Sec. 6. Board of Trustees. – The governing powers and authority of the corporation shall be
vested in, and exercised by, a Board of eleven (11) trustees who shall serve without
compensation.

(a) The trustees appointed by the President of the Philippines pursuant to Executive Order
No. 30 dated 25 June 1966, and currently holding office shall be the first trustees to serve on
the Board of the new Center and shall be known as Founding Trustees. They shall elect the
remaining trustees for a complete [Board]. Elected trustees shall hold office for a period of
four (4) years.

(b) Vacancies in the Board of Trustees due to termination of term, resignation, incapacity,
death or other cause as may be provided in the By-laws, shall be filled by election by a vote
of a majority of the trustees held at the next regular meeting following occurrence of such
vacancy. The elected trustee shall then hold office for a complete term of four years unless
sooner terminated by reason of resignation, incapacity, death or other cause. Should only
one trustee survive, the vacancies shall be filled by the surviving trustee acting in
consultation with the ranking officers of the Center. Such officers shall be designated in the
Center's Code of By-Laws. Should for any reason the Board be left entirely vacant, the same
shall be filled by the President of the Philippines acting in consultation with the
aforementioned ranking officers of the Center. 4

The CCP Charter clearly states that the trustees appointed by the President in 1966 shall elect the
remaining trustees to complete the board, and such electees shall hold office for a period of four (4)
years. Subsequent vacancies in the board shall be filled by the Board of Trustees, through a majority
vote, with the new appointee serving for a four (4)-year term. The power to select the members of
the Board of Trustees is always vested in the board, no matter the number of persons who are
serving therein at a particular time, except when all the positions in the board without exception are
vacant. It is only then that the President may exercise the power to appoint the members of the
board, subject to the condition that the appointments be made in consultation with the ranking
officers of the CCP.

The majority, reversing the Court of Appeals, holds this setup prescribed by Section 6 of the CCP
Charter, unconstitutional. Two grounds are offered for this holding. First, Section 16, 5 Article VII of
the Constitution (Appointments Clause) limits the authority of Congress to vest the power of
appointment over lower-ranked officials only to "heads of departments, agencies, commissions or
boards." In the majority's estimation, the CCP should be considered as a "board" for purposes of the
Appointments Clause, and thus, only the chairperson of the CCP could be authorized by law to
exercise the right to appoint.6

Second, the presidential power of control over the executive branch, as provided in Section
17,7 Article VII of the Constitution (Executive Control Clause), grants the President control over the
CCP. The authority of the CCP board of Trustees to fill vacancies in the Board renders the CCP a
"self-perpetuating entity [outside] the control of the President," and is thus unconstitutionally drawn. 8

It is not readily apparent from the ponencia whether it maintains that executive control, as
contemplated in the Constitution, empowers the President to make all appointments of officers and
officials within the executive branch. If that were the position, such view is clearly inconsistent with
the Appointments Clause which categorically authorizes Congress to empower officials other than
the President to make such appointments, in the case of lower-ranked officials. To sustain the
expansive view that "executive control" extends to the power of the President to make all
appointments in the executive branch would render the Appointments Clause inutile. It would then
be senseless to acknowledge that Congress has the right to authorize the heads of departments,
agencies, commissions or boards to appoint their junior officers, since executive control would
indubitably vest that right to the President anyway. It is nonetheless cold comfort that the majority
does not expressly frame such a view, and I hope that the ponencia does not lay the groundwork for
such a radical notion.

Notwithstanding, I prefer to delineate the critical issues in the following manner. The Appointments
Clause, being complete in itself, is the sole constitutional provision governing the authority of the
President to make appointments to the executive branch, as well as the authority of Congress to
provide otherwise in certain instances. The Executive Control Clause does not extend to the
presidential power of appointments. Thus, in ruling on whether or not the President or the CCP
Board of Trustees has the power to appoint members of the board, it is the Appointments Clause
alone that should govern.

At the same time, due consideration of the Executive Control Clause is also warranted in the present
cases, but for a different purpose. It is clear from the petitions that assailed also are the acts of
President Ramos in limiting below four (4) years the term of his appointees to the CCP board, and
the subsequent act of President Estrada in appointing new appointees to the board despite the fact
that the four(4)-year term of those persons who purportedly vacated their seats had not yet expired.
Thus, a second critical issue arises: whether the holder of a statutory term of office in the
executive branch may be removed from office by the President on the basis of the power of
executive control.

The Power of Appointment in Relation to the CCP Board of Trustees

Constitutional authority to make appointments within the executive branch is governed solely by the
Appointments Clause of the Constitution, which is broad enough to cover all possible appointment
scenarios. The provision states:

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

The first sentence of the Appointments Clause enumerates the officers whom only the President
may appoint, subject to the consent of the Commission of Appointments. There is no doubt that no
official of the CCP, or any GOCC for that matter, is included in this first category of appointees. 9

The second and third sentences must be examined together. The second sentence authorizes the
President to appoint all other officers whose appointments are not otherwise provided for by law, or
those whom he may be authorized to appoint by law. This authority must be appreciated with the
third sentence, which authorizes Congress to vest the appointment of other officers lower in rank to
the President, the courts, or in the heads of departments, agencies, commissions, or boards.
Thus, as regards the officials in the executive branch other than those enumerated in the first
sentence of the Appointments Clause, or those who do not belong to the first category, the following
valid scenarios are authorized: (1) the law may expressly authorize the President to make the
appointment; (2) the law may expressly authorize the courts or the heads of departments, agencies,
commissions or boards to appoint those officers lower in rank; (3) the law may remain silent on the
power of appointment, thus enabling the President to make the appointment on the basis of the
Appointments Clause itself. Implicitly, it can also be argued that other than the case of "other officers
lower in rank," Congress may authorize a person or entity other than the President to appoint all
such other officers, or provide for a modality through which such appointment may be made. I am
aware that this last point may be a source of controversy, yet for reasons I shall explain later, it is not
an issue in the particular cases at bar and, hence, need not be settled for now.

From the same provision, the majority formulates two premises: that the CCP is considered a
"board" or "Board" for purposes of the Appointments Clause, 10 and, that only the President or the
chairperson of the CCP Board of Trustees, may be authorized by law to appoint officials of the
CCP.11 I respectfully disagree with both premises.

CCP an Agency under the Appointments Clause

I submit that "boards," as used in the Appointments Clause, does not pertain to the boards of
directors of government or public corporations such as the CCP. Such GOCCs are properly
considered as agencies which nonetheless fall within the same classification in the Appointments
Clause.

The term "board" or "Board,"12 as utilized in the administrative bureaucracy, may pertain to different
entities performing different functions under different mandates. There are several prominent
government agencies which use the nomenclature "Board," such as the Monetary Board (MB), the
Housing Land Use and Regulatory Board (HLURB), the Department of Agrarian Reform Adjudication
Board (DARAB), the Movie and Television Review and Classification Board (MTRCB), and the
former Energy Regulatory Board, among others. Collegial bodies such as the Boards just mentioned
have long formed part of the executive superstructure, along with departments, agencies and
commissions. Hence, it came as no surprise that all four (4) entities were lumped together in the
Appointments Clause.

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

appreciated in a different context. Unlike the Boards enumerated above, the board of
directors/trustees does not constitute a unit that operates by itself as an agency of the government.
Instead, such board of directors/trustees, as a general rule, operates as the body that exercises
the corporate powers of the government corporations concerned. The Constitution itself authorizes
the creation of government-owned or controlled corporations through special charters,13 and the
CCP was established as a public corporation through Presidential Decree No. 15, its charter.

The majority believes differently, stating that since the CCP is governed by a board, it is not an
agency but a Board for purposes of the Appointments Clause. The majority explains this away by
merely noting that there is such an entity as the CCP Board of Trustees. The bother of explaining
why the CCP is a board, as distinguished from a department, agency or commission is altogether
avoided. Instead, it is assumed as self-evident that since there is a CCP Board of Trustees, the CCP
is consequently a board.

For one, the CCP itself may be considered as an agency since under the Administrative Code, an
agency includes a government-owned or controlled corporation.14 The term "Board," used in a
general sense, has been defined as a representative body organized to perform a trust or to execute
official or representative functions,15 or 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 or boards (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 ex-
officio capacity. Such ex-officioappointments are not expressly provided for in the Constitution.
Following the majority's literalist reading of the Appointments Clause, ex-officio appointments are
similarly invalid as they do not derive from the exclusive appointment power of the President or the
chairperson of the board.

Again, with all due respect, the rationale is predicated on a flawed interpretation of the terms "head"
and "board" (Board) as used in Section 16, Article VII, a reading that is alien to the common
understanding of corporate personality, as well as actual corporate practice. On the contrary, the
procedure outlined in Section 6 of the CCP Charter, vesting in the CCP Board of Trustees the
authority to appoint the members of the board, is congruent with constitutional order. It should be
stressed anew that the CCP Board itself is the head of the CCP and that any individual member of
the board is lower in rank than the board itself.

It is de rigueur for directors of a corporation to fill vacancies in their own Board where such power is
conferred upon them by statute or charter or by by-law.37 Modern statutes typically provide that
vacancies in the Board, regardless of the cause, may be filled up by the Board itself, side by side
with an identical power vested in the shareholders. 38Among 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,43 by 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.49 Considering 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-à-vis that over employees belonging to the classified
service.

There is some point in the argument that the power of control of the President may extend to
the power to investigate, suspend or remove officers and employees who belong to the
executive department if they are presidential appointees or do not belong to the classified
service for such can be justified under the principle that the power to remove is inherent in
the power to appoint (Lacson vs. Romero, supra), but not with regard to those officers and
employees who belong to the classified service for as to them that inherent power cannot be
exercised. This is in line with the provision of our Constitution which says that "the Congress
may by law vest the appointment of the inferior officers, in the President alone, in the courts,
or in heads of department" (Article VII, Section 10 (3), Constitution). With regard to these
officers whose appointments are vested on heads of departments, Congress has
provided by law for a procedure for their removal precisely in view of this
constitutional authority.62

Evidently, Ang-Angco lays the precedent for distinguishing between officials whose tenure are
protected under the civil service law, and those who enjoy no such statutory protection. The 1987
Constitution likewise makes it explicit that GOCCs with original charters such as the CCP are
embraced under the civil service. Reference is thus necessary to the provisions of the present civil
service law, particularly the Administrative Code of 1987.

The Administrative Code restates that GOCCs with original charters are within the scope of the civil
service.63 It further classifies positions in the civil service into career service and non-career
service.64 Generally, personnel of GOCCs are classified as career service, provided that they do not
fall under the non-career service. On the other hand, the Administrative Code provides that non-
career service employees under the Administrative Code are characterized by:

The Non-Career Service shall be characterized by (1) entrance on bases other than those of
the usual tests of merit and fitness utilized for the career service; and (2) tenure which is
limited to a period specified by law, or which is coterminous with that of the appointing
authority or subject to his pleasure, or which is limited to the duration of a particular project
for which purpose employment was made.

Included in the non-career service are:

1. Elective officials and their personal or confidential staff;

 2. Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of
the President and their personal confidential staff(s);

3. Chairman and Members of Commissions and boards with fixed terms of office and their
personal or confidential staff;

4. Contractual personnel or those whose employment in the government is in accordance

with a special contract to undertake a specific work or job requiring special or technical skills
not available in the employing agency, to be accomplished within a specific period, which in
no case shall exceed one year and performs or accomplishes the specific work or job, under
his own responsibility with a minimum of direction and supervision from the hiring agency;

5. Emergency and seasonal personnel. 65

Since the members of the CCP board are appointed to a fixed tenure, the four (4)-year period
specified by the CCP Charter, they may be properly considered as non-career service. Yet, even if
these members fall within non-career service, their right to security of tenure is guaranteed both by
the Constitution and by law.

Section 2. xxx

(3) No officer or employee of the civil service shall be removed or suspended except for
cause provided by law.66

xxx

Sec. 46. Discipline: General Provisions. – (a) No officer or employee in the Civil Service shall
be suspended or dismissed except for cause as provided by law and after due process. 67

What are thus the implications of the constitutionally guaranteed right to security of tenure to
non-career service officials of GOCCs with original charter, particularly those whose
appointments are for a fixed term? Simply put, these officials cannot be removed from office
before the expiration of their term without cause, or for causes other than those specified by
either the GOCC's charter, the Administrative Code, or other relevant civil service laws.
Otherwise, their removal is unconstitutional.

An appointing power cannot arbitrarily remove an officer if the tenure is fixed by law, or if the officer
is appointed to hold during the pleasure of some officer or board other than that appointing him.68 In
the absence of any provision for summary removal, an individual appointed to a post for a fixed term
may be removed prior to the term's expiration only for cause. It is the fixity of the term that destroys
the power of removal at pleasure.69

Under the CCP Charter, the term of a trustee may be terminated "due to termination of term,
resignation, incapacity, death or other cause as may be provided in the By-laws."70 These are the
causes by law which may cause the dismissal of a member of the CCP board. In this case, the right
of the Rufino Group to sit on the CCP board is premised on the claim that the members of the
Endriga Group vacated their seats before the expiration of the four (4)-year term owing to the
conditionalities made by President Ramos to their appointment. I have already pointed out that
President Ramos did not have the authority to appoint the Endriga Group, but that they still were
validly elected to the Board upon vote by the CCP board. Evidently, the conditionality restricting the
Endriga Group to serve for a period less than the statutory term of four (4) years is invalid, whether
or not it was attached to a valid appointing authority.

Clearly then, the power of the President to remove appointed officials of GOCCs with original
charters, grounded as it could be in the power of "executive control" in the Constitution, is
circumscribed by another constitutional provision. There is no showing that the Endriga Group was
validly removed for legal cause before the expiration of their four (4)-year term. Hence, their removal
is unconstitutional, as is the appointment of the Rufino Group to fill seats to the CCP board that had
not yet become vacant.

CCP Governed by its Statutory Charter

Special considerations must likewise be appreciated owing to the fact that the CCP is a GOCC with
an original charter. The Constitution authorizes the creation or establishment of GOCCs with original
charters.71 Section 6 of the Corporation Code states that "[c]orporations created by special laws or
charters shall be governed primarily by the provisions of the special law or charter creating them or
applicable to them."72

Obviously, since the CCP Charter mandates a four (4)-year term for the members of the CCP board,
such condition is binding as a law governing the CCP. Hence, any measure diminishing a duly
elected trustee's right to serve out the four (4)-year term solely on the basis of the President's
discretion or pleasure runs contrary to law. This is a simple way to look at the issue, and its
starkness does not detract from its inherent validity. Still, a deeper examination into the question
supports the same conclusion.

There is no question that a GOCC with original charter falls within the executive department, hence
generally subject to executive control. At the same time, the fact that its creation is sourced from
legislative will should give cause for pause. GOCCs may be created by the State either through the
legislative route—the enactment of its original charter, or the executive route—its 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 worthless—an 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
 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 in Gold Creek Mining Corp. vs. Rodriguez, 1 that:

The fundamental principle of constitutional construction is to give effect to the intent

of the framers of the organic law and of the people adopting it. The intention to which
 force is to be given is that which is embodied and expressed in the constitutional
provisions themselves.

The Court will thus construe the applicable constitutional provisions, not in accordance with how the
executive or the legislative department may want them construed, but in accordance with what they
say and provide.

Section 16, Article VII of the 1987 Constitution says:

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

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

It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four
(4) groups of officers whom the President shall appoint. These four (4) groups, to which we will
hereafter refer from time to time, are:

First, the heads of the executive departments, ambassadors, other public ministers
and consuls, officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution; 2

Second, all other officers of the Government whose appointments are not otherwise
provided for by law; 3

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in
the President alone.

The first group of officers is clearly appointed with the consent of the Commission on Appointments.
Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the
Commission on Appointments, the President appoints. 5

The second, third and fourth groups of officers are the present bone of contention. Should they be
appointed by the President with or without the consent (confirmation) of the Commission on
Appointments? By following the accepted rule in constitutional and statutory construction that an
express enumeration of subjects excludes others not enumerated, it would follow that only those
appointments to positions expressly stated in the first group require the consent (confirmation) of the
Commission on Appointments. But we need not rely solely on this basic rule of constitutional
construction. We can refer to historical background as well as to the records of the 1986
Constitutional Commission to determine, with more accuracy, if not precision, the intention of the
framers of the 1987 Constitution and the people adopting it, on whether the appointments by the
President, under the second, third and fourth groups, require the consent (confirmation) of the
Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad
Santos in Gold Creek is apropos:

In deciding this point, it should be borne in mind that a constitutional provision must
be presumed to have been framed and adopted in the light and understanding of
prior and existing laws and with reference to them. "Courts are bound to presume
that the people adopting a constitution are familiar with the previous and existing
laws upon the subjects to which its provisions relate, and upon which they express
their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W.,
769,65 L. R. A., 762.) 6

It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that —

xxx xxx xxx

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

(4) The President shall havethe power to make appointments during the recess of
the Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.

xxx xxx xxx

(7) ..., and with the consent of the Commission on Appointments, shall appoint
ambassadors, other public ministers and consuls ...

Upon the other hand, the 1973 Constitution provides that-

Section 10. The President shall appoint the heads of bureaus and offices, the officers
of the Armed Forces of the Philippines from the rank of Brigadier General or
Commodore, and all other officers of The government whose appointments are not
herein otherwise provided for, and those whom he may be authorized by law to
appoint. However, the Batasang Pambansa may by law vest in the Prime Minister,
members of the Cabinet, the Executive Committee, Courts, Heads of Agencies,
Commissions, and Boards the power to appoint inferior officers in their respective
offices.

Thus, in the 1935 Constitution, almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. It is now a sad part of our political history that
the power of confirmation by the Commission on Appointments, under the 1935 Constitution,
transformed that commission, many times, into a venue of "horse-trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was
molded and remolded by successive amendments, placed the absolute power of appointment in the
President with hardly any check on the part of the legislature.

Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973
Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and the
people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the
Commission on Appointments for the first group of appointments and leaving to the President,
without such confirmation, the appointment of other officers, i.e., those in the second and third
groups as well as those in the fourth group, i.e., officers of lower rank.

The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of
Section 16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional
Commission, read as follows:

Section 16. The president shall nominate and, with the consent of a Commission on
Appointment, shall appoint the heads of the executive departments and bureaus,
ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain and all other officers of the Government
whose appointments are not otherwise provided for by law, and those whom he may
be authorized by law to appoint. The Congress may by law vest the appointment of
inferior officers in the President alone, in the courts, or in the heads of
departments 7 [Emphasis supplied].

The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When
the frames discussed on the floor of the Commission the proposed text of Section 16, Article VII, a
feeling was manifestly expressed to make the power of the Commission on Appointments over
presidential appointments more limited than that held by the Commission in the 1935 Constitution.
Thus-

Mr. Rama: ... May I ask that Commissioner Monsod be recognized

The President: We will call Commissioner Davide later.

Mr. Monsod: With the Chair's indulgence, I just want to take a few
minutes of our time to lay the basis for some of the amendments that
I would like to propose to the Committee this morning.

xxx xxx xxx

On Section 16, I would like to suggest that the power of the Commission on
Appointments be limited to the department heads, ambassadors, generals and so on
but not to the levels of bureau heads and colonels.

xxx xxx xxx 8 (Emphasis supplied.)

In the course of the debates on the text of Section 16, there were two (2) major changes proposed
and approved by the Commission. These were (1) the exclusion of the appointments of heads of
bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the
exclusion of appointments made under the second sentence 9 of the section from the same
requirement. The records of the deliberations of the Constitutional Commission show the following:
 MR. ROMULO: I ask that Commissioner Foz be recognized

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, my proposed amendment is on page 7,

Section 16, line 26 which is to delete the words "and bureaus," and
on line 28 of the same page, to change the phrase 'colonel or naval
captain to MAJOR GENERAL OR REAR ADMIRAL. This last
amendment which is co-authored by Commissioner de Castro is to
put a period (.) after the word ADMIRAL, and on line 29 of the same
page, start a new sentence with: HE SHALL ALSO APPOINT, et
cetera.

MR. REGALADO: May we have the amendments one by one. The

first proposed amendment is to delete the words "and bureaus" on
line 26.

MR. FOZ: That is correct.

MR. REGALADO: For the benefit of the other Commissioners, what

would be the justification of the proponent for such a deletion?

MR. FOZ: The position of bureau director is actually quite low in the
executive department, and to require further confirmation of
presidential appointment of heads of bureaus would subject them to
political influence.

MR. REGALADO: The Commissioner's proposed amendment by

deletion also includes regional directors as distinguished from merely
staff directors, because the regional directors have quite a plenitude
of powers within the regions as distinguished from staff directors who
only stay in the office.

MR. FOZ: Yes, but the regional directors are under the supervisiopn
of the staff bureau directors.

xxx xxx xxx

MR. MAAMBONG: May I direct a question to Commissioner Foz?

The Commissioner proposed an amendment to delete 'and bureaus
on Section 16. Who will then appoint the bureau directors if it is not
the President?

MR. FOZ: It is still the President who will appoint them but their
appointment shall no longer be subject to confirmation by the
Commission on Appointments.

MR. MAAMBONG: In other words, it is in line with the same answer

of Commissioner de Castro?

MR. FOZ: Yes.

 MR. MAAMBONG: Thank you.

THE PRESIDENT: Is this clear now? What is the reaction of the

Committee?

xxx xxx xxx

MR. REGALADO: Madam President, the Committee feels that this

matter should be submitted to the body for a vote.

MR. DE CASTRO: Thank you.

MR. REGALADO: We will take the amendments one by one. We will

first vote on the deletion of the phrase 'and bureaus on line 26, such
that appointments of bureau directors no longer need confirmation by
the Commission on Appointment.

Section 16, therefore, would read: 'The President shall nominate, and with the
consent of a Commission on Appointments, shall appoint the heads of the executive
departments, ambassadors. . . .

THE PRESIDENT: Is there any objection to delete the phrase 'and

bureaus' on page 7, line 26? (Silence) The Chair hears none; the
amendments is approved.

xxx xxx xxx

MR. ROMULO: Madam President.

THE PRESIDENT: The Acting Floor Leader is recognized.

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, this is the third proposed amendment

on page 7, line 28. 1 propose to put a period (.) after 'captain' and on
line 29, delete 'and all' and substitute it with HE SHALL ALSO
APPOINT ANY.

MR. REGALADO: Madam President, the Committee accepts the

proposed amendment because it makes it clear that those other
officers mentioned therein do not have to be confirmed by the
Commission on Appointments.

MR. DAVIDE: Madam President.

THE PRESIDENT: Commissioner Davide is recognized.

xxx xxx xxx

 MR. DAVIDE: So would the proponent accept an amendment to his
amendment, so that after "captain" we insert the following words:
AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED
IN HIM IN THIS CONSTITUTION?

FR. BERNAS: It is a little vague.

MR. DAVIDE: In other words, there are positions provided for in the
Constitution whose appointments are vested in the President, as a
matter of fact like those of the different constitutional commissions.

FR. BERNAS: That is correct. This list of officials found in Section 16

is not an exclusive list of those appointments which constitutionally
require confirmation of the Commission on Appointments,

MR. DAVIDE: That is the reason I seek the incorporation of the words
I proposed.

FR. BERNAS: Will Commissioner Davide restate his proposed

amendment?

MR. DAVIDE: After 'captain,' add the following: AND OTHER

OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN
THIS CONSTITUTION.

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

APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
CONSTITUTION"?

MR. DAVIDE: Yes, Madam President, that is modified by the

Committee.

FR. BERNAS: That will clarify things.

THE PRESIDENT: Does the Committee accept?

MR. REGALADO: Just for the record, of course, that excludes those
officers which the Constitution does not require confirmation by the
Commission on Appointments, like the members of the judiciary and
the Ombudsman.

MR. DAVIDE: That is correct. That is very clear from the modification
made by Commissioner Bernas.

THE PRESIDENT: So we have now this proposed amendment of

Commissioners Foz and Davide.

xxx xxx xxx

THE PRESIDENT: Is there any objection to this proposed

amendment of Commissioners Foz and Davide as accepted by the
 Committee? (Silence) The Chair hears none; the amendment, as
amended, is approved 10 (Emphasis supplied).

It is, therefore, clear that appointments to the second and third groups of officers can
be made by the President without the consent (confirmation) of the Commission on
Appointments.

It is contended by amicus curiae, Senator Neptali Gonzales, that the second

sentence of Sec. 16, Article VII reading-

He (the President) shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law and those whom he may be
authorized by law to appoint . . . . (Emphasis supplied)

with particular reference to the word "also," implies that the President shall "in like manner" appoint
the officers mentioned in said second sentence. In other words, the President shall appoint the
officers mentioned in said second sentence in the same manner as he appoints officers mentioned
in the first sentence, that is, by nomination and with the consent (confirmation) of the Commission on
Appointments.

Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of
the conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in
addition; as well; besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which
meanings could, on the contrary, stress that the word "also" in said second sentence means that the
President, in addition to nominating and, with the consent of the Commission on Appointments,
appointing the officers enumerated in the first sentence, can appoint (without such consent
(confirmation) the officers mentioned in the second sentence-

Rather than limit the area of consideration to the possible meanings of the word "also" as used in the
context of said second sentence, the Court has chosen to derive significance from the fact that the
first sentence speaks of nomination by the President and appointment by the President with the
consent of the Commission on Appointments, whereas, the second sentence speaks only of
appointment by the President. And, this use of different language in two (2) sentences proximate to
each other underscores a difference in message conveyed and perceptions established, in line with
Judge Learned Hand's observation that "words are not pebbles in alien juxtaposition" but, more so,
because the recorded proceedings of the 1986 Constitutional Commission clearly and expressly
justify such differences.

As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are
officers whose appointments require no confirmation of the Commission on Appointments, even if
such officers may be higher in rank, compared to some officers whose appointments have to be
confirmed by the Commission on Appointments under the first sentence of the same Sec. 16, Art.
VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no confirmation by the
Commission on Appointments, even if he is higher in rank than a colonel in the Armed Forces of the
Philippines or a consul in the Consular Service.

But these contrasts, while initially impressive, merely underscore the purposive intention and
deliberate judgment of the framers of the 1987 Constitution that, except as to those officers whose
appointments require the consent of the Commission on Appointments by express mandate of the
first sentence in Sec. 16, Art. VII, appointments of other officers are left to the President without
need of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to
presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what they
were doing and of the foreseable effects thereof.

Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on

or qualifications of such power should be strictly construed against them. Such limitations or
qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence of
Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions therein
enumerated require the consent of the Commission on Appointments.

As to the fourth group of officers whom the President can appoint, the intervenor Commission on
Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which
reads:

The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments, agencies,
commissions, or boards. [Emphasis supplied].

and argues that, since a law is needed to vest the appointment of lower-ranked officers in the
President alone, this implies that, in the absence of such a law, lower-ranked officers have to be
appointed by the President subject to confirmation by the Commission on Appointments; and, if this
is so, as to lower-ranked officers, it follows that higher-ranked officers should be appointed by the
President, subject also to confirmation by the Commission on Appointments.

The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII,
abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law vest their
appointment in the President, in the courts, or in the heads of the various departments, agencies,
commissions, or boards in the government. No reason however is submitted for the use of the word
"alone" in said third sentence.

The Court is not impressed by both arguments. It is of the considered opinion, after a careful study
of the deliberations of the 1986 Constitutional Commission, that the use of the word alone" after the
word "President" in said third sentence of Sec. 16, Article VII is, more than anything else, a slip
or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the following provision
appears at the end of par. 3, section 1 0, Article VII thereof —

...; but the Congress may by law vest the appointment of inferior officers, in the
President alone, in the courts, or in the heads of departments. [Emphasis supplied].

The above provision in the 1935 Constitution appears immediately after the provision which makes
practically all presidential appointments subject to confirmation by the Commission on Appointments,
thus-

3. The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from the
rank of captain or commander, and all other officers of the Government whose
appointments are not herein provided for, and those whom he may be authorized by
law to appoint; ...

In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to
confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an
exception to such rule, to provide that Congress may, however, by law vest the appointment of
inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987 Constitution) in the
President alone, in the courts, or in the heads of departments,

In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its
framers was to exclude presidential appointments from confirmation by the Commission on
Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16,
Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the
word "alone" after the word "President" in providing that Congress may by law vest the appointment
of lower-ranked officers in the President alone, or in the courts, or in the heads of departments,
because the power to appoint officers whom he (the President) may be authorized by law to appoint
is already vested in the President, without need of confirmation by the Commission on
Appointments, in the second sentence of the same Sec. 16, Article VII.

Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of
lower-ranked officers, the Congress may by law vest their appointment in the President, in the
courts, or in the heads of various departments of the government. In short, the word "alone" in the
third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the last part of
par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the light of the
second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and
positive intent of the framers of the 1987 Constitution that presidential appointments, except those
mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the
Commission on Appointments.

Coming now to the immediate question before the Court, it is evident that the position of
Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of
appointments where the consent of the Commission on Appointments is required. As a matter of
fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus" among those
officers whose appointments need the consent of the Commission on Appointments, the 1987
Constitution on the other hand, deliberately excluded the position of "heads of bureaus" from
appointments that need the consent (confirmation) of the Commission on Appointments.

Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau
of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff
and Customs Code of the Philippines, which was enacted by the Congress of the Philippines on 22
June 1957, reads as follows:

601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and
one assistant chief, to be known respectively as the Commissioner (hereinafter
known as the 'Commissioner') and Assistant Commissioner of Customs, who shall
each receive an annual compensation in accordance with the rates prescribed by
existing laws. The Assistant Commissioner of Customs shall be appointed by the
proper department head.

Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No.
34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now
reads as follows:

Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall
have one chief and one assistant chief, to be known respectively as the
Commissioner (hereinafter known as Commissioner) and Deputy Commissioner of
Customs, who shall each receive an annual compensation in accordance with the
rates prescribed by existing law. The Commissioner and the Deputy Commissioner
 of Customs shall be appointed by the President of the Philippines (Emphasis
supplied.)

Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the
1935 Constitution, under which the President may nominate and, with the consent of the
Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau
of Customs.

After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be
read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the
Commissioner of the Bureau of Customs is one that devolves on the President, as an appointment
he is authorizedby law to make, such appointment, however, no longer needs the confirmation of the
Commission on Appointments.

Consequently, we rule that the President of the Philippines acted within her constitutional authority
and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs,
without submitting his nomination to the Commission on Appointments for confirmation. He is thus
entitled to exercise the full authority and functions of the office and to receive all the salaries and
emoluments pertaining thereto.

WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED.
Without costs.

SO ORDERED.

Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court has deemed it necessary and proper, in consonance with its constitutional duty, to
adjudicate promptly the issue at bar and to rule that the direct appointment of respondent Salvador
Mison as Commissioner of the Bureau of Customs (without need of submitting a prior nomination to
the Commission on Appointments and securing its confirmation) is valid and in accordance with the
President's constitutional authority to so appoint officers of the Government as defined in Article VII,
section 16 of the 1987 Constitution. The paramount public interest and the exigencies of the public
service demand that any doubts over the validity of such appointments be resolved expeditiously in
the test case at bar.

It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation
of December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For
the Confirmation By the Commission on Appointments of All Nominations and Appointments Made
by the President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the
House of Representatives. " This omission has been deliberate. The Court has resolved the case at
bar on the basis of the issues joined by the parties. The contingency of approval of the bill
mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of the
direct appointment of respondent Mison and other appointees similarly situated as in G.R. No.
80071, "Alex G. Almario vs. Hon. Miriam Defensor- Santiago." The Court does not deal with
constitutional questions in the abstract and without the same being properly raised before it in a
justiciable case and after thorough discussion of the various points of view that would enable it to
render judgment after mature deliberation. As stressed at the hearing of December 8, 1987, any
discussion of the reported bill and its validity or invalidity is premature and irrelevant and outside the
scope of the issues resolved in the case at bar.

MELENCIO-HERRERA, J., concurring:

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply
wish to add my own reading of the Constitutional provision involved.

Section 16, Article VII, of the 1987 Constitution provides:

The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution.

He shall also appoint all other officers of the Government whose appointments are
not otherwise provided for by law, and those whom he may be authorized by law to
appoint.

The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of the departments, agencies,
commissions or boards.

The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress (Emphasis and 1st three paragraphings, supplied).

The difference in language used is significant. Under the first sentence it is clear that the President
"nominates" and with the consent of the Commission on Appointments "appoints" the officials
enumerated. The second sentence, however, significantly uses only the term "appoint" all other
officers of the Government whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. Deliberately eliminated was any reference
to nomination.

Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second
sentence from confirmation by the Commission on Appointments is, to my mind, quite clear. So also
is the fact that the term "appoint" used in said sentence was not meant to include the three distinct
acts in the appointing process, namely, nomination, appointment, and commission. For if that were
the intent, the same terminologies in the first sentence could have been easily employed.

There should be no question either that the participation of the Commission on Appointments in the
appointment process has been deliberately decreased in the 1987 Constitution compared to that in
the 1935 Constitution, which required that all presidential appointments be with the consent of the
Commission on Appointments.

The interpretation given by the majority may, indeed, lead to some incongruous situations as
stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future.
The task of constitutional construction is to ascertain the intent of the framers of the Constitution and
thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No.
21064, February 18, 1970, 31 SCRA 413). And the primary source from which to ascertain
constitutional intent is the language of the Constitution itself.

SARMIENTO, J., concurring:

I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to
prior Congressional confirmation, thus:

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

The President shall have the power to make appointments during recess of the
Congress, whether voluntary or compulsory, but such appointment shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress. 1

By its plain language, the Constitution has intended that only those grouped under the first sentence
are required to undergo a consenting process. This is a significant departure from the procedure set
forth in the 1935 Charter:

(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from the
rank of captain to commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may by law vest the appointment of
inferior officers, in the President alone, in the courts, or in the heads of departments. 2

under which, as noted by the majority, "almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no
extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say,
to require all Presidential appointments clearance from the Commission on Appointments, they could
have simply reenacted the Constitution's 1935 counterpart. 4

I agree that the present Constitution classifies four types of appointments that the President may
make: (1) appointments of heads of executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of colonel or naval captain, and those of
other officers whose appointments are vested in him under the Constitution, including the regular
members of the Judicial and Bar Council, 5 the Chairman and Commissioners of the Civil Service
Commission, 6 the Chairman and Commissioners of the Commission on Elections, 7 and the
Chairman and Commissioners of the Commission on Audit; 8 (2) those officers whose appointments
are not otherwise provided for by law; (3) those whom he may be authorized by law to appoint; and
(4) officers lower in rank whose appointments the Congress may vest in the President alone.

But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written
a "rather confused Constitution" 9 with respect, to a large extent, to its other parts, and with respect,
to a certain extent, to the appointing clause itself, in the sense that it leaves us for instance, with the
incongruous situation where a consul's appointment needs confirmation whereas that of
Undersecretary of Foreign

Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge.
That is a question addressed to the electorate, and who, despite those "eccentricities," have
stamped their approval on that Charter. "The Court," avers the majority, "will thus construe the
applicable constitutional provisions, not in accordance with how the executive or the legislative
department may want them construed, but in accordance with what they say and provide." 10

It must be noted that the appointment of public officials is essentially an exercise of executive
power. 11 The fact that the Constitution has provided for a Commission on Appointments does not minimize the extent of such a power,
much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms that "[a]ppointment
to office is intrinsically an executive act involving the exercise of discretion." 12 Springer v. Philippine Islands 13 on the other hand,
underscored the fact that while the legislature may create a public office, it cannot name the official to discharge the functions appurtenant
thereto. And while it may prescribe the qualifications therefor, it cannot circumscribe such qualifications, which would unduly narrow the
President's choice. In that event, it is as if it is the legislature itself conferring the appointment.

Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains
his supremacy as the appointing authority. In case of doubt, the same should be resolved in favor of
the appointing power.

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

The system of checks and balances is not peculiar to the provision on appointments. The prohibition,
for instance, against the enactment of a bill of attainder operates as a bar against legislative
encroachment upon both judicial and executive domains, since the determination of guilt and
punishment of the guilty address judicial and executive functions, respective y. 16

And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both
ways. In a very real sense, the power of appointment constitutes a check against legislative
authority. In Springer v. Philippine Islands, 17we 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. In Ingles 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 of expressio 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, 17we 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. In Ingles 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 of expressio 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.

V
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C
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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:

1
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8

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
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F
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A
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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:

J
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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,

M
A
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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:

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.

V
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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
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9

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.

V
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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 . 21 Petitioner filed her reply. 22

In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-equal

branch of government, the Court did not issue a temporary restraining order directed against it.
However, this does not mean that the issues raised by the petition, as met by the respondents'
comments, will not be resolved in this case. The Court will not shirk from its duty as the final arbiter
of constitutional issues, in the same way that it did not in Mison.

As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was
extended by Her Excellency, the President a permanent appointment as Chairman of the
Commission on Human Rights on 17 December 1988. Before this date, she was merely the "Acting
Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an appointment that
was for the President solely to make, i.e., not an appointment to be submitted for review and
confirmation (or rejection) by the Commission on Appointments. This is in accordance with Sec. 16,
Art. VII of the 1987 Constitution and the doctrine in Mison which is here reiterated.

The threshold question that has really come to the fore is whether the President, subsequent to her
act of 17 December 1988, and after petitioner Bautista had qualified for the office to which she had
been appointed, by taking the oath of office and actually assuming and discharging the functions and
duties thereof, could extend another appointment to the petitioner on 14 January 1989, an "ad
interim appointment" as termed by the respondent Commission on Appointments or any other kind of
appointment to the same office of Chairman of the Commission on Human Rights that called for
confirmation by the Commission on Appointments.

The Court, with all due respect to both the Executive and Legislative Departments of government,
and after careful deliberation, is constrained to hold and rule in the negative. When Her Excellency,
the President converted petitioner Bautista's designation as Acting Chairman to a permanent
appointment as Chairman of the Commission on Human Rights on 17 December 1988, significantly
she advised Bautista (in the same appointment letter) that, by virtue of such appointment, she could
qualify and enter upon the performance of the duties of the office (of Chairman of the Commission
on Human Rights). All that remained for Bautista to do was to reject or accept the appointment.
Obviously, she accepted the appointment by taking her oath of office before the Chief Justice of the
Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the functions and
duties of the Chairman of the Commission on Human Rights. Bautista's appointment therefore on 17
December 1988 as Chairman of the Commission on Human Rights was a completed act on the part
of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of
Marbury vs. Madison. 23

xxx xxx xxx

The answer to this question seems an obvious one. The appointment being the sole
act of the President, must be completely evidenced, when it is shown that he has
done everything to be performed by him.

xxx xxx xxx

Some point of time must be taken when the power of the executive over an officer,
not removable at his will must cease. That point of time must be when the
constitutional power of appointment has been exercised. And this power has been
exercised when the last act, required from the person possessing the power, has
been performed. ....

xxx xxx xxx

But having once made the appointment, his (the President's) power over the office is
terminated in all cases, where by law the officer is not removable by him. The right to
the office is then in the person appointed, and he has the absolute, unconditional
power of accepting or rejecting it.

xxx xxx xxx

THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989

It is respondent Commission's submission that the President, after the appointment of 17 December
1988 extended to petitioner Bautista, decided to extend another appointment (14 January 1989) to
petitioner Bautista, this time, submitting such appointment (more accurately, nomination) to the
Commission on Appointments for confirmation. And yet, it seems obvious enough, both in logic and
in fact, that no new or further appointment could be made to a position already filled by a previously
completed appointment which had been accepted by the appointee, through a valid qualification and
assumption of its duties.

Respondent Commission vigorously contends that, granting that petitioner's appointment as

Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the
Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within the
president's prerogative to voluntarily submit such appointment to the Commission on Appointment
for confirmation. The mischief in this contention, as the Court perceives it, lies in the suggestion that
the President (with Congress agreeing) may, from time to time move power boundaries, in the
Constitution differently from where they are placed by the Constitution.
The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin with,
is concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the
Executive nor the Legislative (Commission on Appointments) can create power where the
Constitution confers none. The evident constitutional intent is to strike a careful and delicate
balance, in the matter of appointments to public office, between the President and Congress (the
latter acting through the Commission on Appointments). To tilt one side or the other of the scale is to
disrupt or alter such balance of power. In other words, to the extent that the Constitution has blocked
off certain appointments for the President to make with the participation of the Commission on
Appointments, so also has the Constitution mandated that the President can confer no power of
participation in the Commission on Appointments over other appointments exclusively reserved for
her by the Constitution. The exercise of political options that finds no support in the Constitution
cannot be sustained.

Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited
power to review presidential appointments, create power to confirm appointments that the
Constitution has reserved to the President alone. Stated differently, when the appointment is one
that the Constitution mandates is for the President to make without the participation of the
Commission on Appointments, the executive's voluntary act of submitting such appointment to the
Commission on Appointments and the latter's act of confirming or rejecting the same, are done
without or in excess of jurisdiction.

EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON

APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS
TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT COULD BE MADE
ON 14 JANUARY 1989

Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily allow the
Commission on Appointments to exercise the power of review over an appointment otherwise solely
vested by the Constitution in the President. Yet, as already noted, when the President appointed
petitioner Bautista on 17 December 1988 to the position of Chairman of the Commission on Human
Rights with the advice to her that by virtue of such appointment (not, until confirmed by the
Commission on Appointments), she could qualify and enter upon the performance of her duties after
taking her oath of office, the presidential act of appointment to the subject position which, under the
Constitution, is to be made, in the first place, without the participation of the Commission on
Appointments, was then and there a complete and finished act, which, upon the acceptance by
Bautista, as shown by her taking of the oath of office and actual assumption of the duties of said
office, installed her, indubitably and unequivocally, as the lawful Chairman of the Commission on
Human Rights for a term of seven (7) years. There was thus no vacancy in the subject office on 14
January 1989 to which an appointment could be validly made. In fact, there is no vacancy in said
office to this day.

Nor can respondents impressively contend that the new appointment or re-appointment on 14
January 1989 was an ad interim appointment, because, under the Constitutional design, ad
interim appointments do not apply to appointments solely for the President to make, i.e., without the
participation of the Commission on Appointments. Ad interim appointments, by their very nature
under the 1987 Constitution, extend only to appointments where the review of the Commission on
Appointments is needed. That is why ad interim appointments are to remain valid until disapproval
by the Commission on Appointments or until the next adjournment of Congress; but appointments
that are for the President solely to make, that is, without the participation of the Commission on
Appointments, can not be ad interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE
CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE
PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.

Respondent Mallillin contends that with or without confirmation by the Commission on Appointments,
petitioner Bautista, as Chairman of the Commission on Human Rights, can be removed from said
office at anytime, at the pleasure of the President; and that with the disapproval of Bautista's
appointment (nomination) by the Commission on Appointments, there was greater reason for her
removal by the President and her replacement with respondent Mallillin Thus, according to
respondent Mallillin the petition at bar has become moot and academic.

We do not agree that the petition has become moot and academic. To insist on such a posture is
akin to deluding oneself that day is night just because the drapes are drawn and the lights are on.
For, aside from the substantive questions of constitutional law raised by petitioner, the records
clearly show that petitioner came to this Court in timely manner and has not shown any indication of
abandoning her petition.

Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of
which is as follows:

WHEREAS, the Constitution does not prescribe the term of office of the Chairman
and Members of the Commission on Human Rights unlike those of other
Constitutional Commissions;

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do

hereby order:

SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby

amended to read as follows:

The Chairman and Members of the Commission on Human Rights shall be appointed
by the President. Their tenure in office shall be at the pleasure of the President.

SEC. 2. This Executive Order shall take effect immediately. DONE in the City of
Manila, this 30th day of June, in the year of Our Lord, nineteen hundred and eighty-
seven.

(
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By the President:

(Sgd.) JOKER P. ARROYO

Executive Secretary 24

Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25 was issued by
the President, Sec. 2(c) of which provides:

Sec. 2(c). The Chairman and the Members of the Commission on Human Rights
shall be appointed by the President for a term of seven years without reappointment.
Appointments to any vacancy shall be only for the unexpired term of the
predecessor.

It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the
Chairman and Members of the Commission on Human Rights — which is seven (7) years without
reappointment — the later executive order (163-A) speaks of the tenure in office of the Chairman
and Members of the Commission on Human Rights, which is "at the pleasure of the President."

Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice)
Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated:
 The distinction between "term" and "tenure" is important, for, pursuant to the
Constitution, "no officer or employee in the Civil Service may be removed or
suspended except for cause, as provided by law" (Art. XII, section 4), and this
fundamental principle would be defeated if Congress could legally make the tenure of
some officials dependent upon the pleasure of the President, by clothing the latter
with blanket authority to replace a public officer before the expiration of his term. 27

When Executive Order No. 163 was issued, the evident purpose was to comply with the
constitutional provision that "the term of office and other qualifications and disabilities of the
Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII,
1987 Constitution).

As the term of office of the Chairman (and Members) of the Commission on Human Rights, is seven
(7) years, without reappointment, as provided by Executive Order No. 163, and consistent with the
constitutional design to give the Commission the needed independence to perform and accomplish
its functions and duties, the tenure in office of said Chairman (and Members) cannot be later made
dependent on the pleasure of the President.

Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because the
power of the President, sustained therein, to replace a previously appointed vice-mayor of Roxas
City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas) stating that
the vice-mayor shall serve at the pleasure of the President, can find no application to the Chairman
of an INDEPENDENT OFFICE, created not by statute but by the Constitution itself. Besides, unlike
in the Alba case, here the Constitution has decreed that the Chairman and Members of the
Commission on Human Rights shall have a "term of office."

Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by
the Constitution to be independent as the Commission on Human Rights-and vested with the
delicate and vital functions of investigating violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be declared
unconstitutional.

The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its
constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point to its
being plainly at war with the constitutional intent of independence for the Commission. Thus —

MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this
body to be constitutionalized is the fact that regardless of who is the President or
who holds the executive power, the human rights issue is of such importance that it
should be safeguarded and it should be independent of political parties or powers
that are actually holding the reins of government. Our experience during the martial
law period made us realize how precious those rights are and, therefore, these must
be safeguarded at all times.

xxx xxx xxx

MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the
power of the Commission on Human Rights to be coterminous with the president,
because the President's power is such that if he appoints a certain commissioner and
that commissioner is subject to the President, therefore, any human rights violations
committed under the person's administration will be subject to presidential pressure.
That is what we would like to avoid — to make the protection of human rights go
beyond the fortunes of different political parties or administrations in power. 28

xxx xxx xxx

MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable
Chief Justice Concepcion and retired Justice J.B.L. Reyes and they believe that
there should be an independent Commission on Human Rights free from executive
influence because many of the irregularities on human rights violations are
committed by members of the armed forces and members of the executive branch of
the government. So as to insulate this body from political interference, there is a
need to constitutionalize it. 29

xxx xxx xxx

MR. SARMIENTO: On the inquiry on whether there is a need for this to be

constitutionalized, I would refer to a previous inquiry that there is still a need for
making this a constitutional body free or insulated from interference. I conferred with
former Chief Justice Concepcion and the acting chairman of the Presidential
Committee on Human Rights, retired Justice J.B.L. Reyes, and they are one in
saying that this body should be constitutionalized so that it will be free from executive
control or interferences, since many of the abuses are committed by the members of
the military or the armed forces. 30

xxx xxx xxx

MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we
leave it to Congress, this commission will be within the reach of politicians and of
public officers and that to me is dangerous. We should insulate this body from
political control and political interference because of the nature of its functions to
investigate all forms of human rights violations which are principally committed by
members of the military, by the Armed Forces of the Philippines. 31

xxx xxx xxx

MR. GARCIA. The critical factor here is political control, and normally, when a body
is appointed by Presidents who may change, the commission must remain above
these changes in political control. Secondly, the other important factor to consider
are the armed forces, the police forces which have tremendous power at their
command and, therefore, we would need a commission composed of men who also
are beyond the reach of these forces and the changes in political administration. 32

xxx xxx xxx

MR MONSOD. Yes, It is the committee's position that this proposed special body, in
order to function effectively, must be invested with an independence that is
necessary not only for its credibility but also for the effectiveness of its work.
However, we want to make a distinction in this Constitution. May be what happened
was that it was referred to the wrong committee. In the opinion of the committee, this
 need not be a commission that is similar to the three constitutional commissions like
the COA, the COMELEC, and the Civil Service. It need not be in that article. 33

xxx xxx xxx

MR. COLAYCO. The Commissioners earlier objection was that the Office of the
President is not involved in the project. How sure are we that the next President of
the Philippines will be somebody we can trust? Remember, even now there is a
growing concern about some of the bodies, agencies and commission created by
President Aquino. 34

xxx xxx xxx

.... Leaving to Congress the creation of the Commission on Human Rights is giving
less importance to a truly fundamental need to set up a body that will effectively
enforce the rules designed to uphold human rights. 35

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE

To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of Chairman
of the Commission on Human Rights by virtue of her appointment, as such, by the President on 17
December 1988, and her acceptance thereof, is not to say that she cannot be removed from office
before the expiration of her seven (7) year term. She certainly can be removed but her removal must
be for cause and with her right to due process properly safeguarded. In the case of NASECO vs.
NLRC, 36 this Court held that before a rank-and-file employee of the NASECO, a government-owned
corporation, could be dismissed, she was entitled to a hearing and due process. How much more, in
the case of the Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the
Commission on Human Rights.

If there are charges against Bautista for misfeasance or malfeasance in office, charges may be filed
against her with the Ombudsman. If he finds a prima facie case against her, the corresponding
information or informations can be filed with the Sandiganbayan which may in turn order her
suspension from office while the case or cases against her are pending before said court. 37 This is
due process in action. This is the way of a government of laws and not of men.

A FINAL WORD

It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had
elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for the
Commission on Human Rights (pending decision in this case) instead of appointing another
permanent Chairman. The latter course would have added only more legal difficulties to an already
difficult situation.

WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the duly
appointed Chairman of the Commission on Human Rights and the lawful incumbent thereof, entitled
to all the benefits, privileges and emoluments of said office. The temporary restraining order
heretofore issued by the Court against respondent Mallillin enjoining him from dismissing or
terminating personnel of the Commission on Human Rights is made permanent.

SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes and Regalado, JJ., concur.

Fernan, C.J., took no part, having administered petitioner's oath of office.

Sarmiento, J., took no part, respondent Mallillin is my godson.

Separate Opinions

GUTIERREZ, JR., J.: Dissenting Opinion

With all due respect for the contrary view of the majority in the Court, I maintain that it is asking too
much to expect a constitutional ruling which results in absurd or irrational consequences to ever
become settled.

The President and Congress, the appointees concerned, and the general public may in time accept
the Sarmiento III v. Mison ruling because this Court has the final word on what constitutional
provisions are supposed to mean but the incongruity will remain sticking out like a sore thumb.
Serious students of the Constitution will continue to be disturbed until the meaning of the consent
power of the Commission on Appointments is straightened out either through a re-examination of
this Court's decision or an amendment to the Constitution.

Section 16, Article VII of the Constitution consists of only three sentences. The officers specified in
the first sentence clearly require confirmation by the Commission on Appointments. The officers
mentioned in the third sentence just as clearly do not require confirmation. The problem area lies
with those in the second sentence.

I submit that we should re-examine the three groups of presidential appointees under the three
sentences of Section 16.

The first group are the heads of executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from colonel or naval captain, and other officers whose
appointments are vested in the President by the Constitution. The first sentence of Section 16 state
they must be confirmed by the Commission on Appointments.

The third group are officers lower in rank whose appointments Congress has by law vested in the
President alone. They need no confirmation.

The second group of presidential appointees are "all other officers of the Government whose
appointments are not otherwise provided for by law and those whom he may be authorized by law to
appoint." To which group do they belong?-Group I requiring confirmation or Group 3 where
confirmation is not needed?

No matter how often and how long I read the second sentence of Section 16, I simply cannot
associate the officers mentioned therein as forming part of those referred to in the third sentence.
Why am I constrained to hold this view?

(1) If the officers in the first group are the only appointees who need confirmation, there would be no
need for the second and third sentences of Section 16. They become superfluous. Any one not
falling under an express listing would need no confirmation. I think the Court is wrong in treating two
carefully crafted and significant provisions of the fundamental law as superfluities. Except for the
most compelling reasons, which do not exist here, no constitutional provision should be considered a
useless surplusage.

(2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority view
results in the absurd consequence where one of several hundred colonels and naval captains must
be confirmed but such important officers as the Governor of the Central Bank with broad powers
over the nation's economy and future stability or the Chairman of the Commission on Human Rights
whose office calls for no less than a constitutional mandate do not have to be scrutinized by the
Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the thorough
scrutiny during the confirmation process while the Undersecretary of Foreign Affairs who sends him
there and who exercises control over his acts can be appointed by the President alone? Why should
we interpret Section 16 in such a strange and irrational manner when no strained construction is
needed to give it a logical and more traditional and understandable meaning.?

(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we see the
word "also" in a sentence, we associate it with preceding sentences, never with the different
sentence that follows. On the other hand, the third sentence specifies "other officers lower in rank'
who are appointed pursuant to law by the President "alone." This can only mean that the higher
ranking officers in the second sentence must also be appointed with the concurrence of the
Commission on Appointments. When the Constitution requires Congress to specify who may be
appointed by the President alone, we should not add other and higher ranking officers as also
appointed by her alone. The strained interpretation by the Court's majority makes the word "alone"
meaningless if the officers to whom "alone" is not appended are also included in the third group.

(4) The third sentence of Section 16 requires a positive act of Congress which vests an appointment
in the President alone before such an appointment is freed from the scrutiny of the Commission on
Appointments. By express constitutional mandate, it is Congress which determines who do not need
confirmation. Under the majority ruling of the Court, if Congress creates an important office and
requires the consent of the Commission before a presidential appointment to that office is perfected,
such a requirement would be unconstitutional. I believe that the Constitution was never intended to
so restrict the lawmaking power. The Court has no jurisdiction to limit the plenary lawmaking power
of the people's elected representatives through an implied and, I must again add, a strained reading
of the plain text of Section 16. Any restriction of legislative power must be categorical, express, and
specific-never implied or forced.

(5) The Constitution specifies clearly the presidential appointees who do not need confirmation by
the Commission. The reason for non-confirmation is obvious. The members of the Supreme Court
and all lower courts and the Ombudsman and his deputies are not confirmed because the Judicial
and Bar Council screens nominees before their names are forwarded to the President. The Vice-
President as a cabinet member needs no confirmation because the Constitution says so. He or she
is chosen by the nation's entire electorate and is only a breath away from the Presidency. Those
falling under the third sentence of Section 16, Article VII do not have to be confirmed because the
Constitution gives Congress the authority to free lower ranking officials whose positions are created
by law from that requirement. I believe that we in the Court have no power to add by implication to
the list of presidential appointees whom the Constitution in clear and categorical words declares as
not needing confirmation.
(6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is an
important constitutional body which helps give fuller expression to the democratic principles inherent
in our presidential form of government.

There are those who would render innocuous the Commission's power or perhaps even move for its
abolition as a protest against what they believe is too much horsetrading or sectarian politics in the
exercise of its functions. Since the President is a genuinely liked and popular leader, personally
untouched by scandal, who appears to be motivated only by the sincerest of intentions, these people
would want the Commission to routinely rubberstamp those whom she appoints to high office.

Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another
interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely, Section 16
was intended to check abuse or ill-considered appointments by a President who belongs to the latter
class.

It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly
represents the people. We should not expect Congress to act only as the selfless Idealists, the well-
meaning technocrats, the philosophers, and the coffee-shop pundits would have it move. The
masses of our people are poor and underprivileged, without the resources or the time to get publicly
involved in the intricate workings of Government, and often ill-informed or functionally illiterate.
These masses together with the propertied gentry and the elite class can express their divergent
views only through their Senators and Congressmen. Even the buffoons and retardates deserve to
have their interests considered and aired by the people's representatives. In the democracy we have
and which we try to improve upon, the Commission on Appointments cannot be expected to function
like a mindless machine without any debates or even imperfections. The discussions and
wranglings, the delays and posturing are part of the democratic process. They should never be used
as arguments to restrict legislative power where the Constitution does not expressly provide for such
a limitation.

The Commission on Human Rights is a very important office. Our country is beset by widespread
insurgency, marked inequity in the ownership and enjoyment of wealth and political power, and
dangerous conflicts arising from Ideological, ethnic and religious differences. The tendency to use
force and violent means against those who hold opposite views appears irresistible to the holders of
both governmental and rebel firepower.

The President is doubly careful in the choice of the Chairman and Members of the Commission on
Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the appointments to be
a joint responsibility of the Presidency and Congress, through the Commission on Appointments.
She wants a more thorough screening process for these sensitive positions. She wants only the best
to survive the process.

Why should we tell both the President and Congress that they are wrong.?

Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel
concentrations should receive greater scrutiny in his appointment than the Chairman of the Human
Rights Commission who has infinitely more power and opportunity to bring the rebellion to a just and
satisfactory end.

But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the Chairman of
the Human Rights Commission as one of the "other officers whose appointments are vested in him
in this Constitution" under the first sentence of Section 16, Article VII. Certainly, the chairman cannot
be appointed by Congress or the Supreme Court. Neither should we read Article XIII of the
Constitution as classifying the chairman among the lower ranking officers who by law may be
appointed by the head of an executive department, agency, commission, or board. The Constitution
created the independent office. The President was intended to appoint its chairman.

I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in the call
for a re-examination of its doctrine.

CRUZ, J., dissenting:

This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adopted by
the Court more than a year ago over two dissents. The President of the Philippines has taken a
second look at it, and so too has the Commission on Appointments representing both Houses of the
Congress of the Philippines. It appears that they are not exactly certain now that the decision in that
case was correct after all. I believe it will not be amiss for us too, in a spirit of humility, to read the
Constitution again on the possibility that we may have misread it before.

The ponencia assumes that we were right the first time and that the Mison case is settled — there is
no need to re-examine it. It therefore approaches the problem at hand from another perspective and
would sustain the petitioner on an additional ground.

The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not
confirmed, conformably to Mison, and could not be replaced with the second appointment on 14
January 1989 because there was no vacancy to fill. By this reasoning, the opinion would definitely
avoid the question squarely presented to the Court, viz., whether or not the Chairman of the
Commission on Human Rights is subject to confirmation as required now by both the President of
the Philippines and the Commission on Appointments. In effect, we are asked to reconsider the
Mison ruling in the light of this supervening significant albeit decidedly not controlling circumstance.

The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think we must
address the legal question frontally instead of falling back on a legal sleight-of hand of now-you-see-
it-now-you-don't.

As one who never agreed with the bison ruling in the first place, I suspect that the seeming
diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over its
correctness. I think this is the reason another justification had to be offered to bolster Mison.

In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human Rights
as among the important officers who would not have to be confirmed if the majority view were to be
followed. By contrast, and inexplicably, the colonel in the armed forces would need confirmation
although he is not a constitutional officer with the serious responsibilities of the former. Also not to be
confirmed are the Governor of the Central Bank unlike the relatively minor multisectoral
representative of the regional consultative commission, and the Undersecretary of Foreign Affairs
although the consul, who is his subordinate, would need confirmation. When I pointed to these
incongruous situations, I was told it was not our place to question the wisdom of the Constitution.
What I was questioning was not the wisdom of the Constitution but the wisdom of our interpretation
which I said would lead to absurd consequences. But only Justice Gutierrez agreed with me.

Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our own
ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a
circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.
As I see it, the submission of the petitioner's appointment to the Commission on Appointments is a
clear indication that the President of the Philippines no longer agrees with the Mison, ruling, at least
insofar as it applies to the present case. Signifi cantly the Commission on Appointments, which was
also aware of Mison, has as clearly rejected it by acting on the appointment. These meaningful
developments must give us pause. We may have committed an error in Mison, which is bad enough,
and may be persisting in it now, which is worse.

Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent with my
view in Mison, I submit that what President Aquino extended to the petitioner on 17 December 1988
was an ad interim appointment that although immediately effective upon acceptance was still subject
to confirmation. I cannot agree that when the President said the petitioner could and enter into the
performance of her duties, "all that remained for Bautista to do was to reject or accept the
appointment." In fact, on the very day it was extended, the ad interim appointment was submitted by
the President of the Philippines to the Commission on Appointments "for confirmation."

The ponencia says that the appointment did not need any confirmation, being the sole act of the
President under the Mison ruling. That would have settled the question quite conclusively, but the
opinion goes on to argue another justification that I for one find unnecessary, not to say untenable. I
sense here a palpable effort to bolster Mison because of the apprehension that it is falling apart.

Of course, there was no vacancy when the nomination was made on 14 January 1989. There is no
question that the petitioner was still validly holding the office by virtue of her ad interim appointment
thereto on 17 December 1988. The nomination made later was unnecessary because the ad
interim appointment was still effective. When the Commission on Appointments sent the petitioner
the letters dated 9 January 1989 and 10 January 1989 requiring her to submit certain data and
inviting her to appear before it, it was acting not on the nomination but on the ad interimappointment.
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.

GRIÑO-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 the constitutional officers, meaning those who hold offices created under the Constitution, and
whose appointments are not otherwise provided for in the Charter. Those constitutional officers are
the chairmen and members of the Constitutional Commissions, namely: the Civil Service
Commission (Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IX-
D), and the Commission on Human Rights (Sec. 17, XIII). These constitutional commissions are,
without excaption, declared to be "independent," but while in the case of the Civil Service
Commission, the Commission on Elections and the Commission on Audit, the 1987 Constitution
expressly provides that "the Chairman and the Commissioners shall be appointed by the President
with the consent of the Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX - C and
Sec. 1[2], Art. IX-D), no such clause is found in Section 17, Article VIII creating the Commission on
Human Rights. Its absence, however, does not detract from, or diminish, the President's power to
appoint the Chairman and Commissioners of the said Commission. The source of that power is the
first sentence of Section 16, Article VII of the Constitution for:

(1) the Commission on Human Rights is an office created by the Constitution, and

(2) the appointment of the Chairman and Commissioners thereof is vested in the President by the
Constitution.

Therefore, the said appointments shall be made by the President with the consent of the
Commission on Appointments, as provided in Section 16, Article VII of the Constitution.

It is not quite correct to argue, as the petitioner does, that the power of the Commission on
Appointments to review and confirm appointments made by the President is a "derogation of the
Chief Executive's appointing power." That power is given to the Commission on Appointments as
part of the system of checks and balances in the democratic form of government provided for in our
Constitution. As stated by a respected constitutional authority, former U.P. Law Dean and President
Vicente G. Sinco:

The function of confirming appointments is part of the power of appointment itself. It

is, therefore, executive rather than legislative in nature. In giving this power to an
organ of the legislative department, the Constitution merely provides a detail in the
scheme of checks and balances between the executive and legislative organs of the
government. (Phil. Political Law by Sinco, 11th ed., p. 266).

WHEREFORE, I vote to dismiss the petition.

Medialdea, J., dissenting:

Separate Opinions

GUTIERREZ, JR., J.: Dissenting Opinion

With all due respect for the contrary view of the majority in the Court, I maintain that it is asking too
much to expect a constitutional ruling which results in absurd or irrational consequences to ever
become settled.

The President and Congress, the appointees concerned, and the general public may in time accept
the Sarmiento III v. Mison ruling because this Court has the final word on what constitutional
provisions are supposed to mean but the incongruity will remain sticking out like a sore thumb.
Serious students of the Constitution will continue to be disturbed until the meaning of the consent
power of the Commission on Appointments is straightened out either through a re-examination of
this Court's decision or an amendment to the Constitution.

Section 16, Article VII of the Constitution consists of only three sentences. The officers specified in
the first sentence clearly require confirmation by the Commission on Appointments. The officers
mentioned in the third sentence just as clearly do not require confirmation. The problem area lies
with those in the second sentence.

I submit that we should re-examine the three groups of presidential appointees under the three
sentences of Section 16.

The first group are the heads of executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from colonel or naval captain, and other officers whose
appointments are vested in the President by the Constitution. The first sentence of Section 16 state
they must be confirmed by the Commission on Appointments.

The third group are officers lower in rank whose appointments Congress has by law vested in the
President alone. They need no confirmation.

The second group of presidential appointees are "all other officers of the Government whose
appointments are not otherwise provided for by law and those whom he may be authorized by law to
appoint." To which group do they belong?-Group I requiring confirmation or Group 3 where
confirmation is not needed?

No matter how often and how long I read the second sentence of Section 16, I simply cannot
associate the officers mentioned therein as forming part of those referred to in the third sentence.

Why am I constrained to hold this view?

(1) If the officers in the first group are the only appointees who need confirmation, there would be no
need for the second and third sentences of Section 16. They become superfluous. Any one not
falling under an express listing would need no confirmation. I think the Court is wrong in treating two
carefully crafted and significant provisions of the fundamental law as superfluities. Except for the
most compelling reasons, which do not exist here, no constitutional provision should be considered a
useless surplusage.

(2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority view
results in the absurd consequence where one of several hundred colonels and naval captains must
be confirmed but such important officers as the Governor of the Central Bank with broad powers
over the nation's economy and future stability or the Chairman of the Commission on Human Rights
whose office calls for no less than a constitutional mandate do not have to be scrutinized by the
Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the thorough
scrutiny during the confirmation process while the Undersecretary of Foreign Affairs who sends him
there and who exercises control over his acts can be appointed by the President alone? Why should
we interpret Section 16 in such a strange and irrational manner when no strained construction is
needed to give it a logical and more traditional and understandable meaning.?

(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we see the
word "also" in a sentence, we associate it with preceding sentences, never with the different
sentence that follows. On the other hand, the third sentence specifies "other officers lower in rank'
who are appointed pursuant to law by the President "alone." This can only mean that the higher
ranking officers in the second sentence must also be appointed with the concurrence of the
Commission on Appointments. When the Constitution requires Congress to specify who may be
appointed by the President alone, we should not add other and higher ranking officers as also
appointed by her alone. The strained interpretation by the Court's majority makes the word "alone"
meaningless if the officers to whom "alone" is not appended are also included in the third group.

(4) The third sentence of Section 16 requires a positive act of Congress which vests an appointment
in the President alone before such an appointment is freed from the scrutiny of the Commission on
Appointments. By express constitutional mandate, it is Congress which determines who do not need
confirmation. Under the majority ruling of the Court, if Congress creates an important office and
requires the consent of the Commission before a presidential appointment to that office is perfected,
such a requirement would be unconstitutional. I believe that the Constitution was never intended to
so restrict the lawmaking power. The Court has no jurisdiction to limit the plenary lawmaking power
of the people's elected representatives through an implied and, I must again add, a strained reading
of the plain text of Section 16. Any restriction of legislative power must be categorical, express, and
specific-never implied or forced.

(5) The Constitution specifies clearly the presidential appointees who do not need confirmation by
the Commission. The reason for non-confirmation is obvious. The members of the Supreme Court
and all lower courts and the Ombudsman and his deputies are not confirmed because the Judicial
and Bar Council screens nominees before their names are forwarded to the President. The Vice-
President as a cabinet member needs no confirmation because the Constitution says so. He or she
is chosen by the nation's entire electorate and is only a breath away from the Presidency. Those
falling under the third sentence of Section 16, Article VII do not have to be confirmed because the
Constitution gives Congress the authority to free lower ranking officials whose positions are created
by law from that requirement. I believe that we in the Court have no power to add by implication to
the list of presidential appointees whom the Constitution in clear and categorical words declares as
not needing confirmation.

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

important constitutional body which helps give fuller expression to the democratic principles inherent
in our presidential form of government.

There are those who would render innocuous the Commission's power or perhaps even move for its
abolition as a protest against what they believe is too much horsetrading or sectarian politics in the
exercise of its functions. Since the President is a genuinely liked and popular leader, personally
untouched by scandal, who appears to be motivated only by the sincerest of intentions, these people
would want the Commission to routinely rubberstamp those whom she appoints to high office.

Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another
interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely, Section 16
was intended to check abuse or ill-considered appointments by a President who belongs to the latter
class.
It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly
represents the people. We should not expect Congress to act only as the selfless Idealists, the well-
meaning technocrats, the philosophers, and the coffee-shop pundits would have it move. The
masses of our people are poor and underprivileged, without the resources or the time to get publicly
involved in the intricate workings of Government, and often ill-informed or functionally illiterate.
These masses together with the propertied gentry and the elite class can express their divergent
views only through their Senators and Congressmen. Even the buffoons and retardates deserve to
have their interests considered and aired by the people's representatives. In the democracy we have
and which we try to improve upon, the Commission on Appointments cannot be expected to function
like a mindless machine without any debates or even imperfections. The discussions and
wranglings, the delays and posturing are part of the democratic process. They should never be used
as arguments to restrict legislative power where the Constitution does not expressly provide for such
a limitation.

The Commission on Human Rights is a very important office. Our country is beset by widespread
insurgency, marked inequity in the ownership and enjoyment of wealth and political power, and
dangerous conflicts arising from Ideological, ethnic and religious differences. The tendency to use
force and violent means against those who hold opposite views appears irresistible to the holders of
both governmental and rebel firepower.

The President is doubly careful in the choice of the Chairman and Members of the Commission on
Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the appointments to be
a joint responsibility of the Presidency and Congress, through the Commission on Appointments.
She wants a more thorough screening process for these sensitive positions. She wants only the best
to survive the process.

Why should we tell both the President and Congress that they are wrong.?

Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel
concentrations should receive greater scrutiny in his appointment than the Chairman of the Human
Rights Commission who has infinitely more power and opportunity to bring the rebellion to a just and
satisfactory end.

But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the Chairman of
the Human Rights Commission as one of the "other officers whose appointments are vested in him
in this Constitution" under the first sentence of Section 16, Article VII. Certainly, the chairman cannot
be appointed by Congress or the Supreme Court. Neither should we read Article XIII of the
Constitution as classifying the chairman among the lower ranking officers who by law may be
appointed by the head of an executive department, agency, commission, or board. The Constitution
created the independent office. The President was intended to appoint its chairman.

I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in the call
for a re-examination of its doctrine.

CRUZ, J., dissenting:

This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adopted by
the Court more than a year ago over two dissents. The President of the Philippines has taken a
second look at it, and so too has the Commission on Appointments representing both Houses of the
Congress of the Philippines. It appears that they are not exactly certain now that the decision in that
case was correct after all. I believe it will not be amiss for us too, in a spirit of humility, to read the
Constitution again on the possibility that we may have misread it before.
The ponencia assumes that we were right the first time and that the Mison case is settled—there is
no need to re-examine it. It therefore approaches the problem at hand from another perspective and
would sustain the petitioner on an additional ground.

The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not
confirmed, conformably to Mison, and could not be replaced with the second appointment on 14
January 1989 because there was no vacancy to fill. By this reasoning, the opinion would definitely
avoid the question squarely presented to the Court, viz., whether or not the Chairman of the
Commission on Human Rights is subject to confirmation as required now by both the President of
the Philippines and the Commission on Appointments. In effect, we are asked to reconsider the
Mison ruling in the light of this supervening significant albeit decidedly not controlling circumstance.

The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think we must
address the legal question frontally instead of falling back on a legal sleight-of hand of now-you-see-
it-now-you-don't.

As one who never agreed with the bison ruling in the first place, I suspect that the seeming
diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over its
correctness. I think this is the reason another justification had to be offered to bolster Mison.

In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human Rights
as among the important officers who would not have to be confirmed if the majority view were to be
followed. By contrast, and inexplicably, the colonel in the armed forces would need confirmation
although he is not a constitutional officer with the serious responsibilities of the former. Also not to be
confirmed are the Governor of the Central Bank unlike the relatively minor multisectoral
representative of the regional consultative commission, and the Undersecretary of Foreign Affairs
although the consul, who is his subordinate, would need confirmation. When I pointed to these
incongruous situations, I was told it was not our place to question the wisdom of the Constitution.
What I was questioning was not the wisdom of the Constitution but the wisdom of our interpretation
which I said would lead to absurd consequences. But only Justice Gutierrez agreed with me.

Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our own
ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a
circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.

As I see it, the submission of the petitioner's appointment to the Commission on Appointments is a
clear indication that the President of the Philippines no longer agrees with the Mison, ruling, at least
insofar as it applies to the present case. Signifi cantly the Commission on Appointments, which was
also aware of Mison, has as clearly rejected it by acting on the appointment. These meaningful
developments must give us pause. We may have committed an error in Mison, which is bad enough,
and may be persisting in it now, which is worse.

Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent with my
view in Mison, I submit that what President Aquino extended to the petitioner on 17 December 1988
was an ad interim appointment that although immediately effective upon acceptance was still subject
to confirmation. I cannot agree that when the President said the petitioner could and enter into the
performance of her duties, "all that remained for Bautista to do was to reject or accept the
appointment." In fact, on the very day it was extended, the ad interim appointment was submitted by
the President of the Philippines to the Commission on Appointments "for confirmation."

The ponencia says that the appointment did not need any confirmation, being the sole act of the
President under the Mison ruling. That would have settled the question quite conclusively, but the
opinion goes on to argue another justification that I for one find unnecessary, not to say untenable. I
sense here a palpable effort to bolster Mison because of the apprehension that it is falling apart.

Of course, there was no vacancy when the nomination was made on 14 January 1989. There is no
question that the petitioner was still validly holding the office by virtue of her ad interim appointment
thereto on 17 December 1988. The nomination made later was unnecessary because the ad
interim appointment was still effective. When the Commission on Appointments sent the petitioner
the letters dated 9 January 1989 and 10 January 1989 requiring her to submit certain data and
inviting her to appear before it, it was acting not on the nomination but on the ad interimappointment.
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.

GRIÑO-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 the constitutional officers, meaning those who hold offices created under the Constitution, and
whose appointments are not otherwise provided for in the Charter. Those constitutional officers are
the chairmen and members of the Constitutional Commissions, namely: the Civil Service
Commission (Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IX-
D), and the Commission on Human Rights (Sec. 17, XIII). These constitutional commissions are,
without excaption, declared to be "independent," but while in the case of the Civil Service
Commission, the Commission on Elections and the Commission on Audit, the 1987 Constitution
expressly provides that "the Chairman and the Commissioners shall be appointed by the President
with the consent of the Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX - C and
Sec. 1[2], Art. IX-D), no such clause is found in Section 17, Article VIII creating the Commission on
Human Rights. Its absence, however, does not detract from, or diminish, the President's power to
appoint the Chairman and Commissioners of the said Commission. The source of that power is the
first sentence of Section 16, Article VII of the Constitution for:
(1) the Commission on Human Rights is an office created by the Constitution, and

(2) the appointment of the Chairman and Commissioners thereof is vested in the President by the
Constitution.

Therefore, the said appointments shall be made by the President with the consent of the
Commission on Appointments, as provided in Section 16, Article VII of the Constitution.

It is not quite correct to argue, as the petitioner does, that the power of the Commission on
Appointments to review and confirm appointments made by the President is a "derogation of the
Chief Executive's appointing power." That power is given to the Commission on Appointments as
part of the system of checks and balances in the democratic form of government provided for in our
Constitution. As stated by a respected constitutional authority, former U.P. Law Dean and President
Vicente G. Sinco:

The function of confirming appointments is part of the power of appointment itself. It

is, therefore, executive rather than legislative in nature. In giving this power to an
organ of the legislative department, the Constitution merely provides a detail in the
scheme of checks and balances between the executive and legislative organs of the
government. (Phil. Political Law by Sinco, 11th ed., p. 266).

WHEREFORE, I vote to dismiss the petition.

Medialdea, J., dissenting:

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 83216 September 4, 1989

TERESITA QUINTOS-DELES, GLORIA T. ARAGON (M.D.), LOURDES V. MASTURA, TRINIDAD

A. GOMEZ, ADUL DE LEON, JOSEFINA AZARCON-DELA CRUZ, TRINIDAD M. DOMINGO,
MARIA MAYET T. LEDANO, LOLIT ANTONIO, ET AL., petitioners,
vs.
THE COMMISSION ON CONSTITUTIONAL COMMISSIONS, AND OFFICES (C.A.),
COMMISSION ON APPOINTMENTS, THE SECRETARY GENERAL OF THE HOUSE OF
REPRESENTATIVES, THE CHIEF ACCOUNTANT OF THE HOUSE OF REPRESENTATIVES, ET
AL., respondents.

BIDIN, J.:

This is a special civil action for prohibition and mandamus with injunction seeking to compel
respondent Commission on Appointments to allow petitioner Teresita Quintos-Deles to perform and
discharge her duties as a member of the House of Representatives representing the Women's
Sector and to restrain respondents from subjecting petitioner's appointment to the confirmation
process.

The antecedent facts which gave rise to this petition are as follows:

On April 6, 1988, petitioner and three others were appointed Sectoral Representatives by the
President pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7 of the
Constitution. Executive Secretary Catalino Macaraig, Jr. transmitted by letter, also dated April
6,1988 (Annex L) the appointment of the said sectoral representatives to Speaker Ramon Mitra, Jr.
as follows:

April 6, 1988

Hon. Ramon V. Mitra, Jr.

Speaker, House of Representatives
Quezon City

S i r:

Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of the Constitution, the
President has appointed the following persons to the seats reserved for sectoral representatives in
paragraph (1), Section 5 of Article VI of the Constitution:

1. Teresita Quintos-Deles —-Women

2. Al Ignatius G. Lopez —Youth

3. Bartolome Arteche —-Peasant

4. Rey Magno Teves —-Urban Poor

Copies of their appointments are enclosed.

With best wishes.

Very truly yours,

(SGD.) CATALINO MACARAIG JR

Executive Secretary

On April 18, 1988, the above-mentioned sectoral representatives were scheduled to take their oaths
before Speaker Ramon V. Mitra, Jr. at the Session Hall of Congress after the Order of Business.
However, petitioner and the three other sectoral representatives- appointees were not able to take
their oaths and discharge their duties as members of Congress due to the opposition of some
congressmen-members of the Commission on Appointments, who insisted that sectoral
representatives must first be confirmed by the respondent Commission before they could take their
oaths and/or assume office as members of the House of Representatives. This opposition compelled
Speaker Ramon V. Mitra, Jr. to suspend the oath-taking of the four sectoral representatives.

In view of this development, Executive Secretary Catalino Macaraig, Jr. transmitted on April
25,1988, a letter dated April 11, 1988 of the President addressed to the Commission on
Appointments submitting for confirmation the appointments of the four sectoral representatives as
follows:

l1 April 1988

The Honorable
Jovito R. Salonga
The Senate President and
The Members of the Commission
on Appointments
Congress of the Philippines
Manila

Gentlemen:

Pursuant to Article VII, Section 16, paragraph 2, and Article XVIII, Section 7, of the Constitution, I
hereby submit, for confirmation, the appointments of the following persons as Members of the House
of Representatives representing the sectors indicated opposite their respective names:

TERESITA QUINTOS-DELES — Women

AL IGNATIUS G. LOPEZ — Youth

BARTOLOME ARTECHE — Peasant

REY MAGNO TEVES — Urban Poor

An early confirmation of their appointments will be appreciated.

Very truly yours,

(Sgd) Corazon C. Aquino

Meanwhile, petitioner in a letter dated April 22, 1988 addressed to Speaker Ramon V. Mitra, Jr.
(Annex V) appealed to the House of Representatives alleging, among others, that since 41 no
attempt was made to subject the sectoral representatives* already sitting to the confirmation
process, there is no necessity for such confirmation and subjection thereto of the present batch
would certainly be discriminatory."

In reply, Speaker Mitra in a letter dated May 2, 1988 (Annex BB) informed petitioner that since
"President Corazon C. Aquino has submitted your appointment to the Commission on Appointments
for confirmation in a letter dated April 11, 1988, . . . the Commission on Appointments now has sole
jurisdiction over the matter."

On May 10, 1988, petitioner Deles received an invitation dated May 6, 1988 to attend a Commission
on Appointments Committee Meeting scheduled for May 12, 1988 for the deliberation of her
appointment as sectoral representative for women (Annex DD). Petitioner sent a reply dated May 11,
1988 explaining her position and questioning the jurisdiction of the Commission on Appointments
over the appointment of sectoral representatives (Annex EE).

In the May 12,1988 meeting of the Committee of the Constitutional Commissions and Offices of the
Commission on Appointments, chaired by Sen. Edgardo J. Angara, the Committee ruled against the
position of petitioner Deles.

Hence, this petition for prohibition and mandamus praying that respondent Commission on
Appointments be enjoined from subjecting to confirmation process the petitioner's appointment as
sectoral representative for the women's sector and as member of Congress.

Petitions in intervention were likewise filed by Estefania Aldaba Lim, et al. (Rollo, p. 147); Ma. Iris
Melizza, et al. (Rollo, p. 172); Margarita Gomez, et al. (Rollo, p. 186); Hernani Panganiban, et al.
(Rollo, p. 208); Presentacion Castro, et al. (Rollo, p. 215); Sr. Teresa Dagdag, et al. (Rollo, p. 251);
and Civil Liberties Union (Rollo, p. 274).

Petitioner Teresita Quintos-Deles contends that her appointment as Sectoral Representative for
Women by the President pursuant to Section 7, Article XVIII of the Constitution, does not require
confirmation by the Commission on Appointments to qualify her to take her seat in the House of
Representatives.

The opposite view is taken by the Solicitor General in his Statement of Position (In lieu of Comment),
dated July 15,1988 (Rollo, p. 206) in this wise: "In view of the President's submission d the four
sectoral representatives, the petitioner included, to the Commission on Appointments by letter dated
April 11, 1988, then confirmation by the Commission on Appointments is required."

On August 15, 1988, respondent Commission on Appointments, in addition to adopting the

Statement of Position (in lieu of Comment) submitted by the Solicitor General, likewise submitted its
own Statement of Position (In lieu of Comment) and further manifested that (1) the appointment of
petitioner Deles was not acted upon by the Commission on Appointments when Congress went into
recess as required by the Constitution; (2) the case of petitioner Deles for appointment as sectoral
representative to the House of Representatives has become moot and academic not having been
finally acted upon at the close of the session of Congress pursuant to See. 23 of the Rules of the
Commission (Rollo, pp. 233-234) which reads as follows:

Section 23. Suspension of Consideration of Nomination or Appointments to be

Returned to the President.- Nominations or appointments submitted by the President
of the Philippines which are not finally acted upon at the close of the session of
Congress shall be returned to the President, and unless resubmitted, shall not again
be considered by the Commission.

On January 31, 1989, the Court after noting the reply filed by the petitioner and the rejoinder filed by
respondents, resolved to give due course to the petition and the parties were required to submit their
respective memoranda (Rollo, p. 309). By way of manifestation and motion dated March 9, 1989
(Rollo, p. 311), the Office of the Solicitor General adopted its statement of position (in lieu of
comment) and rejoinder as its memorandum. Petitioners and intervenor Civil Liberties Union
submitted their memoranda on March 22, 1989 and March 30, 1989, respectively. A supplemental
statement of position (in lieu of memorandum) dated March 31, 1989 was filed by respondent
Commission.

The Constitution provides that the House of Representatives shall be composed of not more than
two hundred fifty (250) members, unless otherwise fixed by law, who shall be elected from the
legislative districts and those who as provided by law, shall be elected thru a party-list system. The
party-list representatives shall constitute 20% of the total number of representatives or fifty (50)
seats. One-half or twenty-five (25) of the seats allocated to party-list representatives is reserved for
sectoral representatives. The reservation is limited to three consecutive terms after ratification of the
1987 Constitution. Thus, Section 5 (1) and (2), Article VI of the 1987 Constitution provides:

SEC. 5. (1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional, and sectoral
parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party-list. For three consecutive
terms after the ratification of this Constitution, one-half of the seats allocated to party-
list representatives shall be filled, as provided by law, by selection or election from
the labor, peasant, urban poor, indigenous cultural communities, women, youth, and
such other sectors as may be provided by law, except the religious sector.

Under Section 7, Article XVIII of the Constitution, the appointment of sectoral representatives is
vested upon the President until otherwise provided by law, as follows:

SEC. 7. Until a law is passed, the President may fill by appointment from a list of
nominees by the respective sectors the seats reserved for sectoral representation in
paragraph (1), Section 5 of Article VI of this Constitution.

The issue is, whether the Constitution requires the appointment of sectoral representatives to the
House of Representatives to be confirmed by the Commission on Appointments. Section 16, Article
VII of the Constitution enumerates among others, the officers who may be appointed by the
President with the consent of the Commission on Appointments, as follows:

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

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

In Sarmiento vs. Mison, et al. (156 SCRA 549 [19871), we construed Section 16, Article VII of the
Constitution to mean that only appointments to offices mentioned in the first sentence of the said
Section 16, Article VII require confirmation by the Commission on Appointments, as follows:

It is readily apparent that under the provisions of the 1987 Constitution, just quoted,
there are four (4) groups of officers whom the President shall appoint. These four (4)
groups, to which we will hereafter refer from time to time, are:

First, the heads of the executive departments, ambassadors, other public ministers
and consuls officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise
provided for by law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in
the President alone.

The first group of officers is clearly appointed with the consent of the Commission on
Appointments. Appointments of such officers are initiated by nomination and, if the
nomination is confirmed by the Commission on Appointments, the President
appoints.

xxx xxx xxx

(T)he purposive intention and deliberate judgment of the framers of the 1987
Constitution (is) that, except as to those officers whose appointments require the
consent of the Commission on Appointments by express mandate of the first
sentence in Sec. 16, Art. VII, appointments of other officers are left to the President
without need of confirmation by the Commission on Appointments. This conclusion is
inevitable, if we are to presume, as we must, that the framers of the 1987
 Constitution were knowledgeable of what they were doing and of the foreseeable
effects thereof.

Besides, the power to appoint is fundamentally executive or presidential in character.

Limitations on or qualifications of such power should be strictly construed against
them. Such limitations or qualifications must be clearly stated in order to be
recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly
stated that appointments by the President to the positions therein enumerated
require the consent of the Commission on Appointments.

Our ruling in Mison was reiterated in the recent case of Mary Concepcion Bautista vs. Sen. Jovito
Salonga, et al. (G.R. No. 86439, promulgated on April 13, 1989) wherein the Court held:

The Mison case was the first major case under the 1987 Constitution and in
constructing Sec. 16, Art. VII of the 1987 Constitution, ... this Court, drawing
extensively from the proceedings of the 1986 Constitutional Commission and the
country's experience under the 1935 and 1973 Constitutions, held that only those
appointments expressly mentioned in the first sentence of See. 16, Art. VII are to be
reviewed by the Commission on Appointments, namely, 'the heads of the executive
departments, ambassadors, other public ministers and consuls or officers of the
armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution.' All other appointments by the
President are to be made without the participation of the Commission on
Appointments.

Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be filled
by appointment by the President by express provision of Section 7, Art. XVIII of the Constitution, it is
undubitable that sectoral representatives to the House of Representatives are among the "other
officers whose appointments are vested in the President in this Constitution," referred to in the first
sentence of Section 16, Art. VII whose appointments are subject to confirmation by the Commission
on Appointments (Sarmiento v. Mison, supra).

Nevertheless, there are appointments vested in the President in the Constitution which, by express
mandate of the Constitution, require no confirmation such as appointments of members of the
Supreme Court and judges of lower courts (Sec. 9, Art. VIII) and the Ombudsman and his deputies
(Sec. 9, Art. XI). No such exemption from confirmation had been extended to appointments of
sectoral representatives in the Constitution. Petitioner was appointed on April 6, 1988 pursuant to
Art. XVIII, Section 7 and Art. VII, Section 16, paragraph 2 of the Constitution, to wit:

6 April 1988

Madam:

Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of the
Constitution, you are hereby appointed MEMBER OF THE HOUSE OF
REPRESENTATIVES.

By virtue hereof, you may qualify to said position furnishing this office with copies of
your oath of office.

Very truly yours,

 (Sgd.) CORAZON C. AQUINO

Hon. TERESITA QUINTOS-DELES

(Annex "M", Petition, Rollo, p. 108.)

The invocation of Art. XVIII, Section 7 of the Constitution as authority for the appointment of
petitioner places said appointment within the ambit of the first sentence of Section 16, Art. VII;
hence, subject to confirmation by the Commission on Appointments under the Mison doctrine.
Petitioner's appointment was furthermore made pursuant to Art. VII, Section 16, paragraph 2 which
provides:

SEC. 16. ...

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

The reference to paragraph 2, Section 16 of Article VII as additional authority for the appointment of
petitioner is of vital significance to the case at bar. The records show that petitioner's appointment
was made on April 6, 1988 or while Congress was in recess (March 26, 1988 to April 17, 1988);
hence, the reference to the said paragraph 2 of Section 16, Art. VII in the appointment extended to
her.

Implicit in the invocation of paragraph 2, Section 16, Art. VII as authority for the appointment of
petitioner is, the recognition by the President as appointing authority that petitioner's appointment
requires confirmation by the Commission on Appointments. Under paragraph 2, Section 16, Art. VII,
appointments made by the President pursuant thereto "shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress." If indeed
appointments of sectoral representatives need no confirmation, the President need not make any
reference to the constitutional provisions above-quoted in appointing the petitioner, As a matter of
fact, the President in a letter dated April 11, 1989 had expressly submitted petitioner's appointment
for confirmation by the Commission on Appointments. Considering that Congress had adjourned
without respondent Commission on Appointments having acted on petitioner's appointment, said
appointment/nomination had become moot and academic pursuant to Section 23 of the Rules of
respondent Commission and "unless resubmitted shall not again be considered by the Commission."

Petitioners further contend that nowhere in the Constitution nor in Executive Order No. 198 is
mention made of the need for petitioner's appointment to be submitted to the Commission on
Appointments for confirmation. Executive Order No. 198 promulgated on June 18, 1687 before the
convening of Congress, is denominated: "Providing for the Manner of Nomination and Appointment
of Sectoral Representatives to the House of Representatives." We agree with the submission of
respondent Commission that the provisions of Executive Order No. 198 do not deal with the manner
of appointment of sectoral representatives. Executive Order No. 1 98 confines itself to specifying the
sectors to be represented, their number, and the nomination of such sectoral representatives.

The power of the President to appoint sectoral representatives remains directly derived from Section
7, Article XVIII of the Constitution which is quoted in the second "Whereas' clause of Executive
Order No. 198. Thus, appointments by the President of sectoral representatives require the consent
of the Commission on Appointments in accordance with the first sentence of Section 16, Art. VII of
the Constitution. More to the point, petitioner Deles' appointment was issued not by virtue of
Executive Order No. 198 but pursuant to Art. VII, Section 16, paragraph 2 and Art. XVIII, Section 7 of
the Constitution which require submission to the confirmation process.

WHEREFORE, the petition for prohibition and mandamus with preliminary injunction is hereby
DISMISSED for lack of merit. Without pronouncement as to costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.